Last edited: January 24, 2005

U.S. Supreme Court Weighs Landmark Case, March 26, 2003

By Ann Rostow, / Network

SUMMARY: The U.S. Supreme Court heard arguments on Wednesday in what’s been called “the most important gay rights case in a generation.”

The U.S. Supreme Court heard arguments on Wednesday morning in Lawrence and Garner v. Texas, the sodomy challenge that lead counsel Ruth Harlow of Lambda Legal Defense called “the most important gay rights case in a generation.”

Arguing on behalf of Lambda’s clients, Houstonians John Lawrence and Tyron Garner, was Paul Smith, a constitutional expert from Jenner & Block, with several Supreme Court appearances under his belt.

Smith was hammered by questions from Justice Antonin Scalia, considered one of the most conservative members of the court. Scalia took turns with Chief Justice William Rehnquist asking Smith to explain how the right to engage in homosexual sex can be considered deeply rooted in our nation’s history, or how it can meet the court’s other lofty definitions of a “fundamental right.”

Bans on same-sex sodomy, Smith noted, are not long American traditions, but fairly recent developments. As Justice Souter elicited from Smith’s opposing counsel, Harris County District Attorney Charles Rosenthal, the Texas Homosexual Conduct law was passed not in 1873, but in 1973. As for the fundamental right to engage in sodomy, the right at issue is more aptly described as the right to conduct a private, consensual, noncommercial sex life without government interference.

What if flagpole sitting had been criminalized by all states in the past, Scalia speculated, and what if many states dropped their prohibitions? Would that make flagpole sitting a “fundamental right”? As for the argument that the Texas law violates the Equal Protection Clause by treating homosexual sex differently from heterosexual sex, Scalia observed that rape laws only apply to heterosexuals. “Are they unconstitutional, too?” he asked.

Discussing Equal Protection, Smith returned to the central idea that unless the state can pass the “rational basis test,” i.e., unless it can offer a rational relationship between a law and a legitimate state interest, a discriminatory law cannot survive constitutional scrutiny.

“If you were to win this case,” said Chief Justice Rehnquist, “how could a state prohibit homosexuals from teaching kindergarten?” Such a prohibition, Smith replied, would also have to pass the rational basis test.

All eyes were fixed on swing justices, Sandra Day O’Connor and Anthony Kennedy. But unlike most of their colleagues, they did not show their hands. O’Connor asked Smith whether Texas could resolve its equal protection challenge by outlawing anal and oral sex for heterosexuals. Smith answered that such a revision would still violate privacy rights.

Later, she asked whether he was asking the court to use a standard of review higher than the “rational basis test.” Since the law could not survive the lowest standard, Smith said, a higher level of scrutiny was not necessary.

Kennedy’s few comments were equally unrevealing.

Arguing for the state, Charles Rosenthal tried to articulate Texas’ interest in banning homosexual sex, often relying on appeals to morality, marriage and procreation.

“Give me a straight answer,” asked Justice Breyer at one point, to the amusement of the courtroom. After another explanation from Rosenthal, Breyer characterized the state’s position with the couplet: “I do not like thee, Dr. Fell. The reason why, I cannot tell.”

While Justice Stevens said little, and Justice Thomas said nothing, court watchers anticipate Stevens will vote with Breyer, Souter and Ginsburg for the petitioners, while Thomas is expected to side with Scalia and Rehnquist for the state. Court speculation is a dangerous practice, however, and few legal analysts would hazard a breakdown of the majority and minority at this stage.

Nonetheless, gay activists and lawyers were visibly excited after the arguments, and the air was optimistic. The court is expected to rule in late June or July.

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