Supreme Court Weighs Landmark Case
March 26, 2003
By Ann Rostow, Gay.com / PlanetOut.com Network
SUMMARY: The U.S. Supreme Court heard arguments on
Wednesday in what’s been called “the most important gay rights case in a
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
“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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