Last edited: January 26, 2005

Sodomy on Trial

A divided U.S. Supreme Court gives little clue as to where it will fall on the legality of Texas’s antigay sodomy law

The Advocate, April 29, 2003

Not long into the March 26 oral arguments in Lawrence v. Texas, Justice Ruth Bader Ginsburg asked Harris County, Tex., district attorney Charles Rosenthal whether the state allowed same-sex couples to adopt. Rosenthal, who was arguing in favor of Texas’s antigay sodomy law, was stumped by the question, so eventually Justice Stephen Breyer answered for him: Yes.

“It would seem relevant to your argument,” Ginsburg noted dryly, staring at Rosenthal. Indeed, not only had Rosenthal displayed a critical gap in knowledge of Texas law, but he unwittingly underscored Ginsburg’s point: The state’s application of sodomy laws to same-sex couples is arbitrary and could potentially raise serious questions about the equal protection clause of the U.S. Constitution.

If Supreme Court cases were decided by the lawyers’ performance before the court, the Texas sodomy law would be history. Rosenthal was thoroughly outclassed by Paul Smith, the Supreme Court case veteran who argued for the plaintiffs, John Lawrence and Tyron Garner.

“Rosenthal appeared to be reading at the start of the argument, which the court frowns on, and could not answer one of Justice Ginsburg’s questions,” said Kenneth Jost, editor of The Supreme Court A to Z, a highly regarded guide to the court’s rulings. “Smith didn’t miss a beat.”

Aside from the exchange between Ginsburg and Rosenthal, there were few clues to where the high court may come down in June, when it is expected to decide the fate of the Texas law and possibly that of the existing sodomy laws in 12 other states.

Chief Justice William Rehnquist and Antonin Scalia, generally considered the court’s most conservative members, peppered Smith with questions about Texas’s right to regulate sexual behavior. “Almost all laws are based on disapproval of some people or conduct. That’s why people regulate,” Rehnquist declared. The court’s two key swing votes, Anthony Kennedy and Sandra Day O’Connor, asked only a few questions and did not tip their hands either way.

“We went into the argument feeling optimistic, and we left the argument feeling the same way,” said Michael Adams of Lambda Legal Defense and Education Fund, a gay legal advocacy group representing the plaintiffs. “That’s all you can ask for.”

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