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