U.S.
Supreme Court Weighs Landmark Case
Gay.com ,
March 26, 2003
By Ann Rostow, Gay.com / PlanetOut.com Network
SUMMARY: The U.S. Supreme Court heard arguments on
Wednesday in what痴 been called 鍍he 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 鍍he most important gay
rights case in a generation.?
Arguing on behalf of Lambda痴 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痴 history, or how it can meet the court痴 other lofty definitions
of a 吐undamental right.?
Bans on same-sex sodomy, Smith noted, are not long
American traditions, but fairly recent developments. As Justice Souter
elicited from Smith痴 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 吐undamental 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. 鄭re they unconstitutional,
too?? he asked.
Discussing Equal Protection, Smith returned to the
central idea that unless the state can pass the 途ational 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.
的f you were to win this case,? said Chief Justice
Rehnquist, 塗ow 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辰onnor and Anthony Kennedy. But unlike most of their colleagues, they did
not show their hands. O辰onnor 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 途ational basis test.? Since the law
could not survive the lowest standard, Smith said, a higher level of scrutiny
was not necessary.
Kennedy痴 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.
敵ive 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痴 position with the couplet: 的
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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