The room seemed strangely void of tension, the give-and-take of arguments almost flat, as if the decision already had been reached, when Lawrence v. Texas came before the U.S. Supreme Court March 26.
The Court was not yet of one mind on the constitutionality of the Texas Homosexual Conduct law; still, it seemed that only Justice Antonin Scalia on the far right actively defended it, while most of the other Justices were looking for arguments to throw it out.
Paul M. Smith, an openly gay attorney who heads up the appellate section of Jenner & Block, a leading Washington, D.C., law firm, made the case against the law. He said there was 'a right for everyone to decide for themselves' what to do in the privacy of their own bedroom. And that the state required a compelling reason to regulate the activity of one group of citizens but not another.
As is their tradition, the Justices began peppering him with questions almost immediately.
Justice John Paul Stevens said the issue of substantive due process through the 8th Amendment to the Constitution was 'deeply rooted' in law.
But not all activity banned by law—the example he used of flagpole sitting—reaches a level of constitutional protection. He asked why this case did reach that level.
The leading question gave Smith the opportunity to expound on how sexual intimacy with a partner is fundamental to the daily lives of people, a fact that the Court had expanded over the years through a series of decisions dealing with contraception, abortion, and similar matters.
While these cases were within the context of marriage, it was illogical to assume that non-married people had no similar rights. Smith called this lack of precedent 'a jagged piece missing' in the case law of the Court.
Justice Scalia tried to downplay the significance of sodomy laws by citing its 'lack of enforcement ... it is not the type of thing that police are out looking for.' He raised the bogymen of rape laws as sometimes being specific to one sex, adultery, and polygamy laws.
Smith responded that the state would have to justify the singling out of a certain group in order for the law to be constitutional. As for polygamy, the state creates marriage 'for its own purposes' and can enforce that contract which is freely entered into. Criminal laws, such as the sodomy statute, are quite different and require a higher level of justification.
Justice Ruth Bader Ginsburg asked of the request to overturn the infamous Bowers v. Hardwick decision of 1986 that denied a right to sodomy.
Smith said that Bowers posed the legal question too narrowly, it grossly distorted the factual history of sodomy laws, and it was based upon false assumptions of the reality of gay lives. Today, there are gay families that function within much the same context as that of marriage.
Charles Rosenthal, arguing for the State of Texas, said there was 'no right to engage in extramarital conduct,' and thus the state legislature was the proper place to decide the validity of a sodomy law. The Bowers decision 'is still good law.'
Justice Scalia offered that there is a difference between an unwillingness to prosecute sodomy cases and embracing that conduct as a right.
But Justice Stephen Breyer said that was the wrong question. It is the right of the people to do what they want to do, absent a compelling state reason to proscribe such activity. Even if sodomy laws are not often enforced, people fear that they might be. 'I'd like to hear your straight answer to these points,' he said, generating laughs across the courtroom.
Rosenthal bumbled on about how the law was meant to 'preserve marriage and the family,' and Texas has the right to set moral standards.
But Breyer could see no rational basis for the distinction that the state had drawn between heterosexuals and homosexuals engaging in the same acts.
Justice David Souter asked why the state did not prosecute similar heterosexual conduct.
Rosenthal said, 'It can lead to marriage and procreation.'
Later, outside in the glorious spring sun on the front plaza of the Court building, Ruth Harlow told reporters that Rosenthal was 'grasping at straws' when he tried to justify the law on the basis of health issues, which was not contained in their brief, and that the defendants were not identified as homosexual. 'The reason they made arguments like that is that they have no good arguments.'
Harlow is the lead attorney on the case and legal director of Lambda Legal, which handled the appeal to the Supreme Court.
'States can't come in and regulate only one group of people, that's not a rational basis,' said Smith. 'They need to point to something else to rationalize discrimination.'
He rejected Texas's argument that the state was preserving the institutions of marriage. Texas 'doesn't regulate adultery, it doesn't regulate fornication, it doesn't regulate sodomy among different sex couples. It's totally irrational. The only ones regulated here are homosexuals.'
Rosenthal tried to defend the undefendable a few minutes later. 'If there is to be social engineering, it should be done in the state house by the legislators. If this case were to fall, it would lead directly to the marital laws of Texas.'
He defended raising health issues at this late point 'because it was a consideration that the Court ought to be able to use to determine whether or not there is a rational basis' for the law. 'They don't have to use the rational basis that we have in our brief. They can use any rational basis that they want.'
Rosenthal said that he was not antigay and had gay employees in his office. A reporter asked him that if he knew a staff member to be openly gay, and to be in a relationship, presumably engaging in sexual activity made illegal by the law, did he not have an obligation to investigate and prosecute?
He waffled on the question. 'We might have people on our staff that speed ... but we don't follow every district attorney and investigator.'
Rev. Fred Phelps and his 'God Hates Fags' family entourage had protested outside of the Court prior to the oral arguments; however, they were gone by the time the arguments were completed.
