Supreme Court Hears Texas Sodomy Case

March 28, 2003

Yesterday, March 27, 2003, the US Supreme Court heard oral arguments in the Texas sodomy case, Lawrence v. Texas. According to news reports and to my friend and fellow attorney, Mitchell Katine who attended along with the Lambda Legal team, the arguments went very well. Lawrence was represented by Paul M. Smith, a former Supreme Court law clerk and experienced practitioner in front of the Court. Smith admirably fielded 35 questions from the justices (including 23 from Justice Scalia) and seemed to hold the attention of the Court.

The State of Texas was represented by Chuck Rosenthal, Harris County, Texas District Attorney, making his first appearance before the Court. Mr. Rosenthal's lack of experience in this kind of argument was telling, and he seems to have missed even the softballs thrown to him by Scalia, who obviously favored upholding the sodomy statute. He first tried to argue that the two men caught having sex weren't homosexual, then responds to a question by Justice Kennedy as to whether mores have changed in the US by stating physical homosexual conduct is now more acceptable. Justice Scalia, surprised that the state was apparently arguing for the other side, asked Rosenthal whether he thought there was more public approval of homosexuality now. Undeterred, Rosenthal proceeded to argue that there is approval of homosexuality. But not of homosexual activity.

It was clear during the oral arguments that the conservative wing of the Court would oppose repeal and the liberal wing would favor it. Most likely, the Court will strike down the Texas law on the basis of equal protection, that is, the law discriminates against a particular class of people because it criminalizes same-sex sexual contact and not heterosexual contact. I expect the vote to be close, probably 5-4, with Chief Justice Rehnquist, Justice Scalia, and Justice Thomas most likely opposed and Justices Breyer, Souter, Stevens, and Ginsberg voting in favor of repeal. The swing votes will be Justices O'Connor and Kennedy, both of whom voted to strike down the anti-gay initiative in Colorado in 1996 (Romer v. Evans).

What was not clear was whether the Court would reverse its decision in the Georgia sodomy case, Bowers v. Hardwick, which was narrowly decided in 1986 by a vote of 5-4. Bowers rejected the right of privacy as it applied to sodomy (whether heterosexual or homosexual) and was based upon the fundamental rights argument used to strike down laws against contraception, abortion, and constraints against marital behavior. Smith explicitly asked the Court to reverse Bowers, which would ban all laws regulating sodomy even if they applied equally to heterosexuals and homosexuals.

A decision is expected in early summer.