How Far We've Come

Walter Dellinger and Dahlia Lithwick

How Far We've Come

Walter Dellinger and Dahlia Lithwick

How Far We've Come
An email conversation about the news of the day.
June 26 2003 8:59 AM

Walter Dellinger and Dahlia Lithwick

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This first entry by Walter Dellinger was written before the decision on Lawrence v. Texas was announced. The subsequent entries comment on the decision the court handed down this morning.

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Good morning, Dahlia, 

I did head down to Sutton's Drugstore yesterday (a Chapel Hill landmark since 1923) to see what the regulars at the breakfast counter were talking about, but, by the time I got there, almost everyone had eaten and left for work. George Tomasic, our barber, and realtor Jim Crisp, who were leaving as I arrived, offered to tell me what everybody said at breakfast so I could write it up as if I had been there. I was tempted, but then I remembered that whole New York Times fiasco. I'd hate to see my brief career in journalism come to such an early and ignoble conclusion. ("Exposed Breakfast Table Essayist Is Toast!"—New York Post)

I'll respond later today or Friday to your thoughts on the library Internet filter case and the interesting question of whether the solicitor general can define, or even amend, a new federal statute by how he answers questions about it at oral argument. But for now, I want to turn to Lawrence v. Texas, which will be decided by 10:30 this morning. From the oral argument last March (Paul Smith argued brilliantly on behalf of Mr. Lawrence, as you reported at the time), I have a very strong impression that the court will strike down the Texas homosexual sodomy law.   

An interesting question is: Which would be the more powerful progressive holding of the two grounds urged upon the court, equal protection or due process? A due process focus would hold that the law infringes upon a fundamental right shared by the entire community—the right to be free from governmental criminalization of private sexual relations between consenting adults. (Sen. Santorum can relax, by the way. Such a holding would not imperil bigamy or incest laws, which, while also regulating "private" conduct, are nonetheless fully justified by strong governmental interests.)

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If the court is not prepared to find a general right of sexual intimacy, there is an alternative basis for striking down the Texas law, which focuses on the fact that the law is gay-specific. Here I should note that I was counsel for a number of major national gay and lesbian organizations and other groups such as the AFL-CIO in this case. The brief we filed argued that the Texas statute also violates the Equal Protection Clause because it is limited to same-sex intimacy. This 1973 Texas law is thus not a product of general anti-sodomy ecclesiastical traditions—which broadly condemned non-procreative sexual acts in which anyone might engage—but of a uniquely 20th-century effort directed at gay people alone.

A holding on Equal Protection grounds would not reach as far as a due process holding; it would invalidate only the laws of Texas and three other states that prohibit only same-sex sodomy, leaving the general sodomy laws of nine other states standing. Such a holding would nonetheless constitute a powerful statement that homosexuality is not a proper basis for legislative distinctions. 

However the court rules, it is extraordinary how far the national culture has moved on this issue since Bowers v. Hardwick upheld Georgia's sodomy law in 1986. Most major law firms have openly gay and lesbian lawyers, and many major corporations with which I deal affirmatively seek to hire gay and lesbian employees. In a defining act that attracted far too little notice, Congress honored the Rev. Mychal F. Judge—the gay chaplain to the New York City Fire Department who was killed by falling debris in the lobby of the World Trade Center shortly after administering last rites to a dying firefighter—by passing a law in his name that allows public-safety officers killed in the line of duty to have federal benefits flow to same-sex partners. 

As we noted in our brief, in a passage written by Pam Harris,

Gay men and lesbians are partners and parents, neighbors and co-workers, occasional heroes. There is no legitimate and rational basis for singling out this group for branding as criminal.

We'll see what the court rules. But if they strike down the law and overrule Bowers v. Hardwick after having reaffirmed Bakke, it will be a surprising term for liberal results from a court thought of as conservative. The role of Justice O'Connor is critical to these results. I'll tell you later why I think she is a truly historic figure. 

Regards,

Walter

Walter Dellinger is a Duke University law professor and a Washington attorney.