The Supreme Court tries sodomy.

The Supreme Court tries sodomy.

The Supreme Court tries sodomy.

Oral argument from the court.
March 26 2003 8:37 PM

The Supreme Court Tries Sodomy

… and discovers that Texas is confused about it too.

Before we get hung up in the nuts and bolts of Lawrence v. Texas, let's be clear: There are two kinds of homophobia, at least in Texas. The first is a hatred of all things homosexual. That's bad. The other involves a certain fondness for gay people—an acceptance that they are A-OK, so long as they don't commit any of those sex acts they're inclined toward. This sort of Will & Grace ("gays are so cute, but don't show me what they do in bed") homophobia seems not only to be defensible according to the state of Texas; it also appears to be the lynchpin of their argument in today's long-awaited gay sodomy case.

The facts of Lawrenceare straightforward and mostly undisputed: Texas police entered the apartment of Houston resident John Lawrence in response to a neighbor's fabricated claim that a man in there with a gun was "going crazy." What the cops actually found was Lawrence and Tyron Garner having anal sex, for which they were promptly arrested under a Texas law prohibiting "deviate sexual behavior" (i.e., oral or anal sex) between persons of the same gender.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.


Pause here to consider that bestiality is not considered "deviate" under Texas law.

Lawrence and Garner were jailed, prosecuted, and fined over $200 each. They challenged the law, arguing that it violated the 14th Amendment's promise of privacy in intimate sexual matters and its guarantee of equal protection under the law. They prevailed in the Court of Appeals for the 14th District of Texas, but lost, 7-2, when the court reheard the case en banc. So they appealed to Texas' highest appellate court, which declined to hear it, and on to the U.S. Supreme Court, where their argument was heard this morning.

Lawrence and Garner have two possible routes to invalidating the Texas law, and today they press both. The "fundamental rights" argument tracks a line of contraception and abortion cases holding that certain intimate, private, family-related choices may be protected from state interference. This was the basis of Roe v. Wade. The "equal protection" argument holds that states can't promulgate laws discriminating against certain classes of people unless there is some "rational basis" for the law and a "legitimate government purpose" behind it. Since the Supreme Court decided their last homosexual sodomy case, Bowers v. Hardwick, in 1986 on the grounds that the first theory (privacy and fundamental rights) didn't apply to gay sodomy, they could overturn the Texas law on equal protection grounds without throwing out the Bowers precedent.So confusing is the argument, as it pings back and forth between due process and equal protection analysis, that at some point Justice Antonin Scalia asks Paul Smith, who represents Lawrence and Garner, to raise his left hand while arguing one track and his right while arguing the other.

Chief Justice William Rehnquist immediately challenges Smith on the claim that there is some longstanding privacy right to commit gay sodomy. This was the basis of the Bowers decision—a decision in which Rehnquist was in the majority. "The right has to have been recognized for a long time," he argues. Smith responds that laws banning homosexual conduct didn't even exist until the 19th century. Scalia argues that sodomy laws have been on the books from the beginning of the republic, they just included heterosexual and married couples.


"It's conceded by the state of Texas that married couples can't be regulated in their private sexual decisions," says Smith. To which Scalia rejoins, "They may have conceded it, but I haven't."

Scalia insists that a liberty interest (under the fundamental-rights theory) needs to be "deeply rooted in tradition," and the mere fact that some of those state anti-gay laws have since been repealed doesn't guarantee a fundamental right. He suggests that even if all states had "repealed their laws against flagpole-sitting," there would not necessarily be a fundamental right to flagpole-sit.

(Flagpole-sitting is not a crime in Texas, by the way, unless said pole has been very strategically placed on your partner's anatomy.)

Smith explains that fundamental rights are understood to apply to decisions about "sexual relations in the home" and decisions about "procreation and non-procreation." Rehnquist interjects that the laws at issue have little to do with "non-procreation." Smith says these laws say "you can't have sexual activity at all" if you are gay and Scalia objects: "They just say you can't have sexual intimacy with a person of the same sex." See? No problem. Homosexuals remain perfectly at liberty to have heterosexual sex in Texas.


Justice Sandra Day O'Connor—who speaks very little this morning—asks Smith whether he objects to laws criminalizing heterosexual sodomy. (Nine states currently have such laws on the books; four others—Texas, Oklahoma, Kansas, and Missouri—proscribe only gay sodomy.) Smith responds that all 13 state laws are unconstitutional under his first (fundamental privacy) point. Then Scalia wonders whether state statutes that criminalize rape or adultery only among opposite sexes are similarly unconstitutional. Smith argues that this is quite different from "giving all people free rein to make sexual decisions except one small group of people." Scalia retorts, "You can put it that way. You can make it sound puritanical. But lots of laws make moral judgments. What about the laws against bigamy?"

Smith argues that there are neutral justifications for bigamy laws—but none for homosexual sodomy laws. And Rehnquist, in an odd little celebration of the narrow-minded and the judgmental, offers, "Almost all laws are based on disapproval of some people or some conduct. That's why people regulate."

Smith explains that the anti-sodomy laws have pernicious secondary effects—keeping gay parents from gaining child visitation or custody or employment, for instance—and Rehnquist wonders whether, if these laws are stuck down, states can have laws "preferring non-homosexuals to homosexuals as kindergarten teachers." Smith replies that there would need to be some showing that gay kindergarten teachers produce harm to children. Scalia offers one: "Only that children might be induced to follow the path to homosexuality."

Charles A. Rosenthal Jr. is the district attorney from Harris County, Texas, and it falls upon him to produce some rational reason for the Texas anti-sodomy law. He runs aground when he tries to argue that the two homosexuals caught doing homosexual things in this case may not actually be homosexual. "I don't understand what that means," says Scalia.


"You are not homosexual if you commit one homosexual act," replies Rosenthal. Everyone is promptly confused.

In response to a question from Justice Anthony Kennedy as to whether Bowers is still good law, Rosenthal replies that mores have changed and that "physical homosexual intimacy is now more acceptable." Since he suddenly seems to be arguing the wrong side of the case, an astonished Scalia steps in to say, "You think there is public approval of homosexuality?"

Rosenthal catches his pass, then runs the wrong way down the field: "There is approval of homosexuality. But not of homosexual activity." Scalia wonders how there can be such widespread "approval" if Congress still refuses to add homosexuals to classes of citizens protected by the civil rights laws. "You're saying there's no disapproval of homosexual acts. But you can't ... say that," he sputters.

Justice Stephen Breyer asks one of his famed three-part questions and, when Rosenthal doesn't answer immediately, Breyer interrupts: "That's not my question. I'd like to hear your straight answer." The gallery busts up. Rosenthal says there's a good place to draw the line of privacy and fundamental rights, and that line is "at the bedroom door."


"But the line is at the bedroom door in this case!" yelps Breyer. To which Rosenthal says something suggesting that the two co-plaintiffs (who have been fighting this case together since 1998) may not have been having consensual sex.

Breyer, quoting shamed Oxonian  Tom Brown, adds that the whole justification for this law can be reduced to: "I do not like thee Dr. Fell/ The reason why I cannot tell." Breyer asks whether Texas could make it against the law to "tell really serious lies" at the dinner table, and when Rosenthal sounds like he's about to say Texas can, Scalia interrupts to say, "Don't you think what laws a state can constitutionally pass has something to do with the sorts of laws that have a long tradition of being passed?"

"Certainly," says Rosenthal.

Justice David Souter asks whether Texas really has a 200-year tradition of criminalizing gay sodomy. "Was this law on the books in 1803?" he asks.

"Texas wasn't a state in 1803," offers Rosenthal.

"Good question!" applauds Scalia. "Don't fall into that trap!!"

Breyer notes that during World War I people also thought it "immoral" to "teach German in schools. … Immoral is a hard line to draw."

"There is a rational basis," insists Rosenthal.

"You're not giving us a rational basis," snaps Breyer.

"The rational basis," says Scalia, "is that the state thinks it's immoral. Like bigamy or adultery."

"Or teaching German," grins Breyer.

Souter wonders why Texas doesn't limit sodomy among heterosexuals. "Because it can lead to marriage and procreation," says Rosenthal. (So you really want your daughters to be good at oral sex, folks, if you want to see them married.) Rosenthal closes by telling the court that Texas is not really homophobic. In fact, they recently passed hate crime legislation making it illegal to commit crimes based on sexual orientation. How sweet. Justice Ruth Bader Ginsburg asks why any homosexual would run for public office in Texas, knowing he'll be charged by his opponents with being a lawbreaker. Rosenthal assures her that he could only be called a lawbreaker if he "commits that act."

So—to sum up—any homosexuals out there who have renounced the actual having-of-sex, and are just gay for the privilege of being stigmatized: Know that you are not only loved in Texas, you may well be its next governor.