Lawrence and Garner v. Texas - Oral Argument

Argument of Paul M. Smith

Chief Justice Rehnquist: We'll hear argument next in No. 02-102, John Geddes Lawrence and Tyron Garner v. Texas.

Mr. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court.

The State of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the State happens to disapprove of.

It further claims that there's no constitutional problem raised by a criminal statute that is directed not just at conduct, but at a particular group of people, a law that criminalizes forms of sexual intimacy only for same-sex couples and not for anyone else in the State who has... has the right to make a free choice to engage in the identical conduct.

Petitioners are two adults who were arrested in a private home and criminally convicted simply because they engaged in one of the forms of sexual intimacy that is on the banned list in the State of Texas for same-sex couples.

They bring two constitutional claims to the Court today.

First, among the fundamental rights that are implicit in our concept of order of liberty, must be the right of all adult couples, whether same-sex or not, to be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression.

Second, there's no legitimate and rational justification under the Equal Protection Clause for a law that regulates forms of sexual intimacy that are permitted in the State only for same-sex couples, thereby creating a kind of a second class citizenship to that group of people.

Chief Justice Rehnquist: On your substantive due process submission, Mr. Smith, certainly, the kind of conduct we're talking about here has been banned for a long time.

Now you point to a trend in the other direction, which would be fine if you're talking about the Eighth Amendment, but I think our case is like Glucksberg, say, if you're talking about a right that is going to be sustained, it has to have been recognized for a long time.

And that simply isn't so.

Mr. Smith: The Court's cases, Mr. Chief Justice, say that history is a starting point, not the end point of the analysis.

And I think that it's important to look at history as a whole and one of the errors that I think that the Court made in Bowers v. Hardwick was only looking at the issue in terms of homosexual sodomy and not looking at the issue in general terms, which is the right of everyone to decide for themselves about consensual private sexual intimacy.

If you look at the history as a whole, you find a much more complicated picture.

First of all, you find that sodomy was regulated going back to the founding for everyone and indeed the laws in the 19th century didn't focus on same-sex couples, they focused on particular--

Justice Scalia: Well, you're getting to your equal protection argument now.

Let's... let's separate the two.

The first is, your... your... your fundamental right argument, which has nothing to do with equal protection?

Mr. Smith: --Well, Your Honor--

Justice Scalia: So the same-sex/other-sex aspect doesn't come into it--

Mr. Smith: --I think it does come into it, because if you're going to suggest that the state of the law in the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.

Justice Scalia: --It may well be, but so were same-sex couples.

Mr. Smith: Indeed, they all were, Your Honor.

Justice Scalia: So all same-sex couples could not... could not perform this act lawfully.

What more do you need than that?

It was prohibited.

When you go beyond that and say, oh, but it was also prohibited for... for other sex couples, you're getting into an equal protection argument, it seems to me, not a fundamental right argument.

Mr. Smith: I guess I'm suggesting Mr.... Justice Scalia, that it's been conceded here by this State, it was conceded by the State of Georgia 17 years ago, that married couples can't be regulated as a matter of substantive due process in their personal sexual expression in the home.

That means that the state of the law on the books in the 19th century can't be the deciding factor.

Justice Scalia: They conceded it.

I haven't conceded it.

Mr. Smith: Your Honor.

That may well be true.

I was... I was working with the assumption that there may be Justices who... of the view that married couples do have such a right and I am suggesting that the real issue here is whether that fundamental right extends outside the marital context into other unmarried couples who form bonds and have... and... for whom sexual intimacy plays an equally important role in their lives.

Justice Ginsburg: Were you talking specifically about this Eisenstadt against Baird where there was an unmarried couple... while there was an unmarried person and the conduct in question would have been perhaps in the 19th century, early 19th century, criminal?

Are you talking about fornication?

Mr. Smith: Yes, Justice Ginsburg.

I think the Court in... has moved from Griswold to Eisenstadt... has moved in the contraception area outside of the marital context to the unmarried context, certainly the right... the qualified right to abortion applies to unmarried people, as well as married people.

And I think that the Court in... in looking at this issue of the scope of the fundamental right to make choices about sexual intimacy ought to take into account not just the state of law on the books in the 19th century but a couple of other factors, one the change in enforcement in the last 50 years because the Court's fundamental rights cases all do look at current laws, as well as 19th century law and also even in the 19th century, the fact that there's no record of active enforcement of these laws against conduct... of adults consensual occurring in the private setting and that's true for married couples, it's true for different-sex couples who weren't married, it's true for same-sex couples.

The enforcement of the sodomy laws of this country going back to the founding involves coercion, it involves children.

It involves public activity.

It doesn't involve the kind of conduct that's at issue here.

So you really have a tradition of respect for the privacy of couples in their... in their home, going back to the founding and I think then what began to happen in 1960 was a recognition that we should take that tradition and... and turn it into positive law on the books.

And so you now had three quarters of the States who no longer regulate this conduct for anyone based on a recognition that it's not consistent with our basic American values about the relationship between the individual and the State.

Justice Scalia: Well, it depends on what you mean by our basic American values, to revert to what the Chief Justice was suggesting earlier.

Really what's at issue in this case is whether we're going to adhere to... in the first part of the case, not the equal protection aspect.

It's whether we're going to adhere to what... what we said in... in Glucksberg, mainly that before we find a substantive due process right, a fundamental liberty, we have to assure ourselves that that liberty was objectively deeply rooted in this Nation's history and tradition.

That's what we said in Glucksberg and we've said it in other cases.

Or are we going to depart from that and go to the approach that we've adopted with regard to the Eighth Amendment, which is it evolves and changes in... in social values will justify a new perception of what is called unusual punishment.

Now, why should we... why should we slip into the second mode?

I'm... I mean, suppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws.

Does that make flagpole sitting a fundamental right?

Mr. Smith: No, Your Honor, but the Court's decisions don't look just at history, they look at the... at the function that a particular claimed freedom plays in the lives of real people.

That's why contraception became an issue.

That's why abortion became an issue.

Justice Scalia: I don't know what you mean by the function it plays in the lives of real people.

Mr. Smith: The Court has said that--

Justice Scalia: Any law stops people from doing what they really want to do.

Mr. Smith: --The Court has said that it's going to use reasoned judgment to identify a realm of personal liberty that involves matters of central and core to how a person defines their own lives, and relates to key other people.

It's about moral upbringing of children in the home.

It's about procreation or nonprocreation in your sexual relations with your mate.

It's about basic questions of what kind of a family you're going to live with and other intimate associations.

Chief Justice Rehnquist: Well, you say it's about procreation or nonprocreation, but none of the cases that you have talked about involved nonprocreation, did they?

Mr. Smith: They certainly involved the right to decide to engage in sexual relations with... while preventing procreation, that's what... that's what Griswold and Eisenstadt and Carey all say you have a right to do.

That there's a right to decide whether to bear and beget children and then that right resides with unmarried people as much as it resides with married people.

And I submit to you that it's illogical, fundamentally illogical to say that an unmarried couple has a right free of State intrusion to decide whether or not to have procreative sex or nonprocreative sex, but doesn't have the right to be free from State intrusion... free from a law that says you can't have any sexual intimacy at all.

There's a... there's a jagged piece missing from the edifice of this Court's substantive fundamental rights jurisprudence.

Justice Scalia: It doesn't say you can't have... you can't have any sexual intimacy.

It says you cannot have sexual intimacy with a person of the same sex.

Mr. Smith: This particular law does that, yes, Your Honor, but certainly our... our submission is that fornication laws and... and laws involving sodomy regulation more broadly would be equally unconstitutional, because they involve--

Justice Souter: But your position, as I understand it, is even if you take the narrowest view of Glucksberg and even if you say there's got to be a positive historical sanction, that in fact there is no historical... no substantial historical evidence to the contrary because, A, the... the sodomy laws were not enforced against consensual activity historically and B, they were not aimed at homosexual as opposed to sodomy in general?

Mr. Smith: --Right.

Justice Souter: Is that... your historical point, you say even if I accept your argument, I should win?

Mr. Smith: Yes, Your Honor.

I think first of all that the positive law, the law on the books proves too much because it intruded right into the marital bedroom and that the record of enforcement which may be more informative actually supports us rather than supporting the notion that this is something that can be regulated.

Justice Scalia: What do you mean by the record of enforcement, that there were... that what happened in this case was an accidental intrusion of the police?

They didn't come into the bedroom looking for people conducting illicit sexual relations?

They were there for another reason and happened to discover these... these men in that conduct.

What do you mean by lack of enforcement?

The police have not gone around knocking on bedroom doors to see if anyone... I mean... this is not the kind of a crime that the police go around looking for, but do you have any evidence to show that when they... when they found it being committed, they turned a blind eye to it and did not prosecute it?

Mr. Smith: The evidence we have is the... is the absence of reported cases discussing arrests for that kind of conduct.

Justice Scalia: Well, that's because it's... it's an act committed in private, and... and the police respect the privacy of... of one's home, of one's bedroom, and so they don't investigate and find it.

But it seems to me what you would need is evidence that when the police discovered this matter, they said, oh, well, these are not laws that we enforce.

I don't see any evidence of that sort.

Mr. Smith: Certainly it seems to us there's a significance to the fact that it has never been treated as, for example, drug use in the home has been treated.

And people do... the police obviously do actively seek to infiltrate homes to find that kind of activity, it's been treated in a categorically different way.

But perhaps--

Justice Breyer: To what extent can you characterize it?

I mean, the ACLU brief has a lot of evidence along this line.

I... and it seemed to me they want to characterize it as saying that the history has gone exactly the opposite direction than what's been suggested.

But if you go back to colonial times really, the laws not only were different but look at the prosecutions.

And they did prosecute people for sex crimes.

But they didn't prosecute people for same-sex crimes.

And then if you go across the history, it's only recently that people have been prosecuted for same-sex crimes.

Is that a fair characterization?

What is the real record?

Mr. Smith: --The argument about 19th century enforcement is that they didn't prosecute anyone for private and consensual crimes involving adults, that they worried about children, they worried about public activity, they worried about coercion, but that they didn't worry about same-sex or different-sex sodomy.

Now as to the equal protection point which I think I should get to in my remaining time.

This is a statute which in addition to intruding into that area of important fundamental protections, limits its focus just to one small minority of the people of the State of Texas.

It says that these specified forms of sexual intimacy called deviate sexual intercourse are illegal only for same-sex couples and not for anyone else in the State of Texas.

Justice O'Connor: Well, what about a statute that covered both?

Mr. Smith: Well, I think that would be unconstitutional under my first point, Your Honor.

Justice O'Connor: Right.

Mr. Smith: I think there is a multiple... multiply unconstitutional statute, because it does the second thing as well, it says that--

Justice Kennedy: Well, if the statute covered both, would there be an equal protection argument?

Mr. Smith: --If there was a record of enforcement almost exclusively as to same-sex couples, I think there would be potential constitutional problems there, but the statutory language itself would not involve an equal protection problem of the same sort that we're dealing with here.

Justice Scalia: Mr. Smith, aren't there a lot of statutes like that?

Aren't there statutes in many States about adultery that don't cover sexual relations of one of the married couple with someone else of the same sex?

Are they unconstitutional because of denial of equal protection?

Mr. Smith: I don't know whether statutes actually are written that way, Your Honor.

The point I would make is that when a statute--

Justice Scalia: What about rape laws?

There are... there are rape laws that... that only apply to... to male/female rape.

Mr. Smith: --That may be as well.

I think--

Justice Scalia: You think that they're unconstitutional?

Mr. Smith: --I didn't suggest that they're unconstitutional.

My point is that when a statute is limited to one particular group of people, particularly a minority of people in the State, that that limitation itself has to be justified under equal protection, that that's a classification of people, not merely a definition of conduct.

And that if the... if the justification of the line that was drawn here is... is insufficient as a matter of mere rationale basis analysis.

Because--

Justice Scalia: I don't understand that.

Suppose the State has a rape law that... that, you know, that really requires the penetration of the female sex organ by... which is the classic common-law definition definition of rape, and it has no... no law of... about homosexual rape.

You think that that law would be unconstitutional?

Mr. Smith: --I think it would have to be justified by the State.

They may well come in with evidence that this is not a problem that needs to be addressed or that the victims are more able to protect themselves, they may have... they may have--

Justice Scalia: One step at a time?

This is more common?

This is... or this is something that we find more... more... more... more odious?

Mr. Smith: --Well, the one thing that I submit, the Court, the State should not be able to come in to say is we are going to permit ourselves the majority of people in our society full... full and free rein to make these decisions for ourselves but there's one minority of people don't get that decision and the only reason we're going to give you is we want it that way.

We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy and the State should have no basis for intruding into our lives but we don't want those people over there to have the same right.

Justice Scalia: I mean you you can put it that way, but society always... in a lot of its lives makes these moral judgments, you can make it sound very puritanical, the... you know, the laws... the laws against bigamy, I mean, who are you to tell me that I can't have more than one wife?

You blue-nose bigot.

Sure.

You can make it sound that way, but these are laws dealing with public morality.

They've always been on the book, nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them.

Why is this different from bigamy?

Mr. Smith: First of all, the first law that's appeared on the books in the States of this country that singles out only same sex sodomy appeared in the '60s and the '70s and it did not... and it does not go way back, this kind of discrimination.

Now, bigamy involves protection of an institution that the State creates for its own purposes and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples behaviors, we include a criminal law which is where the most heightened form of... of people protection analysis ought to apply.

This case is very much like McLaughlin, Your Honor, where you have a statute that said we're going to give an specially heightened penalty to cohabitation, but only when it involves a white person with a black person.

That interracial cohabitation is different, and the State there made the argument we're merely regulating a particular form of conduct, and that's a different form of conduct than... than intro racial cohabitation.

And this Court very clearly said no.

You're classifying people.

And that classification has to be justified.

And this Court at many times said a merely disapproval of one group of people, whether it be the hippie communes in Moreno or the mentally retarded in Cleburne, or indeed gay people.

Chief Justice Rehnquist: But all... almost all laws are based on disapproval of either some people or some sort of conduct.

That's people legislate.

Mr. Smith: And what this Court does under the equal protection clause is... is... standard as a bull work against arbitrary government when the... when there is no rational justification for the line that is drawn.

Justice O'Connor: Well, do you... do you... understood in order to win under an equal protection argument, do you have to apply some sort of heightened scrutiny?

Mr. Smith: We certainly do not think we do, Your Honor.

We think this fails rational basis scrutiny, just as the law did in Romer, in Cleburne, in Moreno, in Eisenstadt, all of those laws were thrown out under rational basis scrutiny, because the State basically didn't come up with anything other than we want it that way.

We want these people to be excluded.

We'd had distaste for them.

We disapprove of them.

It's mere disapproval, or hostility, however historically based, is not sufficient.

And certainly even applying the rational basis--

Justice Scalia: We said the opposite in bowers, didn't we?

Overrule bounds essentially on that point?

Mr. Smith: --Well, certainly bowers is not an equal protection case and it didn't involve this kind of discrimination.

Justice Scalia: The equal protection and on to the--

Mr. Smith: No I was still talking about the level of scrutiny under equal protection, Your Honor.

Justice Scalia: --Maybe you ought to hold up one hand so I'll know which?

Mr. Smith: It's hard when you have these two points to shift back and forth.

Justice Scalia: I understand.

We had the same problem in the last case--

Mr. Smith: Three weeks ago, yes, Your Honor.

The... but the Court in applying even the rational basis standard has not been insensitive to the reality of what the world is like, and to the fact that some groups of... some classifications tend to be involving minorities that have had histories of discrimination against them and that the overall effect of some line-drawing can be very harmful.

In Romer itself, the Court looked at the actual effects of the... of the amendment in the Constitution and all of the many ways in which it caused harm.

Here you have a statute that while it... while it purports to just to regulate sexual behavior, has all sorts of collateral effects on people.

People in the States who still regulate sodomy everyday they're denied visitation to their own children, they're denied custody of children, they're denied public employment.

They're denied private employment, because they're labeled as criminals merely because they've been identified as homosexuals.

And that we submit--

Chief Justice Rehnquist: --If you prevail, Mr. Smith, and this law is struck down, do you think that would also mean that a State could not prefer heterosexuals to homosexuals to teach kindergarten?

Mr. Smith: --I think the issue of... of preference in the educational context would involve very different criteria, Your Honor, very different considerations, the State would have to come in with some sort of a justification.

Justice Scalia: A justification is the same that's alluded to here, disapproval of homosexuality.

Mr. Smith: Well, I think it would be high... high problematic, such a custody case.

Justice Scalia: Yes, it would?

Mr. Smith: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school.

Justice Scalia: Only that the children might... might be induced to... to follow the path of homosexuality.

And that would not be... that would the not be enough?

Mr. Smith: Well, I... I think the State has to have a greater justification for its discrimination than we prefer pushing people towards heterosexuality.

That amounts to the same thing as disapproval of people's choices in this area and there has to be a more... more reasons and justifiable distinction than simply we prefer this group of people, the majority, instead of this group of people, the minority.

Justice Jackson in the railway express case said very eloquently that the equal protection clause is an important bull work against arbitrary government because it's there to make sure that legislators don't avoid political retribution by imposing onerous burdens only on one minority, but that in fact the majority will live by the same rules as purports to impose on everybody else.

Justice Ginsburg: Mr. Smith before you continue down to the equal protection line.

Your first argument was the right of personal privacy in one's most intimate sexual relations, you were asked and you didn't get a chance to answer because you went back on your equal protection track, you are asking the Court to overrule bowers against Hardwick.

I thought that was very--

Mr. Smith: Yes, Your Honor.

We're asking you to overrule it and we think that the right of... of the fundamental right of unmarried people to make these choices about private adult consensual intimacy applies to different sex couples as well as same sex couples and that Bowers was wrong for essentially three reasons, first it posed the question too narrowly by focusing just on homosexual sodomy, which is just one of the moral choices that couples ought to have... that people ought to have available to them.

And second in its analysis of history, which I think I explained already and third, and perhaps most importantly, in the assumptions that the Court made in 1986 about the realities of gay lives and gay relationships, the Court simply asserted in the Bowers case that there's no showing that has been demonstrated between the opportunity to engage in this conduct and family.

And certainly while it may not have been shown in that case or even apparent to the Court this 1986, I submit it has to be apparent to the Court now that there are gay families that family relationships are established, that there are hundreds of thousands of people registered in the Census in the 2000 census who have formed gay families, gay partnerships, many of them raising children and that for those people, the opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context, that you can't protect one without the other, that it doesn't make sense to draw a line there and that you should protect it for everyone.

That this is a fundamental matter of American values.

So those are the three reasons we ask you to overrule Bowers v. Hardwick as to the fundamental rights aspect of the case and that we think that that is an area where the Court should go... should go back and reconsider itself.

The Court has now left open for nearly 30 years the question of whether anybody outside has a right... has a privacy right to engage in consensual sexual intimacy in the privacy of their home.

And I submit to you, you know, while the Court has left that unanswered, the American people have moved on to the point where that right is taken for granted for everyone.

Most Americans would be shocked to find out that their decision to engage in sexual intimacy with another person in their own home might lead to a knock on the door as occurred here and a criminal prosecution.

And that... that reality is something that the Court needs into account and certainly in so doing, it shouldn't... in constructing its fundamental rights edifice draw distinctions between gay couples and other couples.

Justice Scalia: --You probably say the same about adultery, you think adultery laws are unconstitutional?

Mr. Smith: I think that the state has--

Justice Scalia: I mean think people probably feel the same way about that, you know.

It may not be a nice thing to do, but I certainly don't expect a knock on the door and go to jail for it.

Mr. Smith: --Your Honor, adultery is a very different case.

It involves the State interests in protecting the marital contract which people voluntarily take on.

And... and so in assessing.

Justice Scalia: Why is the marital contract important to the State?

Because it's the source of... of the next generation, right?

Mr. Smith: Sure, the State is--

Justice Scalia: And you think that there's not some of the same thinking behind the conscious choice of the State to favor heterosexual and marital sex over homosexual sex?

Mr. Smith: --Well, I can understand a law which says we're going to attempt to channel heterosexuals towards marriage by making them... making it illegal for them to have sex without marriage.

I can't understand that law under... under that kind of rational which only regulates same sex couples and says you can't have sex but everyone else has a right to do that.

As for adultery and all of the other parade of horribles which people have raised in their briefs, it seems to me you've got to look at the individual interests and the State interests and their dramatically different in all of those cases incest, prostitution, all of these... bestiality, all of these things either there's very little individual interests or there's very heightened State interest or both, in all of those cases, so the idea that by recognizing the right of all adult couples to make choices like this in their own home the Court is going to open up a whole can of worms, I submit, is correct.

If I could reserve the balance of my time, Your Honor.

Argument of Charles A. Rosenthal

Chief Justice Rehnquist: Very well, Mr. Smith.

Mr. Rosenthal, we'll hear from you.

Mr. Rosenthal: Give me just a moment.

Mr. Chief Justice, and may it please the Court.

The State humbly submits that enforcement of Texas Penal Code Statute 21.06 does not violate the 14th Amendment of the Constitution because this Court has never recognized a fundamental right to engage in extramarital sexual conduct and because there is a rational basis for the statute sufficient to withstand equal protection scrutiny.

I'd like to begin with a brief discussion of substantive due process.

From a practitioner's standpoint, it appears that the jurisprudence of this Court appears to resolve the means by which the Court entertains a claim of novel protected liberty interests.

Since the Constitution does not expressly address the issue of privacy or of sexual conduct, we look to the Court's precedents and to the history of our people.

If a historical, traditional analysis applies, it then serves as objective guideposts to guide this Court, as long as those ideals and laws do not infringe on fundamental rights.

The Court has maintained that designation of a liberty interest is done... not done with impunity.

But only those interests that appear to be carefully identified asserted rights should be drawn and should be considered as liberty interests.

The record in this case does not particularly show which rights the petitioners are asking to uphold.

Justice Scalia: I... I don't understand what you mean by that.

Aren't we clear what right they're seeking to uphold?

Mr. Rosenthal: No, sir, they're... they're asking for the right of homosexuals to engage in homosexual conduct.

Justice Scalia: Right.

Mr. Rosenthal: But there's nothing in the record to indicate that these people are homosexuals.

They're not homosexuals by definition if they commit one act.

It's our position that a heterosexual person can also violate this code if they commit an act of deviate sexual intercourse with another of the same sex.

Justice Scalia: Why aren't... why aren't they seeking to vindicate the right of either homosexuals or heterosexuals to commit homosexual act?

What difference does that make?

Mr. Rosenthal: The difference it makes is as the... as the record is set out, it does not really define the issues such that the Court can actually give the petitioners a... a specific form of relief.

Justice Ginsburg: But the... the... the statute, Texas has already decided that for us.

It has called this homosexual conduct, so whether it's a heterosexual person or a homosexual person, the crime is engaging in homosexual conduct.

Mr. Rosenthal: That's correct.

Justice Souter: You don't even have to get to the... as I understand it, you don't even have to get to the characterization of homosexual.

The statute clearly defines certain acts committed by or together with individuals of the same sex and that's your class, isn't it?

Mr. Rosenthal: Yes, it is.

Justice Souter: What more do we need?

Mr. Rosenthal: We're... the class actually is people who violate the act, not classes of individuals based upon sexual orientation.

Justice Kennedy: Well, I... I can see that your point may have some relevance on the equal protection side of the equation, some relevance, I don't think it may be controlling.

It... it doesn't seem to meet the arguments that's made under the substantive liberty part of the argument with reference to Bowers.

Mr. Rosenthal: I beg your pardon?

Justice Kennedy: It doesn't meet the petitioners' argument with respect to Bowers versus Hardwick, which they say should be overruled.

Mr. Rosenthal: Well, of course we... we believe that Bowers versus Hardwick is... is good law.

It's substantial law and that this Court should not overrule Bowers--

Justice Kennedy: But that question is certainly clearly before us.

I mean this is your statute.

You convicted the people for these acts and you have to be... you have it.

Mr. Rosenthal: --Yes, sir.

And it's our position that Bowers versus Hardwick is still good law, that there's nothing that's changed about the fundamental liberties or the... or the history or traditions of our country that should make the analysis in Bowers incorrect any longer.

The petitioner also claims that the mores of our nation have changed to the point where physical homosexual intimacy is now part of the fabric of American values.

And it's our position this cannot be correct.

Even if you infer that various States acting through their legislative process have repealed sodomy laws, there is no protected right to engage in extrasexual... extramarital sexual relations, again, that can trace their roots to history or the traditions of this nation.

Justice Breyer: Their basic argument, I think--

Justice Scalia: --I... I'm sorry.

I didn't get that argument.

I thought you were going to say... you were responding to the argument that the morals haven't changed, or that the morals have changed so that homosexuality is now approved.

And you respond to that by saying that there's no tradition?

I mean, that's... that's a totally different argument from tradition.

I mean, the... the argument is tradition doesn't matter.

Mr. Rosenthal: Well, history... tradition does not matter in terms of whether or not it... it can be a protected liberty interest.

Justice Scalia: Why... why do you think that the public perception of... of homosexual acts has... has not changed?

Do you think it hasn't?

Mr. Rosenthal: The public perception of it?

Justice Scalia: Yes, yes.

Do you think there's public approval of it?

Mr. Rosenthal: Of homosexuals, but not of homosexuality activity.

Justice Scalia: What do you base that on?

Mr. Rosenthal: I beg your pardon?

Justice Scalia: What do you base that on?

Mr. Rosenthal: Well, even--

Justice Scalia: I mean I think there ought to be some evidence which... which you can bring forward?

Mr. Rosenthal: --Sure.

Justice Scalia: Like perhaps the failure of the Federal Congress to add the sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate, that addition has been sought several times and it's been rejected by the Federal Congress, hasn't it?

Mr. Rosenthal: Yes, sir, and... and in addition, what I was trying to say by the fact that various States have changed their position on sodomy, they've done it through the legislative process.

And that's where we believe this belongs, is in the State House of Texas, not this Court.

Justice Scalia: Yes, but I thought you were responding to the argument that the public perception hasn't changed.

That there still is... is a public disapproval of homosexual acts.

And you can't establish that by saying that the States have repealed their homosexual laws.

Mr. Rosenthal: Well, I think it goes back to whether the... where... whether people in Texas and people in the other States that had this law on their books actually accepted through their representative government.

I think it comes down to the... the actual people who... who determine the consensus and mores of the State or the... or the elected legislators.

Justice Scalia: Might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right?

Mr. Rosenthal: Well, certainly.

And just because someone has decriminalized sodomy doesn't mean that they embraced that practice as something that ought to be taught in the schools as was mentioned before.

Justice Breyer: But the argument of... of Bowers, to overrule Bowers is not directly related to sodomy.

It's related, but not directly.

It's that people in their own bedrooms, which have their right to do basically what they want, it's not hurting other people.

And they... the other side... says Bowers understated the importance of that.

It got the history wrong.

It didn't understand the relationship of the sodomy to families and in addition, Bowers has proved to be harmful to thousands and thousands and thousands of people, if not because they're going to be prosecuted, because they fear it... they might be, which makes it a possible instrument of repression in the hands of the prosecutors.

Now, that's the kind of argument that they're making.

Harmful in consequence, wrong in theory, understating the constitutional value.

Mr. Rosenthal: All right--

Justice Breyer: All right, now how do you respond to that?

Mr. Rosenthal: --Okay.

First of all, let me... let me correct something that... that's very minor at this point, but the allegation was made in petitioners' argument that people can... convicted of homosexual conduct are banned from jobs and housing and all... and all that kind of thing.

In Texas, homosexual conduct is a class C misdemeanor.

That is, it is the lowest misdemeanor... or the lowest prohibition that Texas has.

Justice Breyer: That I didn't bring in in my question.

Mr. Rosenthal: Yes, sir.

Justice Breyer: My question was, getting those sort of three or four basic points, I would like to hear your... your straight answer to those points--

Unknown Speaker: [Laughter]

Justice Breyer: --because on their face, they're... I mean, I'm not... not a criticism, I mean, directly responding, directly responding to the... to the... to the question.

Mr. Rosenthal: Well, it's our position that the line should be drawn at the marital bedroom, through which we can... through the law enforcement or anyone else cannot pass unless something illegal happens inside that bedroom.

Justice Breyer: Well, if this is drawing the line at the bedroom door, this case is inside the bedroom, not outside.

That's the statute makes criminal, to my understanding, of it what takes place within the bedroom through consent.

Am I right about that?

Mr. Rosenthal: You're right about that, but--

Justice Breyer: And why isn't that something that the State has no business getting involved in--

Mr. Rosenthal: --First of all, let me say--

Justice Breyer: --as long as it doesn't hurt anybody?

Mr. Rosenthal: --First of all, let me say that consent may alleged in this case, but consent is not proven in the record in this case.

There's... there is nothing in the record that shows that people are capable of giving consent or that consent was, in fact, given, but even given that, I... I think that the... that this Court having determined that there are certain kinds of conduct that it will accept and certain kinds of conduct it will not accept may draw the line at the bedroom door of the heterosexual married couple because of the interest that this Court has that this Nation has and certainly that the State of Texas has for the preservation of marriage, families and the procreation of children.

Justice Ginsburg: Does Texas permit same-sex adoptions... two women or two men to adopt a child or to be foster parents?

Mr. Rosenthal: I don't know the answer to that, Justice.

Justice Ginsburg: Well, in portraying what Texas sees as a family and distinguishing both married and unmarried heterosexual people from homosexual people, those things wouldn't go together if the State said at the same time said same sex couples are qualified to raise a family.

You can adopt children, you can be foster parents.

You don't know what... what the Texas law is on that?

Mr. Rosenthal: I do not know what that Texas law... what the Texas law says in that regard.

Justice Ginsburg: I think it would be relevant to your argument that they're making... that Texas is making the distinction between kinds of people who have family relationships and can be proper guardians of children and those who can't.

Mr. Rosenthal: Well, again, Your Honor, we're not saying that they can't be proper guardians and we can't say that they can't raise children.

That... that's not the issue.

The issue--

Justice Scalia: You're fairly certain that they can't procreate children, aren't you?

Unknown Speaker: [Laughter]

Mr. Rosenthal: --We are sure that they... that they can't do that.

But we're also not... not penalizing their... their status.

We're penalizing only the particular activity that those unmarried couples may have with respect to whether they have sexual intimacies.

Justice Stevens: Does Texas prohibit sexual intercourse between unmarried heterosexuals?

Mr. Rosenthal: Well, it used to.

It does not do that now, unless the sexual intimacy is in public or where someone might view--

Justice Stevens: No, say in a... a private situation like this, it would not... it would not be prohibited?

Mr. Rosenthal: --It does not criminalize it, it does not condone it.

Justice Scalia: What about adultery?

Mr. Rosenthal: I beg your pardon?

Justice Scalia: What about adultery?

Mr. Rosenthal: Again, adultery is not penalized in Texas, but it is certainly not condoned in Texas.

[Laughter]

Justice Breyer: All right, so you said... you said procreation, marriage and children, those are your three justifications.

Now from what you recently said, I don't see what it has to do with marriage, since, in fact, marriage has nothing to do with the conduct that either this or other statutes do or don't forbid.

I don't see what it has to do with children, since, in fact, the gay people can certainly adopt children and they do.

And I don't see what it has to do with procreation, because that's the same as the children.

All right.

So... so what is the justification for this statute, other than, you know, it's not what they say on the other side, is this is simply, I do not like thee, Doctor Fell, the reason why I cannot tell.

Unknown Speaker: [Laughter]

Justice Breyer: Now, what is aside... aside from that?

Mr. Rosenthal: I think what... what I'm saying is... and I had not gotten into the equal protection aspect of the... of the argument yet, but under the equal protection argument, Texas has the right to set moral standards and can set bright line moral standards for its people.

And in the setting of those moral standards, I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist.

Justice Breyer: Could they say, for example, it is against the law at the dinner table to tell really serious lies to your family?

Mr. Rosenthal: Yes, they can make that a law, but there would be no rational basis for the law.

Justice Breyer: Oh, really.

It's very immoral.

I mean, I know there's certainly... it's certainly immoral to tell very serious harmful lies to your own family under certain circumstances and around the dinner table, some of the worst things can happen.

Unknown Speaker: [Laughter]

Justice Breyer: But the... the... so Texas could go right in there and any kind of morality that they think is just immoral or bad, cheating, perhaps.

What about rudeness, serious rudeness, et cetera?

Mr. Rosenthal: Well, again, if... if Texas did pass the law, it would have to... have to show through some rational basis test that it's rationally related to some State interest.

Justice Scalia: Mr. Rosenthal, don't you think that what laws a State may constitutionally pass has a lot to do with what laws it has always been thought that a State can constitutionally pass, so that if you have a 200-year tradition of a certain type of law... and I don't know of a 200-year tradition of laws against lying at the dinner table... the presumption is that the State can within the bounds of... of the Constitution to pass that law in... as declaring what it has proscribed as contra bonos mores, a term that's been in the common law from the beginning as against good morals, bigamy, adultery, all sorts of things like that, and isn't that determined pretty much on the basis of what kind of laws the State has traditionally been allowed to pass?

Mr. Rosenthal: Certainly.

And it goes... it goes to things as diverse as--

Justice Stevens: I don't suppose you're going to argue that Loving against Virginia was incorrectly decided, are you?

Mr. Rosenthal: --Oh, certainly not.

Justice Stevens: And that was certainly a long tradition that supported that--

Mr. Rosenthal: But it also violated a fundamental right.

Justice Stevens: --And that's the issue here.

Unknown Speaker: [Laughter]

Mr. Rosenthal: Yes, sir.

And the fundamental right that was asserted there is... is a long-established fundamental right that we don't... we don't treat races differently because we think that one's inferior or we stereotype someone--

Justice Scalia: There was a constitutional text there, wasn't there, with Loving versus Virginia.

I thought there was something about a Civil War and no discrimination on the basis of race.

Mr. Rosenthal: --Yes, and the same with... with the case that was cited from Florida.

Justice Souter: When... when did Texas select homosexual sodomy as... as a subject of specific criminal prohibition?

Mr. Rosenthal: Sodomy as a... as a--

Justice Souter: My question--

Mr. Rosenthal: --Yes, sir.

Justice Souter: --Go ahead, but my question is--

Mr. Rosenthal: Yes, sir.

Justice Souter: --is about sodomy among two adults of the same sex?

Mr. Rosenthal: Yes, sir.

And sodomy had... has a longstanding tradition of the history of Texas of sodomy being against the law, however--

Justice Souter: When... when was... was the first statute passed?

I think 200 years was mentioned.

Was there a law in the books in 1803?

Mr. Rosenthal: --No, I don't think Texas was a State back then.

[Laughter]

Justice Souter: It doesn't have to be... it doesn't have to--

--Territorial--

Justice Scalia: --It's a trick question, Mr. Rosenthal.

Don't... don't fall into that trap.

Unknown Speaker: [Laughter]

Justice Souter: 1803 or the first date of the Texas legislature's meeting, did they pass it at the... at the first meeting of the legislature?

Mr. Rosenthal: Well, certainly in the... in the 1854 Penal Code, the... the kinds of activity that... that were classified now as sodomy were against the law.

However, I think to address your question--

Justice Souter: When did... when did they single out homosexual sodomy?

Mr. Rosenthal: --In 1973, in the passage of the 1974 Penal Code.

Justice Souter: So the issue here doesn't have much of a longstanding tradition specific to this statute, does it?

Mr. Rosenthal: Well, not specific to... not specific to that statute, but it has a longstanding tradition in Texas as being something that should be proscribed and something that is regarded as immoral and unwholesome.

Justice Scalia: Well, homosexual sodomy was unlawful in Texas from when?

There was not a statute addressed just to that.

It was addressed to sodomy in general, but homosexual... but homosexual sodomy included, and that law goes back how long?

To 1803?

Mr. Rosenthal: To the... to the time that Texas was a republic, before it--

Justice Breyer: But what about the statute which this Court I think had to grapple with, people felt during World War I that it was immoral to teach German in the public schools.

So then would you say that the State has every right to do that, parents want their children to learn German, but the schools forbid it?

See, the hard question here is can the State, in fact, pass anything that it wants at all, because they believe it's immoral.

If you were going to draw the line somewhere, I guess you might begin to draw it when the people is involved inside his own bedroom and not hurting anybody else.

Now that... that now... so you say it's morality.

I... I agree many people do believe that that's a question of morality.

Many do not, but nonetheless, what can you add to what you're saying, other than simply asserting its morality?

Because I don't think you think that the State could pass anything in the name of morality?

Mr. Rosenthal: --Certainly not.

But it would have... any law that would pass would have to have some rational basis to the State interest.

Justice Breyer: You've not given a rational basis except to repeat the word morality.

Justice Scalia: Is the rational basis is that the State thinks it immoral just as the State thinks adultery immoral or bigamy immoral.

Justice Breyer: Or teaching German.

Justice Scalia: Well, that--

Unknown Speaker: [Laughter]

Chief Justice Rehnquist: Maybe we should go through counsel, yes.

Justice Souter: Isn't the... Mr. Rosenthal, isn't the thrust of Justice Breyer's question that when... when the State criminalizes behavior as immoral, customarily what it points to is not simply an isolated moral judgment or the moral judgment alone, but it points to a moral judgment which is backed up by some demonstration of harm to other people.

We... we've heard questions for example about harm to a... a marital institution.

It makes sense to say whether you think the law is enforceable or not.

It makes sense to say that adultery threatens the... the durability of a particular instance of marriage.

On the instance of marriage.

What kind of harm to others can you point to in this case to take it out of the category of simple moral disapproval, per se?

Mr. Rosenthal: Well, part of the... part of the rationale for the law is to discourage similar conduct, that is, to discourage people who may be in jail together or want to experiment from doing the same kind of thing and I think... and I think that the State can do that.

People can harm themselves and still be... and still have it be against the law.

But they can take drugs and do that.

Justice Souter: Well, do you point to a kind of harm here to an individual or to the individual's partner, which is comparable to the harm that results from the... the harm to the deterioration of the body and the mind from drug-taking?

I mean, I don't see the parallel between the two situations.

Mr. Rosenthal: Well, not... not only do we say that morality is a basis for this, but of course the antecedents have raised that there may also be health considerations.

I don't know whether there are or not.

Justice Souter: That is not the State's claim in any case?

Mr. Rosenthal: That's not the State's claim, but I can't say that it's not true.

Obviously this... this has--

Justice Souter: Did you read... I don't know... I can't remember now who filed it, but there was one medical brief filed on that subject and the argument there was that, in fact, these laws are... are directly antithetical to health claim.

Do you... do you have any comment to make on that brief?

Mr. Rosenthal: --Yes, sir.

There was a law filed on behalf of the respondents that took exactly the opposite position.

Justice Souter: So the issue was open, so far as... as we're concerned that that would be your position, I take it?

Mr. Rosenthal: Yes, sir, for each expert there's an equal and opposite expert.

Justice Ginsburg: But you're not saying the State of Texas is doing this for... to protect the actors who are involved in this?

One can say the State is taking action to see that people don't harm others or themselves.

You're not suggesting that that's the reason for... for this particular law?

Mr. Rosenthal: Well, I think Texas has the right to prohibit certain conduct.

Justice Souter: But if that's the reason for it, why doesn't Texas prohibit the conduct in a heterosexual relationship?

I mean, it doesn't seem to be any harm because if there were a harm, beyond moral disapproval, the law would not be restricted to homosexuals.

Mr. Rosenthal: Well, because heterosexual conduct is... the same kinds of conduct... and by the way it's not distinguished, it's still called deviate sexual intercourse with heterosexuals.

Justice Souter: But it's not prohibited?

Mr. Rosenthal: But it's not prohibited.

Justice Souter: Yeah.

Mr. Rosenthal: But it also can lead to marriage and to procreation.

And that's... and that's a legitimate State interest.

Justice Ginsburg: But... but procreation... many people with the blessings of Texas can have sexual relations who are unable to procreate, so I don't see how... whatever the line might have meant in times gone, it certainly isn't true that sexual relations are for the purpose of procreation and anything that is not for that purpose is beyond the pale.

You can't make that distinction.

Mr. Rosenthal: No, but I think as a matter of public policy, the State can make... have... can have preferences... and again it doesn't say that simply because heterosexual people can... can have deviate sexual intercourse, the State approves it.

There are just simply other sanctions that the... that the State may imply.

I did want to briefly distinguish this case from your decision in Romer v. Evans.

And obviously the distinction there was... was that the Colorado amendment sought to classify people based on their orientation and not their conduct.

And by so doing, they excluded a certain class of people from the political debate.

Now, on the contrary, Texas welcomes all into the political debate and... in the last Texas legislature, fortunately our legislature meets only every other year, but in the last Texas legislature, there was a hate crime statute passed which made it a more heinous crime to make someone a victim of crime based upon their sexual orientation and it included all sexual orientations.

It included homosexuals, bisexuals and heterosexuals, all, so I don't think we can say across the board that there's some sort of Texas policy that we're trying to overall discriminate against... against homosexuals as a group.

Justice Ginsburg: Somebody wants to participate in the political process, run for political office who is homosexual and the charge is made on the other side don't... don't vote for this person, this person is a law breaker, there is a closer connection to Romer in that regard, isn't there?

Mr. Rosenthal: Well, that would be true, if it weren't that the historical fact that that's not in fact true.

That there have been people who have campaigned in Texas and have admitted their homosexuality and have been elected to office.

Justice Ginsburg: But the charge... they could be charged as law-breakers.

Mr. Rosenthal: No, ma'am, they can't be charged as law-breakers for having that orientation.

They can only be charged as law-breakers if they commit that particular act.

And then, again, the State does not allow any disabilities to come from class C misdemeanor acts.

I'm sure it's obvious to this Court that the issues of homosexual rights are highly emotional for the petitioner in these quarters but equally anxious in this Court's... for this Court's decision are those who are, number one, concerned with the rights of States to determine their own destiny, and, two, and possibly more important, those persons who are concerned that the invalidation of this little Texas statute would make... would make marriage law subject to constitutional challenge.

Then again, how far behind that can there be other acts of sexual gratification brought for constitutional challenge also.

There's already movements to lower the age limit of consent for children engaged in sexual practices.

And there are secondary effects, particularly in Texas law, where we are a common law state and the common law is based upon community property shared by both spouses.

The State of Texas is asking this Court to be mindful of the far-reaching aspects of your decision in this case, so as not to disenfranchise 23 million Texans who ought to have the right to participate in questions having to do with moral issues.

We ask you to affirm the Texas Court of Appeals.

Rebuttal of Paul M. Smith

Chief Justice Rehnquist: Thank you, Mr. Rosenthal.

Mr. Smith, you have 4 minutes remaining.

Mr. Smith: Thank you, Mr. Chief Justice.

I just have a couple of points to make.

I thought I might address this question of what it was that we proved in the record below and whether or not we have, as a result, adequately teed up the issues before the Court without having put into evidence directly that this was a noncoercive act or a noncommercial act or a nonpublic act or things of that kind.

Our position is that this is a criminal statute that has only two elements, it has a list of particular kinds of sexual intimacy that you're not allowed to engage in and it they have to prove as well that the two people involved were of the same sex.

There was a complaint that was filed that listed those two elements.

My clients pleaded no contest to those two elements but said that there is an insufficient basis for imposing criminal liability on them, because, first of all, they invade fundamental rights and second of all, because the law is discriminatory, while it's supposedly got a moral basis, it's a discriminatory morality, a morality imposed only on one category of couples in a State which does not penalize in any way adultery, fornication or sodomy for people of... of couples that are different sex.

Those are the arguments that were made and... so our position is that that the statute is unconstitutional both facially and as applied here, because the State purports to impose liability based on those two elements alone and that they are constitutionally insufficient bases both for fundamental rights reasons and because it's a discriminatory state.

The other point I thought I might just address for the moment is the public health rationale which didn't come up before.

Essentially, what the facts are... and I think this comes out to a large extent, it's undisputed in the amicus briefing... the issue is not briefed in here because the Texas brief doesn't even attempt to make this argument, but it is... the facts are that if this was the line between safe and unsafe forms of sexual intimacy it's as if the law cuts right across it.

Regulating some of the most safe forms of sexual activity possible, including, for example, lots of safe sex... same-sex activity involving women and leaving completely unregulated all sorts of forms of unsafe sexual activity involving different sex couples.

So if there was ever a case of a law where the fit is egregiously improper and insufficient to justify the law under the rational basis test, this would be such a case.

Unless the Court has further questions, thank you very much.

Chief Justice Rehnquist: Thank you Mr. Smith.

The case is submitted.