How Gay Sex Was Legalized
In 1998, two sheriff's deputies walked into a Texas bedroom and found two men breaking a law against sodomy. The legal battle that followed made same-sex relationships legal in every state -- but not before causing a lot of drama at the Supreme Court.
The day for oral argument in Lawrence v. Texas, March 26, 2003, was a bright spring morning, with temperatures nearing 70 degrees. The Iraq war had begun one week earlier, consuming most of the attention of the media and the public at large. At the Supreme Court, however, all eyes were on a battle of a different sort, a cultural and legal one with historic implications.
The Court has seating for 250 public visitors, but as in every high-profile case many of the seats were reserved ahead of time for guests of the justices, members of the Supreme Court bar, and the press. Probably no more than 100 seats were available on a first-come, first-served basis to the general public, and people had been in the queue for those all night. They spent the night in sleeping bags or sitting on blankets or folding chairs; no one was allowed to leave for more than one hour at a time. The mood was festive, upbeat, anxious, and excited. Someone in line with a guitar serenaded the group with folk songs and civil-rights anthems, as if the 1960s had briefly flowered once again in the 21st century.
Sometime that morning about a dozen antigay protesters led by the 73-year-old Reverend Fred Phelps, the leader of the Westboro Baptist Church in Topeka, Kansas, arrived, accompanied by some young children. The group held up signs referring to the Bible and its condemnation of Sodom, and bearing slogans like "God Hates Fags" and "AIDS Is God's Revenge." Other signs attacked America itself for its excessive tolerance of homosexuality. A young girl held aloft the message "Thank God for Sept. 11." Another sign said, "God Destroyed the Shuttle," referring to the recent crash of the Columbia space shuttle. The antigay protesters distributed leaflets warning that the United States would lose the war in Iraq, among other calamities, if the Supreme Court ruled in favor of the so-called sodomites.For the hundreds of gay-rights advocates in line, there was nothing new about any of this. They had long ago habituated themselves to such protesters at gay pride parades and other events. Mostly amused by the Phelps clan, some had their pictures taken beside them, as if posing with circus acts. Their optimism was not going to be spoiled by this preacher and his followers.
By the time the marshal of the Court began letting members of the public through the front door of the Supreme Court building, around 9:30, the list of people waiting to get in had grown to about 400. The line stretched down the entire block in front of the Court. Those too far back in line to get a seat were allowed, following standard Supreme Court practice, to stand at the rear of the courtroom for three minutes to watch the argument. Then they were shuttled out so that the next group could watch.
Paul Smith, the unflappable Washington appellate lawyer, and Chuck Rosenthal, the drawling Texas trial attorney, met for the first time in the lawyers' lounge, a small antechamber for oral advocates off of the main courtroom, around nine o'clock that morning. They chitchatted politely with the other lawyers in the room. As is customary, the Court's clerk, William Suter, delivered a primer on procedure. Following a Court tradition, the clerk asked if anyone needed a button sewn, and then gave the lawyers ceremonial quill pens to mark the occasion. After 15 minutes in the lawyers' lounge, all the attorneys filed out to take seats in the courtroom.
The courtroom itself is 82 feet by 91 feet, a grand but surprisingly small setting. At the front of the room the justices sit behind an elevated, curved bench, each in a high-backed wood chair upholstered in black leather. They peer down upon the lawyers and the spectators. The effect is to almost encircle the attorney--undoubtedly, an intimidating experience for the uninitiated. Counsel, up to four lawyers each for the petitioners and respondents, sit at tables positioned on either side of the lectern. Each side gets 30 minutes to make its presentation to the Court.
Lawrence, unrecognizable to most of the audience, was awestruck:
Have you ever had that magical moment that just said "We're here"? We're going to hear what they have to say. This is the court of the land. And they're listening to a case of some little two guys from Texas that supposedly broke a law that was stupid to be on the books in the first place. You get to hear the justices. You get to see the true court system of the United States at work.
The Court had unalterably changed since it decided Bowers in the mid-1980s, not simply in its membership (only Rehnquist, John Paul Stevens, and Sandra Day O'Connor remained from the 1985-86 term) but in its knowledge of gay people. A deep transformation in American culture and politics had brought about a profound shift in the Court's perception of gay men and lesbians. As Smith waited to deliver his argument, someone in the audience whispered in his ear that Justice O'Connor had recently sent a baby present to one of her former clerks and that woman's same-sex partner. It was an encouraging sign, and a mark of how far things had come since 1986, when O'Connor had been among the five justices to uphold the Georgia sodomy law. The justices could pick out many familiar faces: friends, law professors, eminent lawyers, and former clerks, many of them openly gay. Lawrence himself was certain that Justice Ginsburg smiled at him. It was no longer possible to say that the intimate lives of gay men and lesbians had nothing to do with families and relationships, as the Court had facilely asserted in Bowers v. Hardwick. However, that fact alone did not guarantee a win.
The Lawrence argument commenced at 11:09 a.m. Paul Smith stepped up to the podium, arranged his notes for a moment, and looked down at his prepared remarks. "Mr. Smith?" Rehnquist said, signaling him that he could begin. The veteran Supreme Court advocate looked directly at the Justices and began to speak slowly and deliberately, picking up speed as the argument proceeded:
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 the right to make a free choice to engage in the identical conduct.
Ninety seconds into Smith's presentation, the first interruption came. Rehnquist challenged the idea that there was any historical basis for a fundamental right to "the kind of conduct we're talking about here," which "has been banned for a long time." Smith was ready for that objection and corrected Rehnquist's understanding of the history, repeating the argument from the briefs that Bowers was wrong: "Sodomy was regulated going back to the Founding for everyone and indeed the laws in the nineteenth century didn't focus on same-sex couples." Justice Scalia, who had joined the Court just after it decided Bowers and was now the intellectual leader of the Court's conservative wing, jumped into the argument. He pointed out that whatever else the law had prohibited, it did not permit gay sex. That proved there could be no historical right to such conduct. "What more do you need than that?"
But Smith pointed out that if the long history of sodomy laws was enough to justify the Texas law, it would also be enough to justify banning such conduct by married couples, who were also covered by the old sodomy laws. Yet, Smith noted, Texas had conceded that the state could not outlaw marital sodomy.
"They [Texas] conceded it. I haven't conceded it," retorted Scalia, generating an audible disquiet in the courtroom. Scalia was implicitly suggesting that even Griswold v. Connecticut, which protected a married couple's right to privacy, a case that was a canonical precedent in modern constitutional jurisprudence, might have been wrongly decided. Such a position would put him at the extreme margins of even conservative judicial thought, which had grudgingly accepted Griwsold.
"Your Honor," Smith replied, catching the radical implication in Scalia's question, "that may well be true" but "I was working with the assumption that there may be justices of the view that married couples do have such a right." Of course, Smith was speaking of seven out of the nine Justices, all except Scalia and Justice Clarence Thomas, who surely would not reject a right to privacy protecting married couples, notwithstanding antediluvian sodomy laws. It was a very polite way of letting Justice Scalia know that the petitioners were not counting on his vote.
All Images: AP
Adapted from Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas (W.W. Norton & Company, 2012).