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.
Prosecutor Charles Rosenthal of the Harris County District Attorney?s Office, Houston, Texas, talks to reporters outside the Supreme Court, during the 2003 hearings. AP IMAGES
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.
Members of the National Prayer Center pray outside the Supreme Court in Washington Thursday, June 26, 2003 after the court struck down a ban on gay sex.
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).
Article source: http://www.theatlantic.com/national/archive/2012/03/how-gay-sex-was-legalized/254308/
Tags: gay, glbt, lesbian, lgbt
Source: http://gayfriendlybiz.com/new/uncategorized/how-gay-sex-was-legalized
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