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Texas Sodomy Law Defender Proves Inept;
Lambda Legal is Superb

Compiled by GayToday

Lambda Legal's Ruth Harlow and John Lawrence Washington, D.C.--Charles A. Rosenthal, Jr., a District Attorney for Harris County, Texas argued for the first time in front of the U.S. Supreme Court Wednesday, determined to defend a Texas law which criminalizes oral and anal sex by consenting gay couples and is used to justify discrimination against lesbians and gay men.

Mr. Rosenthal, by all accounts, did an ineffectual job. Even the rabidly conservative Roman Catholic Supreme Court Justice, Antonin Scalia, while questioning the Texas lawyer at the bench, seemed frustrated by his general fogginess, marked by a somewhat awesome ineptitude. Exchanges between Justice Scalia and Mr. Rosenthal included the following dialogue:

Charles A. Rosenthal, Jr.: 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 Even if you infer that various States acting through their legislative process have repealed sodomy laws, there is no protected right to engage in extrasexual -extramarital sexual relations, again, that can trace their roots to history or the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 Scalia: 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 a totally different argument from tradition. I mean, the argument is tradition doesn't matter.

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

Justice Scalia: Why do you think that the public perception of homosexual acts 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, there ought to be some evidence you can bring forward.

Mr. Rosenthal: Sure.

Linda Greenhouse, noted in the New York Times that with the arrival of Mr. Paul M. Smith, Lambda Legal's cooperating attorney who argued for the abolishment of the anti-gay Texas law, Mr. Rosenthal's offerings from Texas seemed to go pale. She said: "The argument proved to be a mismatch of advocates to a degree rarely seen at the court."

Ms. Greenhouse also noted that Mr. Smith "was unperturbed even while sparring with Justice Antonin Scalia, a predictable adversary whose vote he had no chance of winning and whose questions he was able at times to turn to his clients' advantage."

A diverse array of some of the nation's most respected organizations - including conservative groups, civil rights organizations, religious groups, historians and health professionals - filed friend-of-the-court briefs on Lambda Legal's behalf, also asking the U.S. Supreme Court to declare the Texas law unconstitutional.

Ruth Harlow, Legal Director at Lambda Legal, said:

"Some of the most diverse and respected voices in this country have lined up to tell the Supreme Court that these laws are contrary to American values…Conservative groups have come forward to say that the government has no business in people's bedrooms. Mainstream civil rights organizations have spoken out about the inequalities and blatant discrimination these laws create. And our nation's leading health advocates have said unequivocally that these laws don't serve any public interest."

She continued:

"This is the most important gay rights case in a generation…We're hopeful that the Supreme Court sees that laws like Texas's violate fundamental American freedoms. These laws invade the most private area of adult life and set up two different rules for the same behavior - one for gay people and one for straight people."

Lambda Legal brought the case to the Supreme Court on behalf of John Lawrence and Tyron Garner, who were arrested in Lawrence's Houston home and jailed overnight after officers responding to a false report from an acquaintance found the men engaged in private, consensual sex. Once convicted, they were forced to pay fines and are now considered sex offenders in several states.

In defending the sodomy law, Charles A. Rosenthal, Jr. attempted to argue argued that its legislature is responsible for passing or repealing laws and that the Supreme Court should not step in. In an incoherent mismatch of words, he said:

"Well, I think it goes back to whether the -where -whether people in Texas and people in other states that had this law on their books actually accepted through their representative government, I think it comes down to the actual people who determine the consensus and mores of the state or the elected legislators."

But as Ruth Harlow had explained earlier:

"While the legislature does have a great deal of discretion over the state's laws, there are some important limitations - and they're spelled out in our Constitution," Harlow said. "Our system gives the federal courts the responsibility to determine whether laws are constitutional."

The Supreme Court agreed to hear two constitutional issues in Lambda Legal's case: whether the Texas law violates the Constitution's right to privacy, and also whether it violates the Constitution's guarantee that all Americans will be treated equally under the law. In 1986, the Supreme Court ruled that Georgia's law banning consensual sodomy did not violate privacy rights. In bringing the Texas case, Lambda Legal asked the justices to reconsider that ruling, which Harlow said has done "tremendous harm" to gay Americans for years.

Since the U.S. Supreme Court decision upholding Georgia's sodomy law in 1986, Lambda Legal has helped strike down similar laws in numerous state courts, including Montana, Tennessee and Georgia itself. Last summer, Lambda Legal successfully struck down Arkansas' law banning sex between people of the same sex when the state Supreme Court ruled in favor of seven Lambda Legal clients who said the law jeopardized their employment, their legal relationships with their children and their standing as equal citizens.

In addition to Texas, three states - Kansas, Missouri and Oklahoma - still have consensual sodomy laws that apply only to gay people. Nine states - Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah - still have consensual sodomy laws that apply to straight and gay adults, but are invoked only against lesbians and gay men in everyday life. These laws typically ban oral and anal sex with penalties that range from fines to 10 years in prison.

A decision in the case is expected in June.

Lambda Legal attorneys Ruth Harlow, Patricia Logue and Susan Sommer, along with Brian Chase in Lambda Legal's Dallas office, are litigating the case. William M. Hohengarten, Paul M. Smith, Daniel Mach and Sharon McGowan from Jenner & Block, LLC in Washington, D.C., and Mitchell Katine from Williams, Birnberg & Andersen, L.L.P. in Houston, are Lambda Legal's cooperating attorneys assisting on the case.
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