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WASHINGTON — The Supreme Court appeared poised Wednesday to strike down Texas’ anti-sodomy statute, setting the stage for a landmark ruling on the status of gays in American society. In sharp contrast to the tone of the questioning in 1986, the last time the high court considered the constitutionality of sodomy laws, most justices spoke of homosexuality respectfully. “The attitude in the room, the acceptance of homosexuality as a part of the human condition, seemed real,” said Paul Smith, the Jenner & Block D.C. partner who argued the case on behalf of John Lawrence and Tyron Garner, the Houston men arrested in 1998 under the Texas “homosexual conduct” law, which bans oral or anal sex between people of the same sex. Only three other states have similar laws, while 13 others outlaw sodomy for all couples. “Why isn’t that something the state has no business in?” asked Justice Stephen Breyer at one point. He said evidence had been offered in the case that anti-sodomy laws had been harmful to “thousands and thousands and thousands of people.” Justice David Souter said laws like the one at issue in Lawrence v. Texas must be justified by more than “moral judgment.” He said, “There has to be harm to others. What harm is there to others” in consensual sodomy? The court’s 1986 ruling, Bowers v. Hardwick, upheld Georgia’s since-overturned anti-sodomy law. Gay rights groups assert the ruling has stood as a barrier to equal treatment in employment, housing and adoption. Smith argued that Bowers should be overturned in part because “it has to be apparent” that the court’s assumptions about homosexuality and morality reflected in 1986 are not true. “There are gay families,” said Smith. No justice openly agreed that Bowers should be overruled. But only Chief Justice William Rehnquist and Justice Antonin Scalia seemed openly hostile to Smith’s claim about Bowers and to his assertion that the Texas law violates both substantive due process and equal protection guarantees of the Constitution. Smith said the law and others like it relegate homosexuals to “second-class citizenship.” The fact that all but a handful of states have repealed their sodomy laws in the last 40 years should be taken into account in the constitutional assessment, Smith said. “We now have three-fourths of the states not regulating this conduct,” he said. “There is a jagged piece missing from substantive due process.” But Rehnquist said the right Smith was championing needed to have deeper roots and longer acceptance than the recent trend suggests. Scalia sarcastically posited a hypothetical in which laws in many states against “flagpole-sitting” are repealed. “Does that make flagpole-sitting a constitutional right?” Scalia also challenged Smith on the implications of overturning the Texas law. Texas and other groups supporting the law have asserted that laws against bigamy and in favor of heterosexual marriage might also be subject to challenge. Smith said states were still entitled to “protect the institution of marriage,” while the anti-sodomy laws unconstitutionally single out a group of people for treatment as criminals. But Rehnquist said, “Almost all laws are based on disapproval of some people or conduct.” He wondered aloud whether states would be able to forbid homosexuals from teaching kindergarten. The states “would have to have some justification,” Smith replied. The arguments were a mismatch to a degree rarely seen in the high court. Smith deftly and confidently handled the court’s questions, while his adversary, Harris County District Attorney Charles Rosenthal Jr., appeared on the defensive almost from the moment he stood up. Rosenthal was hard pressed to offer a justification for the Texas law, except to argue that it did not necessarily discriminate against homosexuals. Heterosexuals could be prosecuted under the law, he said, if they engaged in same-sex sodomy. “A heterosexual person can also violate this statute.” He also said Texas “has the right to set moral standards . . . for its people,” especially since the court has never recognized a fundamental right of people to engage in extramarital sexual conduct. “This belongs in the statehouse of Texas, not this court.” When Justice Ruth Bader Ginsburg asked Rosenthal what laws Texas had passed regarding same-sex parenting and custody, Rosenthal said he did not know. Rosenthal also said “there may be health considerations” that justify the anti-sodomy law, but added, “I don’t know if there are.” Breyer appeared frustrated with Rosenthal, repeatedly challenging his assertions. Breyer’s persistence also produced the one light-hearted, double-entendre moment during the argument. “I want a straight answer to these points,” Breyer said, angrily pointing his finger at Rosenthal. As spectators laughed, Justice Clarence Thomas, seated next to him, jabbed his elbow in Breyer’s side. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times.

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