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The Supreme Court appeared poised March 26 to strike down Texas’ anti-sodomy statute, setting the stage for a landmark ruling on the status of gays in American society. Also last week, a divided Court rescued IOLTA programs from a constitutional challenge and heard arguments in a case that could foreshadow its debate over the McCain-Feingold campaign finance reform law. During the March 26 arguments in Lawrence v. Texas, most justices spoke of homosexuality respectfully — in sharp contrast to the tone of the questioning in 1986, the last time the high court considered the constitutionality of sodomy laws. “The attitude in the room, the acceptance of homosexuality as a part of the human condition, seemed real,” says 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 nine 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. Justices Anthony Kennedy and Sandra Day O’Connor, likely to be key votes in the case, said little during the hourlong argument. Smith said the Texas 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 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?” he asked. Scalia also challenged Smith on the implications of overturning the Texas law. Texas and 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 criminal treatment. But Rehnquist said, “Almost all laws are based on disapproval of some people or conduct.” He wondered aloud whether states could forbid homosexuals from teaching kindergarten. The states “would have to have some justification,” Smith replied. Scalia suggested the justification could simply be disapproval of homosexuality. 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, according to several lawyers in the audience. IOLTA: NOTHING TAKEN The Supreme Court on March 26 rescued IOLTA programs from a vigorous constitutional attack, ruling 5-4 that states may pool clients’ escrow funds in bank accounts and give the interest to legal aid programs. The ruling was a major victory for legal aid organizations in all 50 states, which depend heavily on Interest on Lawyers’ Trust Accounts. Last year, IOLTA programs, usually administered by state courts, generated more than $200 million for such programs, making them second only to the Legal Services Corp. as a funding source. “We’re pleased that this critical funding source will remain intact,” said Texas Supreme Court Justice Harriet O’Neill in a statement. “IOLTA funding allows the poorest Texans access to basic legal services, services that are desperately needed to protect women and children from domestic violence and to provide legal assistance to the elderly who have nowhere else to turn.” For more than a dozen years, the Washington Legal Foundation has challenged the programs as a violation of the Fifth Amendment, arguing that the interest earned in the accounts belongs to the clients and cannot be taken by the state without just compensation. In 1998, the conservative D.C. public interest group won an initial victory, when the Supreme Court ruled in a Texas case that the interest was, constitutionally speaking, the property of the clients. But it left unresolved whether IOLTA programs amounted to a taking and whether clients were owed any compensation. The Court answered those questions March 26 in a Washington state case also brought by the Washington Legal Foundation. Writing for the majority in Brown v. Legal Foundation of Washington, No. 01-1325, Justice John Paul Stevens said the Court assumed the IOLTA programs amount to a taking, albeit a minimal one — and for a valid public purpose. “The overall dramatic success of these programs in serving the compelling interest in providing legal services to literally millions of needy Americans certainly qualifies the . . . distribution of these funds as a ‘public use’ within the meaning of the Fifth Amendment,” Stevens wrote. But Stevens went on to state that “just compensation” for clients whose interest is taken in a properly run IOLTA program is zero. “If petitioners’ net loss is zero, the compensation that is due is also zero.” Justice Scalia angrily dissented, arguing that the majority had ignored precedent and adopted an untenable interpretation of the Fifth Amendment. “Perhaps we are witnessing today the emergence of a whole new concept in Compensation Clause jurisprudence: the Robin Hood Taking, in which the government’s extraction of wealth from those who own it is so cleverly achieved, and the object of the government’s larcenous beneficence is so highly favored by the courts (taking from the rich to give to indigent defendants) that the normal rules of the Constitution protecting private property are suspended,” wrote Scalia. Scalia was joined by Chief Justice Rehnquist and Justices Thomas and Anthony Kennedy. Kennedy wrote a separate dissent asserting that the majority ruling may violate the First as well as the Fifth Amendment, by permitting the “forced support of certain viewpoints.” The programs do not allow property owners to opt out if they object to the use of the interest, Kennedy noted. Indeed, the Washington Legal Foundation has a compelled-speech First Amendment claim pending against IOLTA programs in both the Texas and Washington cases. But Richard Samp, the Washington Legal Foundation’s chief counsel, says it is not clear if that line of attack will be pursued after the March 26 ruling. Samp says he was disappointed by the ruling. Timothy Dowling, chief counsel of the Community Rights Counsel, which wrote a brief in the case opposing the takings claims, applauds the Court for taking a narrow view of the just compensation clause: “The Court has seen through the empty legal reasoning of property rights extremists.” The announcement of the ruling March 26 was unusual because it gave a new name to the case that neither party had requested. It was originally — and confusingly — titled Washington Legal Foundation v. Legal Foundation of Washington. But the Court renamed it Allen Brown and Greg Hayes v. Legal Foundation of Washington, apparently accepting the determination of the U.S. Court of Appeals for the 9th Circuit that the Washington Legal Foundation and two others named had no standing to bring the case because they had not suffered any loss. The Legal Foundation of Washington receives and distributes the IOLTA funds in Washington state. Brown and Hayes are real estate purchasers who claimed they lost small amounts of interest because of the IOLTA program. In Brown’s case, the amount of interest at issue was $4.96. PRELUDE TO A CASE Hearing arguments in a case that could foreshadow its debate over the McCain-Feingold campaign finance reform law, the Supreme Court on March 25 appeared to have few qualms about a long-standing ban on campaign contributions by nonprofit corporations. The case, Federal Election Commission v. Beaumont, No. 02-403, is a First Amendment challenge by North Carolina Right to Life Inc. Underlying the case is a 96-year-old ban on corporations of all kinds from making direct donations to political candidates. The North Carolina group is challenging that ban only as it applies to nonprofits. At one point during the oral argument, Justice Sandra Day O’Connor asked whether the prohibition had been altered by last year’s massive revision of campaign finance laws, the Bipartisan Campaign Reform Act. Deputy Solicitor General Paul Clement reassured O’Connor that the ban, first codified in the Tillman Act of 1907, was “miraculously unaffected” by McCain-Feingold. But still, the case is being closely watched for signs of new restlessness on the Court about its campaign finance jurisprudence, embodied in the 1976 ruling Buckley v. Valeo. That ruling will be the framework for the Court’s review of McConnell v. Federal Election Commission, the challenge to the new law that is still pending before a special three-judge panel in the District of Columbia. No new signs of discontent about the Supreme Court’s past rulings could be discerned among the justices during argument. Clement asked the Court to preserve the “fundamental distinction” made in Buckley between contributions and expenditures. Under that theory, the ban on contributions could be upheld more easily. He said the Court had repeatedly approved Congress’ “broad prophylactic approach” to restricting corporate involvement in campaigns. Clement received no objections and was hit with remarkably few questions, sitting down with 11 of his 30 minutes unused. He used some of those minutes for rebuttal. The lawyer for the North Carolina group challenging the restrictions, James Bopp Jr. of Bopp, Coleson & Bolstrum in Terre Haute, Ind., ran into more skeptical questioning. Bopp asserted that organizations like his client “play a vital role in our democratic republic.” Unlike for-profit corporations, he added, they “pose no threat of corruption, so long as they are not a conduit” for illegal contributions. Justice Scalia countered, “If I bribe someone out of a political motive, if I am an environmentalist, say, that’s not corruption?” He added, “You can have an immense corporation to advance political ideas. AARP — that’s an immense organization.” Bopp replied that “quid pro quo” corruption could be prosecuted in other ways. Justice Ginsburg also suggested that a nonprofit corporation, if exempted from the ban, “could serve as a conduit for a very wealthy person” to make otherwise illegal contributions.

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