Excerpts From Arguments Before the Supreme Court in TEXAS SODOMY CASE
 

Excerpts From Arguments Before the Supreme Court

WASHINGTON, March 26 ? Following are excerpts from arguments before the Supreme Court today in Lawrence v. Texas, as recorded by the Alderson Reporting Company. Arguing against the law was Paul M. Smith; defending it was Charles A. Rosenthal Jr., the district attorney for Harris County, Tex. The Times has supplied the identities of the justices.

MR. SMITH The one thing, that I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there's one minority of people [who] don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don't want those people over there to have the same right.

JUSTICE ANTONIN SCALIA I mean you can put it that way, but society always ? in a lot of its lives ? makes these moral judgments. You can make it sound very puritanical, the, you know, the laws against bigamy. I mean, who are you to tell me that I can't have more than one wife, you blue-nose bigot?

Sure, you can make it sound that way, but these are laws dealing with public morality. They've always been on the book; nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy?

MR. SMITH First of all, the first law that's appeared on the books in the states of this country that singles out only same-sex sodomy appeared in the 60's and the 70's, and it did not ? and it does not ? go way back, this kind of discrimination.

Now, bigamy involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors, we include a criminal law which is where the most heightened form of people protection analysis ought to apply.

This case is very much like McLaughlin, Your Honor, where you have a statute that said, We're going to give a specially heightened penalty to cohabitation, but only when it involves a white person with a black person. That interracial cohabitation is different, and the state there made the argument, We're merely regulating a particular form of conduct, and that's a different form of conduct than interracial cohabitation. And this court very clearly said, No, you're classifying people; and that classification has to be justified.

And this court at many times said a merely disapproval of one group of people, whether it be the hippy communes in Moreno or the mentally retarded in Cleburne, or indeed gay people.

CHIEF JUSTICE WILLIAM H. REHNQUIST But all, almost all, laws are based on disapproval of either some people or some sort of conduct. That's people legislate.

MR. SMITH And what this court does under the equal-protection clause is standard as a bulwark against arbitrary government . . .

CHIEF JUSTICE REHNQUIST If you prevail, Mr. Smith, and this law is struck down, do you think that would also mean that a state could not prefer heterosexuals to homosexuals to teach kindergarten?

MR. SMITH I think the issue of preference in the educational context would involve very different criteria, Your Honor, very different considerations. The state would have to come in with some sort of a justification.

JUSTICE SCALIA A justification is the same that's alluded to here, disapproval of homosexuality.

MR. SMITH Well, I think it would be highly problematic, such a custody case. JUSTICE SCALIA Yes, it would?

MR. SMITH If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school. . . .

I do have an urge to shake people and yell *it is just sex!*

These justices Scalia and Rehnquist obviously aren't getting any.

How out of touch is all that bullshit?

Moral conservatives... the only solution is a bullet to the head.

The government should have to prove that there is a valid reason to take away a person's right to do what they want in private before they can take them away.

The U.S. constitution assumes that we have god given rights, not that the state gives us rights. For Texas to take away the rights of a citizen, they should have to prove there is a reason why they need to take that right away. Otherwise, the bullshit law should be thrown out.

In this case, it seems like the people who want to fuck are being forced to prove they should have a right to do it. That's not the way it should work. They should be assumed to have a right to fuck and the government should have to prove that there is a reason they don't have that right. They aren't harming anyone, so why is it illegal?

Constitution or no Constitution, the reality of the situation is that the state invents and revokes rights all the time and at its pleasure. The problem is that it is nearly impossible to get a large enough group of people interested enough in things like this to make sufficient noise about it. The people in the USA still have at least the illusion of power and if enough people got together they can still get their way, but on an issue like this that is pretty unlikely.

Here's simple fact: Who I fuck and which hole I fuck them in has absolutely no effect on anyone but the two (or three or four) of us who participate. There is no excuse for the government to regulate anything that does not effect or endanger the citizens at large. In order for any privte sexual activity I engage in to bother anyone else, they would have to be invading my privacy to catch me doing it in which case they are in the wrong and not me.

You can have endless debates on other "victimless crimes" such as prostitution or smoking marijuana, but sex in the privacy of your home is a pretty clear-cut case of "nobody's business".

SpaceAce

If I ever have to go before the court, remind me to get a better lawyer than this "Mr Smith". I prefer my lawyer to have at least grade-school sentence structure and know when to use adverbs.

He sounds like a blithering idiot who happens to have one historical fact that he's not even sure about - "the first law appeared... in the 60's and 70's". Well which *decade* was it? Might you have an actual *year* handy? If you're going to use it as a point to your argument, at least know when it came into law.

You will be as soon as the war on terror turns into the war on porn.

Actually when there is an argument before the court, there are always going to be justices playing devils advocate, even on issues where they are pretty much decided ahead of time.

The Supreme Court works in some very convoluted and political (within the sense of the justices and their agendas) ways to accomplish its' business.

Just to get the justices to agree to hear a case is a minor miracle, since they are very careful to pick and choose the ones they will hear, and the actual system by which they do this involves alot of compromise and negotiation.

the only sex they have in texas is anal sex.

heh.