BEHIND CLOSED DOORS: The Supreme Court and the Texas Homosexual Conduct Law

Friday, February 28, 2003

A case currently before the Supreme Court challenges the constitutionality of the Texas Homosexual Conduct Law, which in 1974 legalized heterosexual sodomy but not same-sex sodomy. Does the Texas law violate the constitutional rights of homosexuals, or are states permitted to pass such laws if they choose? If the Supreme Court does strike down the Texas law, what implications will that have for other civil rights that gays and lesbians are seeking, such as same-sex marriage?

Recorded on Friday, February 28, 2003

Peter Robinson: Today on Uncommon Knowledge, in the bedroom with the Supreme Court...

Announcer: Funding for this program is provided by the John M. Olin Foundation and the Starr Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today, are sodomy laws unconstitutional? Now pending before the United States Supreme Court, a case involving a 1974 Texas law, the Homosexual Conduct Law. This law made sodomy legal when performed by heterosexuals but illegal when performed by homosexuals. Does the law violate the Equal Protection Clause of the Fourteenth Amendment? Does it violate a constitutional right to privacy? And if the Supreme Court were to strike down the Texas law, what implications might that have for civil rights that gays and lesbians are seeking such as, for example, same sex marriage?

Joining us, two legal experts. Pam Karlan is professor of public interest law at Stanford University and Douglas Kmiec is dean of the law school at the Catholic University of America.

Title: Naked Justice

Peter Robinson: Journalist Anna Quindlen writing in Newsweek: "The sodomy laws are part of a dark tradition in this nation, they do not exist and have never existed to serve the public wheel. They are meant only to demonize and marginalize a class of human beings." The Concerned Women for America: "Protecting public health, safety, and morals is a rational reason to prohibit same sex sexual intercourse." Whose side are you on?

Pam Karlan: Anna Quindlen's.

Peter Robinson: No question?

Pam Karlan: No question.

Peter Robinson: Doug?

Doug Kmiec: I'm on a different side than either of those two. I don't think the court took this case that we're going to talk about to endorse same sex relationships or to be against them. I think it took this case because it has legitimate questions about the limits of the law and about privacy and how it gets defined and I think that's what's interesting to them in this particular time.

Peter Robinson: Okay. Lawrence v. Texas, the case now before the Supreme Court, challenges a 1974 Texas law known as the Homosexual Conduct Law. Prior to the passage of that law, heterosexual and homosexual sodomy were both illegal in the state of Texas. With the passage of the law, heterosexual sodomy became legal, but homosexual sodomy remained illegal. The case itself: Houston, 1998, one man is in his own apartment with a guest. The police are tipped off by a neighbor that a weapons disturbance is in progress. The police break down the door because they think there's a weapon inside. It turns out that the tip was a deliberate lie by the neighbor who was later convicted of filing a false report. The door is broken down, the police find the two men engaged in consensual sodomy, seems to be the phrase used in the case. The men are arrested, jailed overnight, and eventually fined $200 apiece. They appeal. A three-judge panel of a district appeals court reverses their conviction, then a full nine-judge panel appeals court reverses the reversal, permitting the fines to stand. And then the Texas Court of Criminal Appeals says we're not touching this one and the case is now before the Supreme Court of the United States. I should point out by the way that it wasn't just the fine that these two men suffered. The misdemeanor offense disqualifies them from being employed in more than a dozen professions from nursing to driving buses and would require the men to register as sex offenders in a number of states--Idaho, Louisiana, Mississippi, South Carolina--if they ever decide to live there. So it's not just a $200 fine, it's a substantial stigma that has attached to them. Now then, is the practice of homosexual sex a constitutional right? 1986 case, Bowers v. Hardwick, the Supreme Court ruled five to four that there is no constitutional right to engage in homosexual sodomy. So the justices rule in that case that the state of Georgia did nothing unconstitutional when it convicts two male citizens for having sex in a private home. In this famous quotation from Justice Byron White who writes that to claim that homosexual sodomy is a fundamental constitutional right, a constitutional right implicit in the concept of ordered liberty is "at best facetious." Let's begin with Bowers v. Hardwick and Justice Byron White. What do you make of that decision?

Pam Karlan: Well, I think the decision was wrong at the time. It rested on assumptions about what the history of the regulation of sodomy were that turn out not to be true as a historical matter. And it phrases the question I think in the wrong way, which is it's not a question about whether people have a right to engage in homosexual sex. The question is whether all people have the same right to engage in intimate associations that are meaningful to them. And so it's not a case about the right to engage in sex, it's a case about the limits of the government's power to criminalize private consensual sexual activity.

Peter Robinson: And even as a sort of straightforward legal matter, they got their basic tackling wrong? The historical scholarship was flawed on which they based the decision?

Pam Karlan: Yes, there is not a longstanding prohibition on homosexual sex, there's a long standing prohibition on non procreative sex and on sodomy generally, and as you said…

Peter Robinson: Those laws go way, way back or are they kind of 19th century?

Pam Karlan: Well, they were ecclesiastical laws originally and at the time of the reformation in England, they became secular laws.

Peter Robinson: Oh, so these go all the way back into common law…

Pam Karlan: They're not laws about homosexual activity. They're laws about particular kinds of conduct, so all anal sex, all oral sex later became a crime. It was not singling out one group of people who engaged in the practice, it was all people who engaged in the practice.

Peter Robinson: Right, and the court missed that point?

Pam Karlan: It missed that point that the modern--it's very modern, twentieth century rule, that says anal sex is all right, oral sex is alright if you are having sex with someone of the opposite sex, but not if you're engaging in sex with someone of the same sex.

Peter Robinson: Let's get Doug Kmiec's opinion on the Bower's decision.

Title: If It Ain't Broke

Peter Robinson: Okay, Bowers v. Hardwick, Doug?

Doug Kmiec: Well, first of all I think it was rightly decided and I don't think they got the history entirely wrong. I think in fact there's more un-clarity in the history than not. There's a good deal of history that says yes, non-procreative sex generally was prohibited, but because they assumed that non-procreative sex was in fact between same sex individuals, the levels of specification between homosexual and heterosexual just simply didn't have to be as explicit as they are in modern times. So we do have a century--we have centuries of criminal prosecution of sodomy related behavior. And the argument in Bowers v. Hardwick was that things that had been treated as a crime for centuries were a fundamental liberty and the obvious answer to that question was no. I mean, the way one identifies liberty and constitutional jurisprudence is to identify it out of the text of the Constitution or a set of un-enumerated liberties, as Pam rightly said, implicit in the concept of ordered liberty that are so inherent to human dignity that you couldn't envision a democratic republic existing without acknowledging the existence of these rights. Justice White, it seems to me, got it right to say from the history, however wrong the particular nuances of history may have been shaded, to say that this was not an implicit fundamental right that could be protected by the Constitution. Therefore, if a state like Georgia, or if a state like the present one, Texas, chooses to legislate on this subject, the general posture of the court is to say there's no fundamental right involved, there's no suspect classification, we're not discriminating on the basis of race for example, and therefore we defer to the legislative judgment of individuals that we have elected to decide the health, safety, general welfare, and morals of the community.

Peter Robinson: Procedural point to both of you--why then did the court even accept the Texas case? It would seem to me that for the court to rule in favor of the plaintiffs in the Texas case would be to overturn Bowers v. Hardwick. You can't say that it's all right for Georgia to make something illegal but no all right for…

Doug Kmiec: That's right, and Pam may well be right that they took it because there's been a lot of criticism of Bowers and they may have taken it because they want to overrule it. But remember Peter, it only takes four votes to get a case reviewed. It takes five votes to win, and the four votes may have not been reflective of the general thinking of the five votes necessary to carry an opinion.

Peter Robinson: Pam, just before, set something up for me--so we're members of the Supreme Court, what are you thinking, what goes through your mind as you search for grounds to overturn, which is what we're discussing, overturn what is still a relatively recent decision? That's quite a big deal for the court isn't it?

Pam Karlan: Well, the court overturns its prior decisions…

Peter Robinson: Not all that un-often?

Pam Karlan: Not all that un-often, to put it in an ungrammatical way. But the court does go back and revisit a lot of cases and in the kind of time period that we're talking about here, I'll give you an example from last year at the Supreme Court. In 1989 the Supreme Court held that it was not a violation of the constitution, not a violation of the Eighth Amendment, to execute mentally retarded individuals. Last year, the court revisited the issue and said we were wrong, times have changed, evolving standards of decency are different. And the same thing I think is really quite true if you look at the America of 2003 as opposed to the America of 1986.

Peter Robinson: But you just put your finger on a critical point--they're going to have to argue something about evolving standards aren't they--evolving moral standards?

Pam Karlan: Yes, I think they--I think they probably will. The other thing though to say that's different about the two laws is the Georgia law, on its face, criminalized all oral sex and all anal sex. So between a married couple, between people of the same…

Peter Robinson: Oh I see, that wasn't restricted just to homosexuals.

Pam Karlan: That's right, it wasn't a law about homosexuality. And one of the things that ironically enough Justice Scalia has said about the Equal Protection Clause is that the salvation of the Equal Protection Clause is that it requires that we accept, for ourselves and our loved ones, the same laws that we impose on everyone else.

Peter Robinson: Pam brought up the Equal Protection Clause. Let's look at that more closely.

Title: What's Good for the Goose…?

Peter Robinson: Fourteenth Amendment to the Constitution: "No state shall deny to any person within its jurisdiction the equal protection of the laws." In Texas, the same physical act that is legal for a heterosexual couple is illegal for a homosexual couple. Dean Kmiec, how do you construe that as anything other than a violation of the Equal Protection Clause?

Doug Kmiec: Well, again we've got a methodology by how the court approaches equal protection questions. If there isn't a fundamental right involved, we've already established that sodomy is not a fundamental right.

Peter Robinson: Do you grant that point by the way?

Pam Karlan: No, because I don't understand this to be a case about whether sodomy is a fundamental right as opposed the right of intimate association--the right to have sexual relationships that are meaningful to you as a consenting adult.

Peter Robinson: Back to you, but there's a little parenthesis, we'll have to come back to that, go ahead.

Doug Kmiec: Okay. And if there's no suspect class involved, and I don't think there's a suspect class here, then the level of review that the court applies in terms of reviewing classifications--you have to remember, the law classifies lots of us. It says people under 16 can't drive cars, but people over 16 can drive cars. It says people who go to law school and get law degrees can take the bar exam and practice law, and people who haven't done those things cannot. And so there are rational classifications and so the question you really ask is, is the classification, is the distinction between homosexual and heterosexual practice here, does it have a rational basis? I think it's uphill for Texas when it does this because frankly the tradition is any sexual act that is closed to new life, closed to procreation, had been prohibited by religious teaching and had been prohibited by morals that had worked their way into the law. Now that they've drawn this distinction, they've immunized half of the population, or a good portion of the population and not the other group. What Texas can say and is saying in its brief is that there's still a distinction to be drawn because there are biological differences that can be rationally observed and that there is a relationship between this statute and a goal--what's the goal--the preservation of marriage and family life and holding that out as a type of culturally important organization upon which most of the good things in our life depend. So that's an argument. It's a difficult argument for them to make, because in fact family life is not promoted by heterosexual sodomy in any particular way either in terms of new procreative life and therefore they've drawn a distinction that's an awkward one. It's a distinction that exists in about four other states…

Pam Karlan: Right. It's rare.

Doug Kmiec: …and as opposed to there's still fourteen or fifteen states that have explicit prohibitions of sodomy across the board.

Peter Robinson: So it is in fact a difficult equal protection case to make or you're saying…

Doug Kmiec: I think it's difficult because the connection between that and its rational basis, advancing family life, advancing marriage, advancing those important interests, is more tenuous once they've exempted the heterosexual side of the equation.

Peter Robinson: And you agree but even put it more strongly, right?

Pam Karlan: Well, they've exempted for example non-marital and extra-marital oral and anal sex are not a crime in Texas. So it's not just within a married…

Peter Robinson: Happy married life.

Pam Karlan: …it's not a law about married people at all. It's a law about particular acts…

Peter Robinson: Okay.

Pam Karlan: And the decision to treat those acts differently when they're engaged in by couples who are of the same sex is I think, as Doug says, a difficult uphill battle.

Peter Robinson: Next topic, does the Texas law violate any presumed right to privacy?

Title: Behind Closed Doors

Peter Robinson: Rik Hertzberg writing in The New Yorker, I'm quoting, "Sodomy laws are an absurd anachronism and an obvious violation of the right to privacy." Is he edging toward firm constitutional ground there?

Pam Karlan: Well, this is where Doug and I, I think, differ, which is…

Peter Robinson: Give me a little history on the right to privacy, where did it come from? It ain't in the Constitution in plain text.

Pam Karlan: No, you will not find the word "privacy" in the Constitution. What the Supreme Court did, really starting with the case called Griswold against Connecticut, which was about the right…

Peter Robinson: '67?

Pam Karlan: '65, I'm sorry--which was about the right of married couples to use contraception was the Supreme Court said, if you look at all of these different constitutional provisions, what you see is there's something that they're all getting at and the language the court uses, the language of penumbras, so spotlights and then there are little shadows around the spotlights. So if you think about the Fourth Amendment, which protects you against unreasonable searches and seizures and protects the sanctity of the home. You think about the First Amendment and the right of people to assemble and to speak and to practice their religions. You think about the Third Amendment and the protection against having troops put into your house, and the Ninth Amendment, which is a very vague amendment, which talks about the rights that people have that they had before the Constitution…

Peter Robinson: And these all rest on the presumption of…

Pam Karlan: …was enacted and if you add this all up you get an idea that one of the things the Constitution was designed to protect is individual freedom and individual privacy, the ability of individuals to make decisions for themselves…

Peter Robinson: Doug, you don't buy the right to privacy?

Doug Kmiec: I believe the Ninth Amendment did have as its purpose, saying that there are rights retained by the people that weren't enumerated by the founders. The founders were very worried about having an explicit bill of rights and they were worried because they knew that there were other rights that they couldn't anticipate or that they didn't anticipate and that by not putting them on the list, the argument would be made that government power extends to them. We're at an age, I think this case is very important because we're at an age where we're confronting the threat of terrorism of course and one of the aspects of confronting the threat of terrorism is maintaining a balance between national security and civil liberty. And the fulcrum point for that balance is a right to privacy, but as Pam very thoughtfully explained, the right to privacy is a series of pinpoints in the Constitution. It's a protection against unreasonable searches and seizures. It's a protection for the married couple and making private decisions with respect to their marriage. It's a protection of all of these things that don't amount to a kind of comprehensive view of privacy and therefore when we confront this question of do we have the right balance, we really don't have a doctrine we can give behind.

Peter Robinson: So, if there is to be a right to privacy at all, surely it must mean that a man, in his own property, on his own apartment with a guest, with the door closed, gets to do what he wants to do with another man, right?

Doug Kmiec: Well, here's where they have to be careful because I don't think they want to get into the moralism business. I don't think they really want to either endorse a particular sexual practice or be seen as condemning it. That's not their role fundamentally and it's something that would be, I think, enormously controversial. But they do…

Peter Robinson: You don't think there's an itch on the part of some of the court to talk about evolving standards, moral standards?

Doug Kmiec: Well, there might be, but it's an itch they ought to resist because when they do that…

Peter Robinson: She says give into the itch.

Doug Kmiec: …when they did that last time, they got into a fair amount of trouble and of course we're talking about the abortion case in that context. But, separate and apart from that, I think there is obviously a sizable body of public opinion that still views family life in a very traditional sense and as worthy of importance and honor. I don't think the court wants to be seen as cutting against that. At the same time, they want to protect privacy. And to protect privacy, they want to know: is there a limit to the legislative power when it comes to private acts?

Peter Robinson: Let me ask Pam what she makes of the states' rights argument advanced in favor of Texas.

Title: Don't Mess with Texas?

Peter Robinson: Texas Court of Appeals in rejecting the challenge to Texas law, "Our concern," our the Texas Court of Appeals concern, "cannot be with cultural trends and political movements because these can have no place in our decision without usurping the role of the legislature. While the legislature is not infallible in its moral and ethical judgments, it alone is constitutionally empowered to decide which evils it will restrain when enacting laws for the public good." So there you've got firm statement based on, to use the laymen's term, sort of states rights approach. That's pretty persuasive isn't it?

Pam Karlan: Well, states rights always have to give way in the face of federal constitutional commands to the contrary. So that if the U.S. Constitution, as I believe it does, protects the right of intimate association and forbids the states from making the kind of distinction they made here, which is to treat some people as deserving of respect…

Peter Robinson: Let me stop you there to make it explicit--so you believe then that the Texas sodomy law is unconstitutional both on the grounds of a right to privacy and because by simply applying to homosexuals, it violates the equal protection clause?

Pam Karlan: That's correct.

Peter Robinson: Two strong grounds for overruling it.

Pam Karlan: That's correct. And I think the argument about family life raises a really important question, which is: sodomy, oral and anal sex, are integral to the family lives of gay men and lesbians. And one of the things that the Supreme Court I think was thinking in 1986 when they decided Bowers against Hardwick was that this had nothing to do with family life. And one of the things that turns out to be true is there are eighty thousand same sex couples in Texas who live with each other whom the census counted. Those are families and those people have the same rights as straight people to have intimate sexual relationships within their families.

Peter Robinson: Now let me ask you an obvious follow up question--how do you work your notion or this new notion of family into the Constitution? How do you do that?

Pam Karlan: Well, one place you do that is by looking at a case the Supreme Court decided in 1973 called Moore against City of East Cleveland, which was about the ability of a grandmother to live in a house with her two grandsons who were not related to one another closely enough. The city had a zoning requirement that said can't have this many people living together unless they're in a nuclear family. And one of the things the Supreme Court said there is the right to family autonomy is not just the right of the conventional nuclear family.

Peter Robinson: Okay, so the court has already opened the door to this new definition?

Pam Karlan: I think it has.

Peter Robinson: Last topic, the broader implications of the court's pending decision in the Texas case.

Title: Seven Grooms for Seven Brothers

Peter Robinson: Kelly Shackleford, a lawyer for the Liberty Legal Institute, I'm quoting her, "The argument against the Texas law, if successful, would have much broader implications than just the sodomy law. It would basically make our marriage laws, which do not at present recognize same sex marriages, unconstitutional." Now in first reading that sounds outrageous, as being alarmist, but on the other hand if you're saying wait a minute, if what is legal for heterosexuals must also be legal for homosexuals, you would like to subvert, overturn, and rewrite marriage laws in all fifty states, is that correct?

Pam Karlan: I think one of the implications is that it does raise serious questions about marriage. Now whether it requires the court to hold that laws restricting marriage to opposite sex couples are unconstitutional isn't clear, but it certainly does open the door more to that argument.

Doug Kmiec: And I think the court wants to stay as far away from that proposition as it can.

Pam Karlan: Absolutely.

Peter Robinson: Oh, you agree they don't want it to go…

Doug Kmiec: I don't think this court is going to say in this opinion that there is an implied right of intimate association and I don't think they're going view this case as a way to advance the gay agenda even though I think the people advocating it against Texas view it in that fashion.

Peter Robinson: So call it for me. On equal protection, how should they decide?

Doug Kmiec: On equal protection I think the court should decide that Texas has the right to make its own decisions within the context of its legislative assembly.

Peter Robinson: And the right to privacy, they just won't?

Doug Kmiec: This is where I think the court is going to spend its time. They're going to ask itself, what is the proper role of the law with respect to private behavior that does not have direct physical harm to someone else and does not directly implicate public morality? Now to the extent that those three things are present, I think the court is likely to say the prudential thing is that the law ought to be quiet, that this law, by and large is unenforceable and that to the extent that there's a religious tradition and a cultural tradition that wants to preserve the family, it has to do that through church teaching and school teaching and family teaching and it cannot use the criminal law to accomplish that. I think that's where the court wants to spend its time exploring that issue. And so I think Texas may lose on the issue of what the scope of their police power is--their power to legislate on this question.

Peter Robinson: Let me ask you then to be explicit--you endorse that line of argument that the law ought to be silent?

Doug Kmiec: I think fundamentally yes, as a prudential matter, this is--if you actually look at it, these laws don't get enforced except by the kind of accidental facts that we have here--somebody is called on a police matter, they discover something incidentally…

Peter Robinson: The cops could not have been happy to have to enforce that.

Doug Kmiec: Well, that's right.

Pam Karlan: Well, and something worse happens, which is the law doesn't get enforced as a criminal statute, but it gets enforced in all sorts of other ways. So for example, the Dallas Police Department for a while would not hire gay people to be officers on the ground that every gay person in Texas must be a criminal because they're violating this law.

Doug Kmiec: Peter, we've got a home here and the home turns out to be a special place in constitutional jurisprudence for all sorts of reasons. And so this is an opportunity for the court to explore how much privacy is going to be associated with the home, private, non-harmful behavior. And at the same time, they're going to want to be very careful not to be seen as endorsing a cultural revolution that throws over marriage and family traditionally understood.

Peter Robinson: Last question, because it's television, call it, what will the decision be?

Pam Karlan: I think it will be six-three in favor of Lawrence…

Peter Robinson: Overturning Texas.

Pam Karlan: That's correct.

Peter Robinson: Six-three, so who are the middle justices who vote with the…

Pam Karlan: I think both Justice Kennedy and Justice O'Connor will probably vote to strike the law down.

Peter Robinson: Got it. Doug, what do you think?

Doug Kmiec: I'm marginally in agreement with that lineup. I'm not sure if both Kennedy and O'Connor will go to the other side, but I think…

Peter Robinson: But one or the other is bound to?

Doug Kmiec: But I think they're going to question the rational basis of the enforceability of this law and I think it's going to be on that ground.

Peter Robinson: Pam Karlan, Doug Kmiec, thank you very much. I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.