A Litigator’s Dream: Arguing Lawrence v. Texas Before the United States Supreme Court
Interview with Lead Attorney Paul Smith
Originally published in Lambda Legal’s Of Counsel: Vol 1, No 3
On March 26, 2003, Paul Smith stood before the nine justices of the U.S. Supreme Court and argued the merits of Lawrence v. Texas. Few attorneys have the opportunity to play a critical role in such a momentous case. Smith, a seasoned Supreme Court litigator, talks about the strategies behind the argument and reflects on his experience that day.
Q: During the oral argument in Lawrence v. Texas, you made a statement which basically said to the Court: The American people have moved on, it’s time for the Court to catch up. What was the strategy here?
A: It came from a recognition as we were getting ready for argument that, while the case was somewhat controversial legally, most people really didn’t have an understanding that it was still illegal for you to make choices about sexual partners and forms of sexual intimacy. With that recognition in mind, I was almost looking for an opportunity to say that the popular consensus has long ago embraced the notion that private, adult, consensual conduct is something that’s in the personal sphere, not in the sphere of law enforcement. I hoped to give the Court some comfort level in making the decision. At the same time, you have to be careful not to offend the Court. I had to make sure I did it in a way that didn’t say, ”you all are so out of the loop you don’t recognize what everybody else does.”
Q: Did the justices have any questions that caught you off-guard?
A: There were two questions that came along. They both involved Justice Antonin Scalia. One was when we were arguing that the law was discriminatory because it only applied to same-sex sodomy. Justice Scalia asked, “Under your theory, wouldn’t traditional rape laws be unconstitutional because they only apply to protect women from penetration, not other people, not same-sex penetration?” Looking back, I think I could have given a better answer than I did. The right answer would have been that sexual assault is illegal under one statute or another regardless of whether it’s same-sex or not, but that’s not quite how I phrased it. Sometimes you get done with these arguments, and you try to rephrase your answers for the next ten years.
Then the Chief asked whether, under our theory, it would be unconstitutional to deny the right of gay people to teach kindergarten. At that point, I had a choice about how aggressive to be in coming back. I took an intermediate position by saying they would have to have some reason other than mere antipathy to gay people about not wanting them to have that job. Justice Scalia then interjected, “Well, the reason would be they don’t want them to lead children down the path of homosexuality.” So, there I am, standing up there with the sense that the whole world, or at least the whole gay world, was watching, and I had to decide whether to directly take on the absurd notion that little children are going to be turned into gay people or lesbians by having gay and lesbian teachers. I could have said, “Obviously that’s empirically ridiculous.” But I chose, in the heat of the moment, to not contest that and say that those considerations are not before the Court. Here we have just pure animosity towards gay people and gay sex. We can worry about the employment context another day.
Q: Did you feel that you were able to read where the moderate justices were leaning during the exchange?
A: That was somewhat difficult because they were uncharacteristically quiet — “they” being Justice Sandra Day O’Connor and Justice Kennedy, on whom we all thought the outcome turned. The only questions they asked me related to how different it would be if the law in Texas didn’t just single out same-sex sodomy, but barred sodomy for everybody. It was sort of odd, because Justices Kennedy and O’Connor typically have asked questions that are pretty revealing of what they think. In the end, though, we were relieved that they hadn’t said anything hostile. The little they said was so non-hostile that we had real reason for optimism, particularly since both Kennedy and O’Connor had joined the majority. In fact, Kennedy had written the majority [opinion] in the Romer case involving the Colorado constitutional amendment that preempted all legal protections for gay people. So we already had some strong precedent on our side for [the] equal protection argument that you can’t just single out gay people for bad treatment because you don’t like them, which was one of our key arguments.
Q: So there was no moment during the argument when you thought you’d won?
A: No, there really wasn’t. We felt pretty good about the whole situation from the very moment that the Court decided to grant review of this case, before any of the briefs were even written. We had the hope that the justices who we knew would be on our side wouldn’t take another case if they didn’t think they could get five votes to come out differently than the Court had in Bowers v. Hardwick. It would have been horrible to take the case and to then reaffirm all the bad stuff they had said 17 years earlier in Bowers. So that, plus the Romer case, gave us a reasonable degree of optimism that they took it for a purpose, and the purpose was to reverse the convictions of our clients. The Court reverses much more often than it affirms when it takes cases. So, while we never knew we’d won, we were an upbeat team. At the same time, we had a sense of a great deal of pressure and the weight of history weighing on our shoulders.
Q: That must have been tough for you — that sense of pressure.
A: It was certainly a high-pressure assignment, but the incredible team of people, both at Jenner & Block and Lambda Legal, all shared this sense that this was not something that you could just start and then not give it the absolute best you could. To lose would have been just disastrous. So, I think, the pressure helped in that sense.
Q: Given the optimism about the case up to that point, what did you feel you needed to do in the oral argument?
A: This is a case where, I think, every justice would’ve had some real sense of where they were before we even wrote the briefs. So, one of the things you’re doing with the argument is giving them the opportunity to ask questions, seeing if you can address those questions and seeing if those justices who may have some doubts can be brought over the line to our side. The other thing I wanted to do was to make sure that the community felt like it had been well-represented for those 30 minutes, and that this argument had been made as well as it could be, so that whatever happened, they wouldn’t feel like the advocacy had fallen short. So there was that whole other aspect of it as well, which is often the case in Supreme Court cases. The argument has a kind of almost theater aspect to it, the sense that the audience is larger than the nine justices. It’s everybody else watching, too.
Q: Given the recent developments on the Supreme Court, do you have concerns about the future of LGBT and HIV rights?
A: First of all, people shouldn’t assume that the Court will immediately turn around and overrule Lawrence. At the moment at least, there remain five justices who voted with us in Lawrence [Justices Kennedy, Stevens, Ginsberg, Breyer and Souter]. But the odds are that those five will not still be on the Court in the coming years, if only because Justice Stevens is 88. So much depends on who replaces them.
Another reason for some concern is that the reasoning of Lawrence — the reasoning of why couples have a right to make free choices about sexual intimacy — is tied up constitutionally with the reasoning that underlies the reproductive freedom line of cases. So, you can imagine a scenario in which Lawrence is a victim of the overruling of Roe v. Wade if the Court were to go so far as to say that there is no such thing as a substantive due process right to make individual choices, or for couples to make choices about matters of personal privacy. If they went very broadly in that direction, they would overrule a whole line of cases and say, for example, that it is okay for states to ban birth control and for states to regulate sexual conduct in any way they want to. If they did that, then we would have lost a great deal, not only in the abortion area, but in related areas all the way to Lawrence itself.
That said, it’s also possible we’ll see good forward movement in the Supreme Court if the right appointments are made and the right cases get there at the right time. The situation is very fluid, for a whole variety of reasons.
Paul Smith presented the Lawrence v. Texas oral argument to the U.S. Supreme Court. He is a partner at Jenner & Block LLP, in the firm’s Washington D.C. office.
