Thursday, March 27

Recap Roundup - Here are the reports and news analyses about the Lawrence oral argument from the NYTimes (which also published extended excerpts), the Washington Post, the Washington Times (ugh), the Los Angeles Times, and USA Today. Here are some photos from the day.

Several papers noted that the battle was almost completely one-sided, and the Times highlighted the polished presentation for petitioners by Paul M. Smith, a partner at Jenner & Block's DC office with much experience arguing SCOTUS cases. According to the story, Nino Scalia filled in for the hapless lawyer from Texas, doing most of the sparring with Smith, who handily sidesteped his attacks. Scalia was in fine form, though, using a hypothetical comparing sodomy laws to prohibitions on flagpole sitting (!) and, when Rehnquist asked if a state could prefer heterosexuals over a homosexual to teach kindergarten, Scalia interjected that disapproval of homosexuality would justify such a decision by the state. Otherwise, he said, children "could be induced to follow the path of homosexuality." According to the LATimes, that comment was met with groans in the courtroom and glares from some of the justices.

The Blade had previously noted that Smith, former editor-in-chief of the Yale Law Review, is also gay. Ironically Smith clerked for former Supreme Court Justice Lewis Powell, who late in life came to publicly regret his swing vote for the majority in Bowers v. Hardwick. He was also on the APA's brief in two of the most important gay rights cases in the last decade, Romer (Colorado's Amendment 2) and Dale (the Boy Scouts).

The lines drawn yesterday were as expected. Only Rehnquist and Scalia (especially Scalia) seemed to openly side with Texas. Thomas was silent as usual. Stevens, Breyer, Bader and Souter all seemed to clearly favor the petitioners. USA Today noted that "Sandra Day O'Connor and Anthony Kennedy, usually the swing votes on the divided court, asked few questions. Their queries focused on Texas' targeting only acts between people of the same sex and not heterosexuals, which might violate the Constitution's guarantee of equality." Sounds like they are in our column, but which theory are they going for? Tune in by June 30 to find out.