Spring 2003

Supreme Court Hears Arguments in Affirmative Action and Sodomy Cases

In late March and early April, the U. S. Supreme Court heard oral arguments in two very important civil rights cases in which the ABA had filed Section-sponsored amicus curiae briefs.

On Apr. 1, the Court heard arguments in Grutter v. Bollinger, a challenge to the University of Michigan Law School's consideration of race in its admissions policies, and on Mar. 26, arguments in Lawrence and Garner v. Texas, a challenge to the constitutionality of the Texas Homosexual Conduct Law. Decisions in both cases are expected by summer.

Grutter v. Bollinger (02-241)

In filing its Grutter brief, the ABA joined dozens of other organizations, law schools and students, corporations, military leaders, and other individuals in support of the University of Michigan Law School's admissions policy as an essential effort to increase diversity in this and other schools. The ABA's brief emphasized that full participation by racial and ethnic minorities in the legal profession is necessary to ensure the adequate representation of minority interests, to ensure the legitimacy of our democracy, and to promote the diffusion of knowledge through a racially and ethnically diverse student body, and enhance the operation and legitimacy of state systems of government.

The brief notes that while minority representation in the legal profession has significantly increased in the past 40 years, minorities still are not full participants in the legal profession. It argues that abandoning race-conscious admissions programs would likely halt and could potentially retract the recent progress.

During the oral argument, attorney Maureen Mahoney, representing the University of Michigan Law School, argued that under Regents of the University of California v. Bakke, which has governed since 1978, schools may use racial preferences to achieve a diverse student body because of the interest diversity serves for all students. She distinguished the law school's efforts to achieve diversity by admitting a "critical mass" of minority students from the minority admissions quotas struck down in Bakke.

While not declaring that race should never be a factor in admissions policies, U. S. Solicitor General Theodore Olson called Michigan's diversity goals "a thinly disguised quota." Kirk Kolbo, the lawyer representing the white applicants rejected by the law school (and the undergraduate university in the accompanying case of Gratz v. Bollinger), argued that promoting diversity on campuses does not meet "the compelling state interest" necessary to permit consideration of race in admissions.

Section Council Member John D. Payton, who defended the undergraduate admissions policy in Gratz, argued that diversity is essential to overcome racial stereotypes, especially for students who grew up in segregated areas.


Lawrence and Garner v. Texas (02-102)

In Lawrence and Garner v. Texas, petitioners are seeking to strike down, as an unconstitutional violation of equal protection and privacy and liberty rights, a Texas law that they argue serves no legitimate government interest.
The ABA amicus brief in support of petitioners argues that the Texas Homosexual Conduct Law irrationally singles out a discrete group of citizens for second-class treatment and invades the privacy of the home. It also notes that, nearly 30 years ago, when the ABA adopted policy urging states to repeal laws that criminalize private, noncommercial sexual contact between consenting adults, it had concluded that such statutes undermine the rule of law by criminalizing conduct in which the state has no legitimate government interest.

In addition, the ABA brief argues that the Texas Law violates the Constitution's Equal Protection guarantees because it criminalizes conduct by same-sex couples that is not a criminal act when engaged in by different-sex couples.

During oral arguments, Paul M. Smith, lawyer for the petitioners, argued that because the Texas Homosexual Conduct Law is directed at a particular group of people (same-sex couples) and not just at conduct, it is an unconstitutional invasion of privacy rights. He also argued that while the concept of gay rights does not have deep historical roots, there always has been a spirit of personal privacy going back to this country's beginnings.

District Attorney Charles A. Rosenthal, Jr., who defended the Texas law, argued that the state has the right to set moral standards for its citizens. He argued that if the Court rules in favor of the petitioners, it will essentially disenfranchise 23 million Texas citizens by denying them the right to participate in questions that involve moral issues.

Petitioners have asked the Court to review its 1986 decision in Bowers v. Hardwick, in which a narrow majority ruled that the right of privacy does not extend to "morally reprehensible" activities.

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