Lawrence and the 14th Amendment

Late at night in Houston, Texas, on July 17, 1998, a police officer caught John Lawrence having anal sex with another man, Tyron Garner. Your reaction might be, who cares and/or why is this something to “catch”? But in 1998, it was illegal in Texas to engage in “sodomy.” A law at the time made “deviate sexual intercourse with another individual of the same sex” a misdemeanor. Lawrence and Garner were convicted for their actions and faced a fine for being homosexual and having sex. Their defense argued that the Texas law violated the 14th amendment of the constitution, which prohibits the government from depriving “any person of life, liberty, or property, without due process of law” and that they shall not “deny” “equal protection of the laws.” Two appeals later, Lawrence had lost one ruling and won another. Which meant their case was going to the highest of the highest courts: the Supreme Court of the United States.

Paul Smith

In the 1980s, a Yale law grad took a succession of clerkships, including one with Supreme Court Justice Lewis Powell. His name was Paul Smith, a lawyer who now boasts a decorated career, having argued 19 cases in front of the Supreme Court and spent 30 years in a top D.C. law firm. It’s safe to say that while you might not know his name, he has affected your life in some way.

Smith is most notably known for arguing a 2013 case about the right of a same-sex couple to engage in sex. The interesting point here is that Smith had spent most of his life up until then hiding the fact he was gay. And there he was, arguing for rights of not just a group but a group he was a part of, laying the groundwork eventually for marriage equality. Oh, and that case was Lawrence v. Texas. Lawrence, thanks to Smith, won, despite the late Justice Antonin Scalia harping in dissent about fears of a “so-called homosexual agenda.”

The court was able to finally find themselves on the right side of history on the issue of gay rights, seeing gay people as a protected class. It took a lot to persuade them. Texas argued, as many states had before, that they have the right to preserve morality, and conservative justices employed the “slippery slope argument,” alluding that prostitution, bigamy, “pole sitting” ? and incest were on their way with the giving of the right of privacy to same-sex couples. Luckily, Paul Smith found a way to speak to the justices about the issue in a way they would understand. He knew that the very elementary equal protection argument — which may seem simple to some — wasn’t enough to sway them. So he argued that the government’s to intrusion into the bedroom of citizen’s goes against our “basic American values about the relationship between the individual and the state.” This argument worked on six of the justices.

Gill v. Whitford 2017

Earlier this week, Paul Smith found himself before the Justices. Again, it would seem he was arguing for a group of people who were not being treated equally by their government. Democratic voters in Wisconsin sued their legislature because, while they are in the majority, they hold a minority in their state and federal legislatures. They were victims of the map-drawing art of gerrymandering: a precise way of drawing districts in a way that favors one side over the other. Knowing how to play at the Justices sensibilities, Smith spoke about this as an egregious trespass of our core American principles:

“Other than the fact that politicians are never going to fix gerrymandering ― they like gerrymandering. The problem in this area is if you don’t do it, it’s locked up. The voters of Wisconsin can’t get it on the ballot without the legislature’s consent. And that’s true in most of the states that don’t have commissions now. We’re here telling you, you are the only institution in the United States that can solve this problem, just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”

His argument stood, again downplaying the unevenness of the government’s actions, that one of our founding tenements, democracy, like privacy in Lawrence v Texas, was in trouble. Democrat voters were being helplessly discriminated against because of their views.

The outcome of this case will rest largely in the same way Lawrence had on political lines. The conservative justices will harp that it is not the justice’s jobs to make substantial impacts in the political sphere— even though they don’t like what is happening, the legislatures must remedy this. The liberal justices’ views can be best summed up by the pretty awesome clap-back the indomitable Ruth Bader Ginsberg served Trump appointed Neil Gorsuch: “Where did one-person/one-vote come from?” If you guessed The Supreme Court you would be correct. If the Supreme Court cannot parse down exactly what democracy should look like when legislatures start to veer into oppressive, very fascist-like uni party coercion, then what was it doing in the litany of cases where it decided electoral discrimination was not okay (ex. Reynolds vs. Sims and Baker vs. Carr).

McHee, the APA, and Technical Illiteracy

By now, and in the coming year, many articles and breakdowns of this case have and will be written from a legal and political perspective. Whether or not something is done, mostly depends on Justice Kennedy, the justice with the mettle to let down liberals and conservatives on any given day. But perhaps there is a conversation not being had, beyond the merits of the cases or the principles of the law, but within the ability of the justices themselves. Perhaps there is a question that is too unsettling to ask, too scary to approach: are these old but formidable legal minds technically literate enough to handle any and every case?

Back in 2013, the American Psychological Association (APA) filed an amicus brief (friend of the court brief) for Lawrence in his case against Texas. They explained to the Supreme Court that after “decades of research and clinical experience have led all mainstream mental health organizations in this country to the conclusion that homosexuality is a normal form of human sexuality.” Furthermore, the research concluded that “...empirical research from the social and behavioral sciences pertaining to sexuality, sexual orientation, and the social psychology of prejudice” show the harms of the anti-sodomy law. They spelled out the devastating “effects of prejudice”.

Jumping four years later, Eric McHee a Political Scientist who has worked on elections and electoral reform, also issued an Amicus Brief to the court; he explained the evidence behind the plaintiff’s argument that gerrymandering is getting worse. He wrote about his research on the efficiency gap and updated them on electoral mapping, which has really become surgical at this point.

Both the APA and McHee were presenting the empirical evidence for why the people who spend their lives studying an issue agree that the government really, really has dropped the ball. The difference in these cases though lies in their subject areas.

Without making you squeamish, assume that the justices are well versed on what sexual intercourse is. While it took them a while to finally say, people should be able to have sex in their homes with members of the same sex, the idea behind it was accessible. In the case of electoral mapping, Justice Breyer called McHee’s measures of partisan redistricting “social science stuff and the computer stuff ”. The Chief Justice, Roberts admitted “it may be simply my educational background” but McHee’s work is “sociological gobbledygook” — after which Justice Alito agreed that “gerrymandering is distasteful.,” but the gobbledygook is unmanageable for courts to understand. He pointed out that, the best way to measure electoral maps changed in the last 30 years, and he asked if now is the time to “trust” McHee, when he may find a better way, publish a different paper a year from now.

To that, the answer may be:

1. It’s not trust in McHee’s work, it’s called science.

2. His work is not sociological gobbledygook, it’s statistics.

This isn’t the first time justice’s law degrees didn’t prepare them for complex cases. Unfortunately, they have already weighed in on quite a few “gobbledygook” filled subjects. Cases like Bowman V Monsanto — which has major implications genetics — saw them show a lack of understanding in agricultural science when they decided that Monsanto could patent all the offspring of a seed and use the patent to burden farmers whether they wanted to use it or not. Myriad v AMP was of huge importance from an intellectual property and healthcare standpoint; their decision let many Americans breathe a sigh of relief, as they decided, in a limited way, that human life could not be patented, for now.

We are moving into an era where technological advancements affect more than just science and our lives with the growth of computer technology. Advancements will change laws and politics equally, bursting open what was once constituted IP law as clones and genetic engineering enter reality. We will be forced to dissect democracy, privacy, and economics as measures and technology gets more precise, intrusive, and complex. Perhaps the Supreme Court has such a limited jurisdiction that it will become a silent branch, as conservatives want it to be, watching as issues of importance are left for the executive and legislative branches to hash out.

Thankfully, there are amazing organizations like the APA to explain difficult technical problems to the justices and lawyers like Paul Smith to meet them where they are. But perhaps, the Supreme Court, as the mightiest backstop of our democracy, this unelected and unmeritocratically selected branch, exposes a problem in American Governance. When a ruling on the height of molecular biology reads like “an earnest seventh grader’s book report” and means and medians are confusing, maybe Chief Justice Roberts — it is your educational background.