It was difficult during oral argument in March 2003 to discern how the justices would vote,
but Hohengarten was optimistic. When Justice Kennedy began reading the decision months later,
Hohengarten knew the gamble had paid off. “Bowers was not correct when it was
decided, and it is not correct today,” Kennedy stated. “As the Constitution endures,
persons in every generation can invoke its principles in their own search for greater freedom.”
The Bowers ruling, Kennedy said, had incorrectly focused on the sexual act,
finding that it does not deserve constitutional protection. In Lawrence, by
contrast, Kennedy led the Court to focus on the human relationship that the act signified
and the liberty and privacy interests involved. As Kennedy read aloud from his opinion,
its broad sweep became evident to the many civil and gay rights lawyers in the Court
that day. Hohengarten was not the only one in tears.
Since Lawrence, Hohengarten has become immersed in business cases, including
one argued by colleague Donald Verrilli that tests whether, by declaring bankruptcy,
a company can escape its obligation to pay for workers’ compensation insurance.
“It was fun to learn about bankruptcy and employee benefits, to see how the laws
fit together, and then try to explain that to the Court,” he says.
“In many ways it is the polar opposite of Lawrence v. Texas—but
very satisfying nonetheless.”
And in many ways, that sentiment—about how varied life can be—is
the lesson Hohengarten has taken away from his lifelong passion for understanding
complexities that began at Reed.
For that reason, when asked what’s next for him, Hohengarten is momentarily
at a loss. “Continuing my practice at Jenner & Block for the indefinite
future is what I’d say,” he responds. “I’m pretty lucky
in where I’ve ended up professionally. I’m not looking for anything
Tony Mauro is Supreme Court correspondent for American
Lawyer Media in Washington, D.C.