With respect to the provision allowing teachers to be fired for engaging in public homosexual activity, the Court rejected due process and equal protection challenges.

"",[7] and the law regulated "pure speech"[8] It held that "[t]he First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time.

[9] It used the example of a teacher who went before the Oklahoma legislature or appeared on television to urge the repeal of the Oklahoma anti-sodomy statute would be "advocating," "promoting," and "encouraging" homosexual sodomy and creating a substantial risk that his or her speech would come to the attention of school children or school employees if he or she said, "I think it is psychologically damaging for people with homosexual desires to suppress those desires.

[10] In dealing with the provision that a teacher had to be found unfit before public homosexual conduct can be a basis for termination, it noted that "many adverse effects are not material and substantial disruptions.

An adverse effect is apparently not even a prerequisite to a finding of unfitness"[11] Judge Barrett dissented, arguing that "[s]odomy is malum in se; i.e., immoral and corruptible in its nature without regard to the fact of its being noticed or punished by the law of the state",[12] and that "[a]ny teacher who advocates, solicits, encourages or promotes the practice of sodomy" in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees "is in fact and in truth inciting school children to participate in the abominable and detestable crime against nature.

In oral argument, Justice William Rehnquist noted that the statute had "never been applied to a single living soul", and Tribe countered that the law was a "chilling" and "Draconian" violation of speech, and the Court may reach the merits.