some extent certainly i think we get great, amazing consumer-products out of that kind of competitive marketplace. but certainly if you look at history of bell labs is a company, an organization that wasn't being with anyone else, you start to wonder, well how did that happen if we get these breakthroughs added that? i mean, we got these breakthroughs because it was a place where there's a rich exchange of ideas and of which exchange of problems that could be solved and needed to be solved. ..

i think the most important take away from me is that notion of balancing the short term high metabolism. that we have now, and that maybe we admire quite a bit with a sort of longer term vision and that can be vital and i wonder if things have gotten out of balance a little bit. and to me that's crucial because the other thing too is that investments in basic research can pay off in ways you can't

imagine. bill gates the other day was saying on wall street journal website that's given the national investment in basic research and bell labs what innovation guinn to with and those endeavors and the basic science can change the world but the economy and create millions of jobs don't pay off quickly but in ways of our amazing. >> can we cross the bear on problems like energy, things that are so forth much in the forefront right now on climate change. are there things that we can keep out of success is at least from bell labs that you could use in attacking some of those?

he's the chief of bell labs alumni and he knows that process better than anyone. i think the reality is the world's different and the sort of larger principles are the most valuable things to learn as opposed to the specific kind of ingredients and innovations there's a time and place but the sort of larger truths of thinking along terms of attacking the problems are essentials for fish and i personally think in the energy and in biotechnology and maybe not in information technology at the moment. >> thanks for taking us back to that time and place and engaging in our own version of timetable to be to travel back to bell labs and the great age of american innovation. fto. [applause]

>> up next book tv present after authors an hour-long program where we invite authors guest host interview authors. >> the book tells the story of a landmark gay rights case lawrence v. texas from the arrest of john lawrence and tyrant garner to justice kennedy's reading of the supreme court decision in 2003. the ruling made same-sex sexual activity legal in all states and territories and paved the way for same-sex marriage laws. >> host: you've written a fine book on the supreme court case

of lawrence versus texas, a book that tells the story from the beginning to the end. let me begin with at the end of why was the case important? >> i would say this is probably one of the most important civil rights decisions or constitutional law the individual decisions from the supreme court over the past 50 years or so and it's the most important decision so far for the rights of gay men and lesbians so this is an opinion that is important to a great many people and i think we will be long remembered in american constitutional history. there was one set of the law that was in effect prior to lawrence and changed all in a big way coming into the case where it was an afterthought 54

off. >> guest: in the cases and the laws across the country the states had band the so-called sodomy which included certain specified sexual acts over many years. but texas had decriminalized much of the old r-ks ex mex offenses in heavily focused on a sex and caramelized sex. they came before the courts but the state courts and federal courts over the years ending with i would result in defeat with advocates versus hardwick in 1986 and that decision had declared that any but the court called the the right to homosexual sodomy was at best facetious but there was no fundamental right to such a thing that there was no right of privacy that extended to protect gay people and their intimacy in their own homes and even as

adults and they are the lowest of the constitutional law stood until lawrence versus texas along than in 2003 and changed that. there was a development happening at the same time it for. the state's one by one or either repealing legislatively or having a return through the judicial action, their own state sodomy laws, so we went from a situation in 1960 where all 50 states had some kind of sodomy law which applied to both heterosexual and a gay sexual the activities arrested in the

home for having sex in violation of these laws. >> host: and you write a very effectively and isn't during those years that the police were in large numbers aggressively going out and arresting people but that as long as laws or on the books, gays and lesbians were branded as criminals under lock and i take it that some of the biggest impact were on things like custody questions, adoption, jobs, employment. in a lot of states you could be branded as a criminal as long as those were on the books. >> guest: they were rarely enforced. we had a very few know in a verifiable instances of enforcement of sodomy law is against private activity between

adults bear no minor is involved our cause i public place is involved. very few examples of enforcement like that did exist but they were few and far between. they were used instead as a justification or pretext for discriminating against gay men and lesbians in every way of life and in fact, the decision itself from 1986 was cited by federal courts and state courts across the country as a reason not to provide any judicial protection to gays and lesbians from discrimination. police departments to ban the hiring of homosexuals on the grounds that these were people that were identified as a criminal class and they shouldn't be interested with enforcing wally

anti-discrimination laws of all kinds or resist on the grounds that we should not model or protect what is essentially a criminal class of people. and in every area of life, the sodomy laws routt so much enforced against sex but were enforced in fact in other ways. >> host: something so when usual about this that the laws were not actually enforced, but they had a powerful impact as long as they were on the look books. lo and behold a laws were enforced in september of 1998 when the police went up and arrested the two men in an apartment in houston for what appears to be a false report. tell us how the case actually got under way.

>> guest: that base of timber 17th, which happens to be constitution day in the united states, these three friends, john lawrence, tyrone garner and robert eubanks or moving furniture around and finished their work for the day and decided to go to a restaurant where they had a few drinks and they went back to john lawrence apartment where the continued to do drinking and watching television and so forth. eubanks and tyrone garner, one of the two defendants in lawrence versus texas decision was himself black while robert eubanks was white three if you banks and garner who got into a kind of fight perhaps involving some jealousy, and you banks announced at one point in the evening that he was going to go get a coke out of a vending

machine which was down on the first floor of the apartment building on which john lawrence lived so he goes from an easy chair in the living room, put on the bottle of vodka that he had been drinking from, goes to a drawer in the kitchen and get change alton and then leaves the apartment to go downstairs. instead of getting a coke, he in fact put that money into a pay phone and he called the harris county sheriff's office which was the police department in charge of that area and he reported to the sheriff's office that there was a black man, referring to his partner fitful with a gun going into side of john lawrence apartment so that one there was john lawrence and tyrone garland in the apartment and possibly another man.

the laws of cause a false report and he was later charged with filing a false report and spend a couple of weeks in jail on a quite serious offense. once the report was made that becomes a high priority call for the sheriff's office as it would for any law enforcement agency. a potentially dangerous situation for citizens it's potentially dangerous situation for any law in force the authorities. in the area they immediately turned around in their cars and headed them into the apartment complex looking for this apartment and this black man who was supposedly going crazy in a weapons disturbance. the first to arrive on the scene and countered robert b. banks of the base of the stairs to john lawrence apartment and asked him where is the man with a gun and he pointed to the second floor the top of some stairs where

there was a landing towards john lawrence's apartment. he was quickly joined by three of their deputies from the sheriff's department and they decided to go up together. and at that point, they go up the stairs and what is called a tactical stack. one behind the other with their guns drawn ready to deal with any weapons disturbance they might find. they arrived at the top of a landing at that point they say they knock on the door and they say at this point this is where the stories diverge, by the way, between john lawrence and tyrone garner and the police on the other. they say they knock on the door and had the effect of opening it up. they looked inside of the apartment, according to them, and they -- the was a light on the inside of the living room. it's a small two-bedroom apartment. >> host: and they presumably said police. >> guest: they said twice

sheriff's department, sheriff's department in a voice loud enough anybody in that apartment to hear. there was no radio or television on it. nobody was talking. they couldn't hear anybody. they couldn't see anybody when they walked in. so they say it's an empty room. and they then began to say well, we are going to search his apartment. the two of them go off to the left, looking into a bedroom to the side, where they ultimately don't find anyone. and then the other two of them, the lead devotee, who had arrived who was white, and another deputy who was black, went towards the back of the apartment where there was a kitchen area. and there they say they saw a man speaking on the telephone right beside the refrigerator and they told him to put his hands up, which he complied, and they checked to make sure he had no weapons, secured him, and it's at that point they say they noticed another bedroom in the back of the department of few

feet away. still, hearing nothing, no voices, no responses, not having seen anybody else, the light is off inside the bedroom but the door is open so they can see from the in the and light of the living room somewhat into the bedroom. so the two officers out of the four, the two officers approached that bedroom door. they have their guns drawn, so they are ready to deal with anything they might encounter. a very dangerous situation for them and for anyone that they encounter. detention is very high. the black police officer arrived first at the door and looks at him and says that he saw john lawrence and tyrone former engaged in some kind of sexual act. he was unsure when i interviewed him later what it was. he believes that they were having oral sex which would violate the texas sodomy law, the homosexual conduct law in

texas, and seeing that act startled him that he lurched back, he jumped back. the officer behind him who had been the first one on the scene sought at that moment that he must have seemed the gunslinger, the person who was threatening people in the apartment with a gun, he got into a crouching position and had his gun pointed straight ahead then maneuvers into the bedroom with the light still on. he said he saw john lawrence and tyrone garner on the bid having anal sex, not having oral sex, so we have a significant difference in what they say they were seeing. both of those acts would have violated the texas sodomy law week. the officers say that they then told john lawrence and tyrone garner to stop what they were doing and told them to stand back from each other, away from each other and they would not

stop according to the officers. with guns pointed out them from a very loud male voices yelling at them inside the bedroom finally one of the officers says he flicked on the life in the bedroom so that everybody could see everybody very clearly now, and he says they still would not stop. and in fact he says john lawrence turned around and looked all right eye at the officer and then looked back and continued but he was doing. for well in excess of a minute, he says, until finally the officers had to literally pry them apart, stop them from violating the texas homosexual conduct law. that is the story the officers killed. they say it was a violation of law and it doesn't matter whether it's inside of a whole or a public place. it was a violation either way that occurred between two people

of the same sex. so then the fed to decisions to make about what to do. one decision was should we go ahead and issue them a citation as you would someone with a traffic ticket for a moving violation. it was a class to speak to misdemeanor publishable by a 200-dollar fine. it's not a jail sentence by itself, it's not something for which you're sentenced to any prison time. when they violate that sort of a minimal criminal law and just as they do when people were speeding. the police officer on the scene decided that he was going to initio john lawrence and tyrone tickets for having engaged in homosexual conduct. part of that we can get into why he might have done that. i have some ideas about that. but the other or not to issue

the tickets and that's what the officers did proceeding to take them down the stairs with neighbors watching. they found him only in his underwear and put them in the patrol cars and to jail or they spend the evening. >> host: did the officer explained why he made the decision to take these men to jail? >> guest: yes. the officers, the lead officer and the others on the scene on the two of them claimed to have actually seen any kind of violation in the law by these men said they simply enforced until law, and that they were violating the homosexual conduct law and it's not their job they said to decide which to enforce. they had to enforce all of them so i asked the officers about but little that.

i asked them when they patrol the streets of paris county in their jurisdiction to the ever come across an opposite sex couple parked in the dark country lane somewhere engaged in sexual activity which is a violation of public lewdness and texas, much more serious offense than the texas, all code and they suggest that happens quite frequently and i said well, what do you do? and one of officers said we make sure nobody is a minor and we make sure it isn't rate and its conceptual and if it is, if there is no minor involved in its effects conceptual, we tell the couple get your clothes back on, you shouldn't be doing this year, go back to your home or find a hotel or something but we don't issue a citation. and i said well then obviously you do have discretion about whether or not to cite people for having sex. was the difference in this case? after all these men were in a

home. they have no where else to go. and he said well, it was a man and a man. but made the difference is we had to gay men here and so, so the reason officers gave is true is the of the power to enforce law if in fact they solve a violation, which i don't. but there's probably several reasons behind it and that is the officers quickly learned these were gay men and there was a cool day errata cut inside the apartment, john lawrence accomplished disgusted tyrone and there was a trigger that went off in their mind triggering a kind of deep-seeded antipathy for homosexuals and that a great deal to do with the decision to cite them and arrest them and then there was the fact that john lawrence was talking back to them. he was calling them storm

troopers and jackbooted thugs and telling them he was going to call his lawyer and the lead officer in this case really didn't appreciate being talked to that with and they were upset because they had been called on a false promise to this apartment and somebody needed to pay for that. >> host: and suppress the reading your book you give the basic facts of what happened in the apartment in how the case went forward that these men were arrested for having sex in their apartment. seems so shocking that you could be arrested in 1998 in your own apartment for something like that. but after reading your book i got the impression in this sense that none of this was true. that there wasn't about, the basic fact that there was sex in this apartment and the lead officer that you report on this

fellow had arrested mothers at school for dropping their kids off at the wrong place in front of the school and taking them to jail so he seemed to have a sort of trigger as far as if he felt insulted putting a person under arrest. so tell us what you've learned after doing a lot of reporting on what may have actually happened here. >> guest: i did speak to three out of the four officers who were there first on the scene that night, and they weren't willing to speak to the end of the lead officer was particularly interesting because he was the one who made the basic decisions and when they are called on the scene he makes the basic decision whether to arrest or whether to take people, people and taken to jail so it was his call. and i had people inside the harris county and the judicial

system tommy miller officer of the force probably under those circumstances would you encounter people get home would actually have sighted them and taken them to jail but he was the one. so in essence the gay civil rights movement was lucky in getting him to arrive first, she was the closest to that apartment at night and arrived first and was there that trusted the decision making authorities. had it in any other officer in this case it might not have happened. but here it's interesting in himself there were plenty of people willing to talk to me including the judge who was the first judge who had jurisdiction over the case and then the officer himself i asked him at one point in the interview subject to a complaint for citizens in any reason in the course of your duties and then he laughed and said why are you

laughing? cheese i have the largest complaint filed in the harris county sheriff's office. so then i started to ask him well, can you tell me about some of those obligations against him and he proceeded to give details of companies that had been filed against him which he said were meritless but nevertheless appeared to have been quite numerous. he was sent to ander management school by the sheriff's office and was taken off the patrol for awhile and sent to work back in the jail which is a terrible demotion for the patrol officer. so he really had an extraordinary record and in the unfortunate for the gay civil rights movement because he was the first to arrive on the scene. >> host: people refer to him as sir. he was accommodating but if they were unpleasant, she took a

different view and i assume he was quite on on a pleasant when the officers burst into his apartment because he didn't know anything about the suppose it man with a gun >> guest: you've got john lawrence and tyrone when the police came in he was sitting on the couch and tyrone was back in the kitchen area visible from the front door at the back of a dining room table as much as 15 feet apart they were not having sex. they never had sex and so the police burst in and start questioning them about who has undone and for them it comes out of nowhere and he reacted quite angrily. he had been drinking a little bit and acknowledged that. so she was engaged in his own form of civil disobedience to read and as i say in an interview about six months before he died, she told me

about what happened and said that the police had told bold faced lies and was very upset about it, and that is a part of what drove him and tyrone garner to challenge the best which they ultimately decided to do after some persuasion effort. >> host: the story gets more interesting as it goes along because it is the case that john lawrence and tyrone former's preference was to say plead not guilty and say this was a totally false report. we were not having sex. the police burst in, got angry and the drag us off to jail for something we didn't do. on the other hand for the gay-rights lawyers i.t. get the

view here is that these laws are still on the books so they made a strategic decision to have courage or persuade tyrone to plead no contest to assume the fact and then unchallengeable. >> guest: that is exactly right. they were taken to jail but light from the appointment and put into orange jumpsuits and put into the jail as anybody would be arrested for public intoxication that might. the next morning they were sent in front of a judge without any representation, and at that point they have to enter an initial please come and the initial please the choice was to plead guilty, no contest or pay no guilty. the haven't talked to any lawyers and of the year the charge and realize for the first time that they actually been charged with having sex with each other. from their perspective it's

their right that they were not actually doing that. this was as john lawrence said a bold face like, it's a fabrication. they were stunned by this and so they pledged not guilty. we are not guilty of this offense and they didn't have any larger civil rights goals in mind. they hadn't been involved in any day civil rights efforts not contributed to organizations. they were people leaving their lives, and their inclination was to fight its. maybe they would end up paying fines that they had a sense that in justice had been done to them because they had been falsely charged. they did meet with attorneys, local attorneys. and how this case got into the hands of those attorneys is an interesting story which we can talk about if you would like gannett -- in a bit but they had a meeting with the attorneys and had a meeting with the national

gay rights groups and became involved and they were experts in these areas. and they said look, here are three options. you can plead not guilty and, you know, these officers can be put on the stand and we can ask them to recount this detail that they say have been the and we will see what happens. my guess is they would have been acquitted of that had happened. or you can plead no contest to plead not guilty and if there is not much of a difference as it turns out between not guilty and no contest. so they pled no contest meaning the the only fact that ever made their way up through the courts was that facts alleged by the police, the complaint was filed by the lead deputy that might that said we entered the apartment and saw them engaged in this violation of the texas law. there was never tried or witnesses or any cross-examination or anything like except with the states haven't and say and never the

less the irs is unconstitutional because it violates the rights to arrest them under those circumstances to explain the importance of the case was. it wasn't just about them that this sort of thing could happen again. you had it happen in the past and the laws have a larger affect the we described earlier on the millions of gay americans , and that meeting occurred in mid october of 1998 which you might remember about the time messrs. sheppard was left to die on offense in wyoming and a really captured the nation. all of this is going on at the same time, and they were persuaded, john lawrence and tyrone were persuaded that there

was a larger cross than just their own innocence and that the police shouldn't be allowed to do this in the future. >> host: it's a big decision but they were sort of taking one for the team. they were sort of admitting something that they say did not have been pleading to something they didn't do as a way to getting a case to challenge the law. is that correct? >> it is the case in a lot of further terrorist actions. this case would have gone away from the prosecution. they wouldn't have pressed the case but in the and the texas prosecutors and the texas courts were not willing to have this case go away. >> host: the gay-rights movement in this case is lucky or blessed one might say. it was also lucky and fortunate in that it had a set of prosecutors and the district attorney's and the judges

ultimately who didn't dismiss the prosecutors. the harris county attorney is elected, and he elected partisan person and the county itself is quite conservative and has very traditional views on social issues and once the matter got into the newspapers the men had been arrested and there were going to challenge the constitutionality of the texas law it became very politically difficult for the harris county to back off from the prosecution and in fact they were quoted in the paper saying this sort of equivocating on the case by saying this might be about all but we don't have any choice about what the law to enforce and the best way to get a case of the books is to enforce it so that is exactly what they ended

up doing. one of the prosecutors in the lower courts in texas was herself a closet lesbian at a time and she could have entered and dismissed the prosecution and asked the judge to dismiss it and didn't do so. she was required to proceed and she didn't have any discretion in the matter. >> host: in the end of the state was going to defendable all. why don't we take a quick break?

>> host: so the decision to charge john lawrence, tyrone garner and the state's willingness to defend their lowercase laws vlore old records can you tell us a little bit about the history of these laws? on the one hand it seems like the had a free long history but they also have a recent history in that the 1970's they were much more targeted at gay and lesbians. >> guest: the sodomy laws in general prohibited at one point all non-merrill nonpro created sexual acts to go back hundreds of years in the west and go back to england and the colony's and every state and in fact every state had some version of paul as the 1960.

so in a sense as the supreme court said these were of ancient origin i suppose you could call that but they did not have a very deep or sophisticated understanding of the history of the law. they were not laws that were targeted on their face, only on kc-x. the targeted both heterosexual and homosexual non-procreative sexual acts like oral sex and in every state until the 60's and 70's that's precisely the way they were written. in the mid-1950s, a very influential legal authority scholar in both the united states and england suggested that a number of archaic law use be removed and sodomy laws were among those. that began a process by which the states began repealing the own state sodomy laws.

and that process proceeded through legislatures and state courts for a period of four decades, more than four decades. at the same time some states held on to their lawyers and others like texas got rid of all the rest of their archaic wally but kept the sodomy law and narrowed it and specified so that it applied only it was called deviate sexual intercourse as texas caulkett it only applied to the same-sex sexual acts, homosexual sex, and the same time texas did that in 1973 narrowing the definition of just targeting gay people. it to decriminalized things like adultery which had been criminal in texas before. it decriminalized an old wall that was the so-called seduction on the promise of marriage.

a couple of others and decriminalized bestiality. so, as of 1973 in texas, you could legally have sex with some of the species but not with another person to me were committed and in love if that person was of the same sex. that is the remarkable message that texas was sending and trying to defend that on the traditional morality. i had never heard of traditional morality that allows interspecies sexual acts and of culturist sexual acts and allows heterosexual sodomy but not homosexual sodomy. so it was a very selective defense. >> host: it appeared to be a reaction on the gay rights movement that the gay rights movement was just getting under way in houston and texas and to some degree this was a backlash. >> guest: in the 1960's with

of the women's rights movement and the sexual revolution in the united states in general there was a backlash, and the gay rights movement began in modern phase of the gay-rights movement began in earnest in the 1960's, and especially 1969 on the stone wall of new york city where there was a backlash against the police that were shutting down the bars and that spread across the country including in texas city where the groups began to form but these were early on in the 70's, so the laws like the texas sodomy were the intent to hold onto as much of that traditional morality as the state thought it could hold on to but it certainly doesn't give any ground to gays and lesbians. and in fact there was debate about whether the law episode

subject game into punishment in prison and some texas legislators resisted that because they said that punishing the men in prison was not a punishment that they would actually enjoy being in an all male environment. this is the kind of thing the texas legislators were saying about the people. so the gay rights movement did get going and it got going in the number of cities across texas including in houston and it had some early successes in the 70's and the early 80's and then i got slammed down in a referendum on a very narrow civil rights ordinance protecting gay city employees in houston and in january of 1985 that itself was an exit of the backlash against gay rights so there was a great deal of resistance in texas and every year the legislature refused to repeal law even though it was

asked to do so in the texas courts turned away in a challenge to the law by saying they would arrest. they were persecuted how did it move up and how did the case moved up through the courts? >> the story begins from the moment they are arrested and joseph quinn the deputy in this case files the charges eaglen to the justice of the peace corps because it is the court with jurisdiction over these really minor criminal offenses class c misdemeanor and there wasn't obvious at that moment that the case would ever make its we have to the supreme court because there is no sodomy law alert telling the activists somebody had jurisdiction somewhere in the county has been arrested. so it could have real easily and

it right there and they might have paid the fine after they got over their anger, or they might have paid defense attorney who didn't care about any gay rights causes but wanted to collect the fee might have negotiated something smaller for them. the reason i got in the hands of the gay rights advocates is that the judge in who the court plan that had a clerk who was himself a closeted gay man and he sold this charge, in the next morning after these men had been arrested and he saw the officer that had done it and knew that immediately something was wrong. this officer was well known in the jurisdiction, and he saw the charge which he didn't even know was an offense in texas and in fact when he tried to look up the code and enter it into the administrative system he didn't have the code there was no code

unlike for most of the offenses they found he had to go and look about and i think they have had to make one up to allow it to enter. >> host: i was surprised there was such a criminal charge in the conduct and i take it that even people that work in the court system -- >> guest: had never heard. no 1i spoke to in the case, except for one activist in houston had ever heard of anybody being arrested on this kind of charge, so it was quite unusual. >> host: he told his partner at that point was a closeted deputy in the sheriff's office, the lead arrest officer you begin to see connections all over this case, the small and judicial world. his partner was a closet officials surgeon and the sheriff's office pulled his partner about this and they said they couldn't believe that the had no inkling that this was a matter of constitutional

dimension. so that might come the night after these men had been arrested they're talking about it and go to their weekly trip down to the gay bar in the middle of houston where they are gossiping with the bartender and told them guess what we saw, somebody was arrested for sodomy last night. the bartender happened to be not just a person was expert in the pouring of vodka martinis but was also a gay-rights activist so once he heard of this he immediately thought this was the case waiting in the generations for. he wasn't an attorney but he had the potential given the fact they were arrested in their home again pursuing the case and courses and successfully. >> host: in the texas court?

>> guest: in a texas court initially on successfully. they went in front of the justice of the peace about two months after the arrest occurred in november of 1998. the justice of the peace had no power to strike down the texas sodomy moly, so he finds them i think $100 each. they went back and said holy cow, $100, that's not enough to be able to appeal. they thought they were advised. you had to be fined more than $100 to be able to be eligible to appeal your conviction so they ended up going back to the judge and asking for a higher fine on their client. >> host: >> guest: we would like to be charged a higher fine and the prosecutor agreed to hire find so they go back to the judge and he is somewhat surprised to hear the defense counsel asking for

more punishment. but he granted the higher punishment is as that of another $20 or so each and the case proceeded through to the county criminal court, where, again, the judge didn't have much power to return the texas sar me moly. then he goes to the intermediate appeals court in texas which is a couple steps below the supreme court of the united states. and then they confronted with a partisan elected republican judges from the very conservative areas and they were warned you don't have a chance in front of these judges. you will never win. you will have a rough time and/or demint and it turns out they were quite surprised. it turns out that the two of the judges at the end of the day ended up being persuaded by their argument that this was a violation in the case of the texas equal rights amendment which prohibited discrimination

on the basis of sex and the said bill law is a basis of sex because whether or not you are punished depends on the sec's of the partner that you are intimate with to be very straightforward case and the in the upper ruling that way with tremendous political backlash in the republican party in texas. the state convention was held a very short time after the decision, and the state convention issued a resolution revoking them and calling on them to reverse their decision. so, the full appeals court in texas took up the issue and did reverse them pretty quickly. >> host: sevi upheld the state law as is. did the texas supreme court to hear the case after that or just refuse to hear the appeal? >> guest: in texas they are the equivalent of two supreme court. one for civil matters and one for criminal matters.

so in texas the supreme court handled the civil matters and the court of criminal appeals handles the highest court for criminal matters so they went to the court of criminal appeals which sat on the case for a year saying nothing and not even whether it was going to consider the issue or order any briefs to be filed or oral arguments and after that year was over without any explanation so that your past and once that decision was made, the next step was the united states supreme court. hurston and that is where he had been focused from the beginning. >> guest: he had a sense that this case was going to go as high as the united states supreme court. interestingly if they had prevailed among the judges who ruled for them in the texas court they wouldn't have gotten to the supreme court in this

case. >> host: all along the way, nonetheless the supreme court justices were very aware of this issue. they knew they had been much criticized over the years since then. he wanted to get another case before the court. they filed this superstition and somewhere was it too falls into, 2003 the court granted that position? >> guest: in the fall of 2002 the supreme court granted the petition to hear the case. >> host: a legal question presented on that there were two issues, one was the sort of privacy claim. the other was the equal protection claim that gays and lesbians are being denied for their exact reason you stated, they were clearly discriminatory

and the first claim was the lardy of privacy issue. i think a lot of dust cover the court, and i am in that category, but the likelihood is that the court would take up the case, focus on the equal protection, and instead the focus on liberty and privacy. tell us what is the significance of that and why that was -- did you expect that would have been the way they handled the case? >> guest: i didn't expect that they would take up the liberty and privacy claim as you put. i think that most of the attorney stop that if the court were going to overturn the texas sodomy law it would be on the ground vehicle protection to read the basic difference between the two arguments is the privacy or the liberty of the fundamental right argument as the government has no place in your bedroom and can't tell adults what to do with their own

intimacy. but the equal protection argument says if the government decides to come in and start telling people what to do in their bedroom it has to do with the same for everybody. it can't just select out a small group of people, 3% of the population and told them they can't do with a 97% can do. based on the court decided this just 17 years before on well liberty and privacy ground and said at the time that those arguments were at best facetious against the litigants in that case, there was a great sense that the court went rule on those grounds would go to the other grounds. now, that's important because of the court had just decided the case on equal protection grounds that it would be issuing a decision in which yes it struck down the texas sodomy law added about the decision to stand, which had done so much damage

until all and second would be saying to the states you can have a sodomy law we you just have to apply that sodomy law to heterosexual and homosexual sodomy and while that might appear equal in some sense everybody associated sodomy with homosexuals in the popular mind this was the kind of thing homosexuals do. people didn't understand that it applied to what many heterosexuals do as well in the bedroom, so it would have been in some ways i think a disappointment also another reason it might have been significant in itself. what joined these arguments though this the liberty and privacy and equal protection argument on the other hand is the basic narrative that the land of the legal attorneys sketched out for the case. they wanted to make a mainstream presentation to use their words.

they wanted to the court that there was a connection between the intimate lives of gay and lesbian and the establishment of the relationships and building families. that's something the supreme court didn't see that in '86 that they did see it in 2003 and the frame of the case in precisely that way. they wanted to show the court that in striking down the texas sodomy law they wouldn't be leading the nation that they would be following the nation. most have left these far behind them there were only 13 states that still cut them and they were almost entirely on and first against private sexual let the. they didn't want to scare the court for the possibility that was leading the nation into true that territory. it could be saved and strike down but texas, sexual conduct law so that was the narrative and was extremely effective and it shows throughout justice can be's opinion in his references

to the importance of sex and intimacy and adults lives in so far as it helps to build relationships. >> host: i can't think of another area of the law or the public mind has changed so much and 20 years. the court was different in 2003 than it was in 1986. but the whole country was. i remember the time of the 1986 decision even than people thought i was a little bit extreme the court would have upheld the law in 86 but as you said, by 2003, it seemed like something from another event that could exist that persons could be arrested and taken to jail for conducting their own apartment at front-end no one were hurt no one. so it did seem like the whole country had changed.

but as you know, when the court decided that case, there was still a sharp division that and that fixing the justices to strike down the texas law and there were three dissenters. tell us about the divide on the court on that. >> guest: first you are quite right to know there was a shift in the court and in the country between 1986 and in 2003. 1986 the justice actually said to the clerk i don't know any gay people, never met any gay people and it turned out the clerk he was speaking to was himself a closeted gay man and in 2003 when paul smith, the lawyer was about to get up and deliver his oral argument to the court someone whispered in his ear justice o'connor just send a baby shower gift to a clerk and her lesbian partner. there are two moments that encapsulates the sweeping change that occurred in the country in the generation those to moments

of those examples. but there was still a sharp divide on the court. the opinions or fractured in some sense. justice kennedy rules on the grounds of liberty and privacy. justice o'connor, who had been the majority and rejected the privacy and liberty argument rules on equal protection grounds which is what many people thought the court would do in this case so she provides the sixth vote. then you've got three votes in the minority justice scalia, chief justice rehnquist and justice thomas. justice scalia rights and announces from the bench if you meant to send in which he says basically that court has taken sides in the culture war and it isn't behaving in a very fashion that can be tied to the constitution and any way and this would mean a slippery slope to things like bigamy and

widespread of semidey and he said a marriage. and then justice thomas writes for himself saying but while he believes they are silly to, to use his expression, quoting from an earlier justice, and if she were a texas legislator he would vote to repeal, he was a judge and not a legislator and there's nothing in the constitution he says protecting the right of privacy. so, he provides a third vote. >> host: of the kennedy scalia division on these is so interesting because ronald reagan appointees from the late 1980's, both of them catholics born in the 1930's had some similar background, but they agree on a lot of things on the criminal cases, corporate cases and on a sort of cultural war

cases, justice kennedy always seems very much of a california republican, very different as a completely different instinct then justice scalia. justice scalia -- i remember reading those opinions and it was just such a start to fight because kennedy spoke about the importance of teaching respect and dignity today and lesbians that their relationships deserved the same respect and dignity as other relationships it's such a sympathetic portrayal and so much in line with as you said the notion of the importance of relationships with the couples. but it's a case about relationships. and after he finished then justice scalia and cut through the air with that very strong dissent.