with many back-and-forth -- many back-and-forth letters. all of meigs' letters to crawford are pretty much preserved. there's only a couple from crawford and doing his best to make meigs happy and meigs really likes crawford so was telling crawford all about his troubles with other american artists, you know, giving him all kinds of trouble for having foreigners working on this stuff. and he's telling them all the stuff in crawford, you know, it's sitting in rome trying to figure out what he is saying. >> what i am wondering is how much time is involved? because meigs would have to get his message to his ship someplace and then the ship took how long to cross the atlantic?

>> about seven days. >> when she reached the delete took a while before the reach walter? >> like i say, the whole process took about a year and a half. i think each exchange -- the shortest time between letters -- [inaudible] at that time. and crawford had something else to do for if he had to make another model, it would be longer before he sent another letter back. ..

because the design is the same, and basically washington, d.c. has been filling in the blanks ever since. so, ground was broken in early to mid 79 these. congress moved the capitol in 1800, moved to d.c. in 1800. at that time the senate was built, the senate was built there was nothing but a big hole where the rotunda of would be at the house looked like a big dutch oven. i think it was actually called the dutch oven. it was a permanent brick

structure that you could just imagine what was like in july and then there was a walkway that went from the house to the senate. so that was 1800. in 1814 the british torched the whole thing, and then it was benjamin latrobe after the war of 1812 that built in the capitol and produced this. by 1825 this was done. a number -- it was shortly after that jackson took the side and said thank you very much and good wine and nothing happened

except piecemeal changes in the period we talked about here. thank you very much. [applause] to up next, booktv presents afterwards mack, an hourlong program where we invite a guest hosts to interview authors. this week dale carpenter discusses his book flagrant conduct with a lead times supreme court reporter david savage. the book tells the story of the landmark gay rights case lawrence v. texas from the arrest of john lawrence and tyrone 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 to pave the wave for

the same sex manage law. >> dale carpenter, you've written a fine book on the supreme court case warrants versus texas, a book that sort of tells the story from the beginning to the end. let me give you a big picture question at the end. why was the of lawrence case important? >> i would say this is probably one of the most important civil rights decisions or constitutional law in the delete key decisions in the past 50 years or so. and it's the most important decisions 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 america. >> host: tell me why. there was one single wall that was in effect prior to lawrence and it changed the lot in a big way. tell me a little bit about heading into the case where it

was before and where it was after. in cases and laws around 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 archaic offenses and had focused on the sec's, criminalize to be a sex. the fall came before the courts over the years ending with a resounding defeat for the gay civil rights advocates and a supreme court decision called barras versus hardwick in 1986 and that decision had declared that any with the court called right to homosexual sodomy was at best facetious.

there was no fundamental right to such a thing. there was no right of privacy extended to protect saudi people and their intimacy even in their own homes and even as adults. they're the law stood, the constitutional wall stood until lawrence v. texas came along in 2003 and changed that. there was a development happening at the same time that the state's one by one were either repealing legislatively or having overturned through judicial action their own state sodomy law, so we went from the situation of 1960 where all 50 states had some kind of sodomy law that applied to homosexuals and gay sexual activity by 1986 about half the states still having such to 2003 when florence is decided and still had 13 states with such so they

were very much on their way out of the constitutional doctrine still holding in states like texas for resisting, revealing, and the courts wouldn't overturn them until someone was actually arrested in the home for allegedly having sex in violation of law. >> host: you write very effectively it wasn't that during those years the police were in large numbers aggressively going up and arresting people but that as long as those laws were on the books, gay and lesbians were sort of branded as criminals under the law, and i take it that some of the biggest impact of was some things like the custody questions, adoptions, jobs, employment come in a whole lot of states you could be sort of branded as a criminal as long as the walls were on the books.

>> guest: they were rarely enforced. in fact, we had a very few known and verifiable instances of sodomy law reason private activity between adults where no minor is involved with a cause a public place involved. very few examples of enforcement like that they did exist but they were few and far between as a pretext for discriminating against gay men and lesbians in every area of life and in fact bowers versus hardwick decision as of 1986 was cited these were people who were identified as a criminal class and therefore should not be entrusted with

enforcing law gave people could be and were banned from being teachers and public schools on the grounds that they were modeling, will be for for students, and gay parents lost custody of their children or had their visitation rights restricted. anti-discrimination laws of all kind were resisted on the grounds that you should not model or protect what is essentially a criminal class of people in every area of life the sodomy law is not enforced against sex but were in fact in other ways. >> host: what was so unusual about this is the of the laws were not actually enforced, but they had a powerful impact as long as they were on the books. then flow and behold the laws were forced in september of 98 when the police went out and arrest the two men in an

apartment in houston for what appears to be a false report. a false report that several levels. tell us how the case got under way then. >> guest: that date of september 17th, 1998, which happens to be constitution day in the united states, these three friends, john lawrence, tyrone garner and robert he banks or to moving furniture around. they finished their work for the day where they had a few drinks and connective john lawrence apartment where they continued to do some drinking and watching television and so forth. eubanks and tyrone garner, one of the two defendants in lawrence of the texas decision. eubanks and garner got into a kind of fight perhaps involving

some jealousy and he announce 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 in which john lawrence lived so he gets up from the easy chair in the living room, puts on the bottle of vodka that he had been drinking from, goes to explore in the kitchen, gets the change out and leaves the apartment to go downstairs but instead of getting a coke he in fact put that money into a pay phone and called the harris county sheriff's office which was the police department in charge of that area in which john lawrence left, and he reported to the sheriff's office that there was a black man, referring to his partner, tyrone, going crazy with a gun inside of john lawrence apartment. so at that moment there was john

lawrence and tyrone garner back in the apartment and possibly another man and robert eubanks is on the first floor making this call to the sheriff's department. that was of course a false report and he was later charged with filing a false report and spend a couple of weeks in jail, so i quite serious offense. once the report was made, it becomes a high priority call from the sheriff's office for any law enforcement agency a dangerous situation for citizens and it's a potentially dangerous situation for any law enforcement authorities. so few sheriff's deputies who were patrolling the area immediately turned around their cars and headed them to the apartment complex looking for this apartment in this black man who was supposedly going crazy any weapons disturbance. the first arrived on the scene and countered robert eubanks at the stairs of john eubanks apartment, and asked him where

is the man with a gun and he pointed out to the second floor at the top of some stairs where there was a landing towards john lawrence apartment. he was quickly joined by three other deputies from the sheriff's department and they decided to go up to the other. they dealt to stairs and what is called a tactical stack. one behind their other with their guns drawn and ready to deal with any weapons disturbance that they might find. the right of the top of the landing and 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 john garner and have the effect of opening up. they look inside the apartment and according to them and there

was a light on the side of the living room, a small two-bedroom apartment. it's loud enough for anybody inside the apartment to fear. there was no radio, no television, nobody was talking. they couldn't hear anybody or see anybody when they looked in and they say it's an empty room and they go off into the left looking in the bedroom side where they ultimately don't find anyone who get in the other two, the lead deputy 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 told them to put his hands up which he implied with and they checked to make sure he had no weapons

come secured him, and it's at that point they say that they noticed another bedroom in the back of the apartment. still, you're nothing, no voices or responses, not seeing anybody else, the light is off inside the bedroom at the door is open so they can see from the ambient light of the living room somewhat into the bedroom of. so these 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 anybody that they encounter and the tension is very high. the black police officer arrives first at the door - locks in and says she saw john lawrence and tyrone garner engaged in some kind of sexual act. he wasn't sure when i interviewed him leader what it

was. he believes they were having oral sex which would violate the texas sodomy law, the homosexual conduct law in texas. that startled him that she lurched back and he jumped back into the officer behind him who had been first on the scene fought at that moment that he must have seen the gunslinger, the person who was threatening people in the apartment with a gun so he got into a crouching position and with his gun straight ahead she maneuvers into the bedroom with the light still on. he says he saw john lawrence and tyrone garner on the bed having anal sex, not having oral sex, as we have a significant difference in what they say they were seeing. those acts would have violated the texas sodomy law. 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 wouldn't stop according to the officers. with guns pointed at them very proud male voices yelling at them inside of the bedroom. finally, one of the officers says he flipped on the light in the bedroom so everybody could see to read everybody heard clearly now and he says they would still not stop and in fact he says john lawrence turned around and looked at the officer and then looked back and continue what he was doing. for well in excess of a minute he says until finally the officers had to literally pry them apart to stop them violating the texas, sexual conduct law. that's the story of officers tell. they say there was a violation of the texas law and it doesn't

matter whether it occurred inside of the home or republic place, it was a violation either place if it is between two people of the same sex. so, then the had to decisions to make about what to do. one decision was should we go ahead and issue them a citation as you would someone a traffic ticket for a moving violation. as a class c misdemeanor punishable by a $200 fine. it isn't a j-lo offense by itself for which you are sentenced to any prison time, and the police officers have discretion simply to issue a warning when they violate that sort of minimal criminal law just as they do when people are speeding. but the lead officer on the scene designed he was quick to issue john lawrence and tyrone garner tickets for having engaged in homosexual conduct.

part of that we can get into she might have done that but the other decision that he made was not simply to issue the tickets but actually to take these men to jail and that is what the officers did, proceeding to take finisterre's with neighbors watching, john lawrence only in his underwear, put them in the patrol cars and take them to jail or they spend the evening. pos to the officer explained why he made the decision to take these men to jail? >> guest: yes. officers, the lead officer and the other, only two of them claim to actually have seen any kind of violation of the law said they simply enforce the law that these men were violating the homosexual conduct law and it's not their job they said to decide which to enforce the have

to enforce all of them. so i asked the officers about that a little that, and i asked them for example when they patrol the streets of harris county in their jurisdiction do they ever come across an opposite sex couple parked in a dark country lane somewhere engaged in sexually activity which is a violation of public lewdness, much more serious offense by the way under the texas criminal code and they said yes, that happens quite frequently. i said well, what do you do? one of the officers said we make sure nobody is a minor and it's not a rape, that it's consentual, and if it is, if there is no minor involved and if it's consentual we told the couple get your clothes back on, you shouldn't be doing that here, go back to your home or find a hotel or something but we don't issue a citation. i said 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 assuming they were having sex they had nowhere else to go. he said well it was a man and a man could really made the difference is the we had to be gay men. so the reason the officers gave is true is that the power to enforce full if they saw a violation which i doubt. but there's probably a reason for several reasons behind and that is that they quickly learned there was a day erotica inside the apartment of john lawrence had printed this in the interviews i conducted for the book and there was a trigger that went off in their mind, triggering a kind of deep-seeded antipathy for homosexuals and i think that had a great deal to do with the decision to cite

them and arrest them and then there was the fact that john lawrence bluestocking back to them. he was calling them a storm troopers and thugs and telling them he was going to call his lawyer who commanded the lead officer in the case really didn't appreciate being talked to that way, and they think they were upset because they had been called on a false premise, and somebody needed to pay for that. >> host: i was surprised and reading your book you gave the basic facts of what happened in the apartment in a sort of how the case went forward that these men were arrested for having sex in their apartment. it seems sort of 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 the sense that none of this was true, that there isn't about, the basic

fact that there was no sex in this apartment, and the officer you did a very fine job reporting on they had arrested mothers at school for dropping their kids off the wrong place in front of the school and taking them to jail so he seemed to have a trigger as far as if he felt insulted putting a person under arrest. tell us what you learned after doing a lot of reporting on what may have actually happened here. >> i did speak to three out of the four officers that were there first on the scene that night and day wouldn't speak to me into the lead officer was in particular very interesting because he was the one that made the basic decision, he was the prayer the unit as they are called on the scene. he makes the decision to arrest and take people and site people and take them to jail.

so it was his call. yet people inside of the harris county district attorney's office and the judicial system in harris county tell me that no other officer on the force probably under those circumstances where you encounter people in a home would actually have sighted them and have taken them to jail. but he was the one. so, in a sense like a civil rights movement was lucky in getting him to arrive first that he was the closest to the department would turn that light and trusted the decision making authorities. had it been any other officer in the case it might not have happened. but he was interesting in himself as you point out. there were plenty of people willing to talk to me in putting a 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 have you ever

been subject to a complete for a citizen for any reason in the course of your duties and he laughed. i said why are you laughing? she said i have the largest complaint filed in the entire harris county sheriff's office. so then i started to ask him well, can you tell me about some of those allegations against you? and he proceeded to regale me with tales 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, he was taken off patrol for a while and sent back into the jail which is a terrible thing demotion for a patrol officer. so he really had an extraordinary record, and as i say it may have been fortune for the gay civil rights movement he was the first to arrive on the

scene. >> host: people say they refer to him as sir and she was accommodating, but if they were unpleasant she took a different view and i assume john lawrence was quite unpleasant when this these officers burst into his apartment because he didn't know anything about what the suppose it men with the gun. some accuse john lawrence and tyrone garner where the police came in and he was sitting on the couch, and tyrone was back in the kitchen area which was visible from the front door and 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 a gun. and for them that comes of nowhere. she reacted quite angrily. he had been drinking and he acknowledged that. so, she was engaged in his own

form of civil disobedience. and as i say i interviewed about six months before he died he told me what had happened and said that the police told bold faced lies about these men and that as part of what drove him and i think tyrone garner, it's part of what drove them to challenge the arrest, 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 isn't that john lawrence and tyrone garner's preference was to plead not guilty and say this was a totally false report. we were not having sex. the policemen burst in and got angry at us and dragged us off to jail for something we didn't

do. on the other hand, for the gay-rights lawyers, i.t. get the view was the aldrich here is that bill wallace still on the books so they made the strategic decision to have the for -- what, encourage or persuade lawrence and tyrone garner to plead no contest to assume the facts of the police said were true and then challenged law. >> guest: that is exactly right. john lawrence and tyrone garner were taken to jail that night from the apartment and they were put into the orange jumpsuits and put into the jail as anybody would be, somebody arrested for public intoxication that might. the next morning they are sent in front of the judge without any representation and at that point they have to enter an initial complete and utter initial plebeian what to plead no contest or not guilty and at this point they haven't talked

to any lawyers and hear the charge and realize for the first time they've actually been charged with having sex with each other. from their perspective of the you're right that they were not actually doing that, this was as john warden said a bold faced lie and they were stunned by this savitt would not guilty. we are not guilty of this offense. and they didn't haven't been settled its skills in mind. the haven't been involved in any civil rights efforts, not contributed to organizations, the richest people leaving their lives and their inclination was to fight it. maybe they would end up paying fines but they had the sense that an injustice had been done to them because the kid and falsely charged. they did meet with attorneys, local attorneys and how this case got into the hands of those attorneys is a mass of an interesting story which we can talk about if you would like an

addict. but they did have a meeting with the attorneys involved and ultimately the gay-rights group became involved and they were expert in the areas and they said clich kuran the options. you can plead not guilty and these officers can be put on the stand and we can ask them to recount the tale they say happened and we will see what happens. my guess is they would have been equated if that had happened to the door you can plead no contest or not guilty and there's not much of a difference it turns out between not guilty and no contest so they put no contest mean the only fact that ever made their way up through the courts was the facts alleged by the police bomb. the complaint filed by the deputy that might that said we entered the apartment and saw and engaged in the violation of

the texas law. there was never a trial, there were no witnesses, there was never any cross-examination or anything like that. you accept what the state says happened and say if everything the same is true, nevertheless the rest is unconstitutional because it violates the rights to arrest them under those circumstances and in limiting the head with full lawyers to explain what's important in the case. wasn't just about them that this sort of thing could happen again. it had happened in the past, and the had a larger effect that we described earlier with millions of gay americans want in that meeting occurred in mid october of 1998 which was he may remember about the time when was left to die on offense emolument

and captured the nation. all of this is going on at the same time and they were persuaded, john lawrence and tyrone garner were persuaded there was a larger costume here into the police shouldn't be allowed to do this in the future. >> host: it's a decision they were taking for the team because they were admitting to something that the said did not happen to recently pleading guilty to something that they did not do as a way to get a case to challenge bill law. is that right? now is the case in a lot of other jurisdictions the case would have gone away from the prosecution they wouldn't have pressed the case but to get that in the end the texas prosecutors and the texas courts or not going to have this case go away. >> guest: the gay-rights movement in this case was sort of lock your blessed one might say and the police officer who arrives first in the decision it

was also lucky fortunate in that it had a set of prosecutors in the district attorneys and then judges who would not dismiss the prosecution. i think the harris county district attorney's office was packed into a political corner in this case. the harris county district attorney is elected and the county itself is quite conservative and his very traditional social views on social issues and once this matter got into the newspapers that these men had been arrested and they were going to challenge the constitutionality of the texas law it became very politically difficult for the harris county district attorney's office to back off and in fact they were quoted in the papers ordered a convicted in the case that this might not be about law, and the best way

to get a bad law off the books is to enforce it so that is exactly what they ended up doing. it does turn now to that one of the early prosecutors and one of the lower courts in texas was herself a closeted lesbian of the time, and she didn't -- she could have dismissed the prosecution or ask the judge to dismiss it and she did not do so. she said she was required to allow the case to proceed and that she didn't have any discretion. >> host: in the end of the state was going to defend the law. why don't we take a break. >> to

>> host: so the decision to charge john lawrence and tyrone garner and the state's willingness to defend the law that seemed vulnerable and to set the case on the road up through the courts could you tell us a little bit about the history of these? on the one hand it seems like the of a very long history but also took from reading your book that they had in some sense a reading history. that in the 1970's they were much more targeted at gays and lesbians. >> guest: that is exactly right. the sodomy law in general, the speed of the prohibited at one point all non-marital bond procreative sexual acts go back hundreds and hundreds of years and the last go back to england

in the colonies and every state and in fact every state had some version of sodomy law in 1960. these were laws of ancient origin i suppose you could call it. but the supreme court in 1986 did not have a jury before sophisticated understanding of the history of the law. they were not laws that were targeted on their face, only at the sex. the targeted heterosexual and homosexual on the procreative sexual acts like oral sex. in every state until the late 1960's and early 1970's, that is precisely the way they were written. in the mid 1950's, avery influential legal authority scholar in both the united states and england suggested that a number of archaic sex

laws be removed and that began a process by which the states began repealing their own state sodomy laws, and the process proceeded through legislatures and state courts for the period or than four decades. at the same time, some states hold on to their sodomy law and others like texas and got rid of all their archaic sex laws just about, but kept the sodomy law and narrowed it and specified it so that it applied only -- was called deviate sexual intercourse. it only applied to same-sex sexual act as, homosexual acts. at the same time texas did that in 1973, narrowing its definition just targeting hendee people. it had been in texas before it

decriminalized in olden law that was called subduction on the promise of marriage. a couple of others and it decriminalized bestiality. so, as of 1973 in texas you could legally have sex with another species but not with another person to whom you were committed and love. that is the remarkable message that texas was sending and then tried to defend that on the basis of traditional morality. i never heard of a traditional morality that allows the interspecies sexual acts and adult earnest acts and allows heterosexual sodomy but not homosexual sodomy, so it was a very selective sense of law. >> host: a ticket that to some degree it did was a reaction to the gay-rights movement, the gay-rights movement was just

getting under way in houston and texas and in some degree this was a ???? >> guest: that's right. there was really in the 1960's with the women's rights movement and really the sexual revolution in the united states in general there was a backlash and the gay-rights movement began in the modern phase in earnest in the 1960's especially 1969 the stone wall and new york city where there was a backlash against the police that were shutting down debars come and that spread across the country, including the cities where the gay rights began to form of these were early on in the 70's fledgling groups, so the texas sodomy law i suppose more an attempt to hold onto as much of that traditional morality as the state thought it would hold on to. but certainly not give any

ground to gay and lesbians and in fact there was a debate over whether the law so it subject to a man to punishment in prison, and some texas legislators resisted that because they said that punishing game in in prison was in 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 gay people. as, the gay-rights movement did get going. it got going in a number of cities across texas including houston and enjoyed some early success in the 70's and early 1980's. then it got slammed down and a referendum on a very narrow civil rights ordinance protecting the city employees in houston and january of 1985 that itself was an example of the backlash against gay-rights.

so there was a great deal of resistance in texas and every year the legislature refused to repeal all even though it was asked to do so and the texas courts turned away any challenge to law by saying nobody has been arrested. >> host: what happened to john lawrence and tyrone, they were arrested and prosecuted. how did their case move up in the courts? >> the story began from the moment they were arrested, and joseph quinn, the lead to the deputy files charges, the charges then go into the justice of the peace corps because it is the court with jurisdiction over these minor criminal offenses, the class c and misdemeanors, and it wasn't obvious at that moment the had this case would ever make its we ought to the supreme court because there is no sodomy alert the kosoff

telling gay-rights activists that somebody from some jurors diction somewhere in the county has been arrested, so it could have very easily ended right there and they might have just paid their fines after they've gotten over their anger, or they might have paid a defense attorney who didn't care about any gay-rights clauses but wanted to collect the fee by the negotiation to be the reason i got in the hands of the gay-rights advocates is that the judge in which the case landed had a clerk who was himself a closeted gay man and he's all this charge come in the next morning after these men had been arrested he saw the officer who had done its and this officer was well known in the jurisdiction. and he saw the charge sodomy law that he didn't even know was an offense in texas and he couldn't believe there was such a charge.

when he looked up the code to enter into the administrative system for the judge he didn't have the code. there was no code for the offense on like for most of the offenses that they found. he had to go and look it up. i think they may have had to look one not to allow it to enter. >> host: i was surprised there was such a criminal charge and the conduct and even people that worked in the court system no one that i spoke to in the case except one activist in houston had ever heard of anybody being arrested on this kind of charge. he told his partner ten years at that point was a closeted devotee in the harris county sheriff's office and had actually been a supervisor over the lead to arrest officer you begin to see connections all over the case. it's a small world out there. his partner was an official search and in the sheriff's

office pulled his partner about this and said they couldn't believe it, but they had no inkling that this is a matter of constitutional dimension. so after they had been wrested they were talking about it after they got their trip to the gay bar in the middle of houston where they are gossiping with the bartender and they tell the bartender guess what we saw, somebody was arrested for sodomy last night. the bartender happened not to be just a person that was expert and pouring vodka martinis, but was also a the rights activist. so once he heard of this, he immediately thought this is the case we had been waiting a generation for and can go to the supreme court. he wasn't an attorney, but he knew it had potential given the fact they were arrested in their home. so then he got in contact with lawyers who began pursuing the case in the texas court

initially on successfully. >> host: in the texas? >> guest: in the texas courts initially on successfully. they went in front of the justice of the peace about two months after the arrest occurred in 98 the justice of the peace had no power to strike down the texas sodomy law, so he signed them i think $100 each. they went back and said holy cow, $100. that isn't enough for us to be able to appeal. they thought they were advised to meet you had to be fined more than $100 to be able to be eligible to appeal your convictions of the end of going back to the judge and asking for a higher fine on their client. we would like to be charged a high year finance and the

prosecutor agreed to the fine against the defendants. so they go back to the judge and she is somewhat surprised to hear the defense capital asking for more punishment. but he granted the higher punishment another $20 or so each and the case proceeded through the county criminal court where again the judge didn't have much power to overturn the texas sadr a law. it was in front of the intermediate appeals court in texas which was a couple steps below the supreme court of the united states. and there they confronted three partisan elected republican judges from very conservative areas and you have a chance in front of the judges you will never win. they are not going to listen to anything you have a rough time and argument, and it turned 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 that case of the texas equal rights amendment, which prohibited discrimination on the basis of sex. and they said the sort of laws and law on the basis of sex because whether or not you are punished depends on the six of the partner that you are intimate with. a very straightforward case and the in that ruling that way as a tremendous political backlash in the republican party in texas. the state convention was held in a very short time after their decision and the state convention issued a resolution rebuking them and calling on them to reverse their decision. so the appeals court in texas to drop the issue and did reverse them quickly. did the texas supreme court to hear the case after that?

or just refuse the appeal? >> guest: and texas they are the equivalent of the two supreme court's one for the civil matters and one for criminal matters, so in texas the supreme court handles the civil matters and the court of the criminal appeals handles the highest court for criminal matters, so the case actually went to the court of criminal appeals, which sat on the case for a year saying nothing whether it was going to consider the issue. after the year was over without any explanation the court said you are not going to hear this matter. so that your past and once the decision was made, the only next step was the united states supreme court. >> host: and that is where he had been focused from the beginning to read the case was going to go as high as the united states supreme court. interestingly, if they had

prevailed among the two judges that rule for them and the texas court they wouldn't have gotten to the supreme court in this case. >> host: all along the way it is amusing and its own way and how it got there. but nonetheless, the supreme court justices were very aware of this issue and the new they would be etched criticized over the years since then. landau wanted to get another case before the court. they filed as a petition and they were granted that petition kratovil the fall of 2002 granted them to hear their case. this is a legal question about that there were issues presented if i remember correctly when was the privacy claim. the other was the equal

protection claim that gays and lesbians are being denied the protection of the law for the recent as you stated, these laws were clearly discriminatory. and the first was the sort of liberty privacy issue. i think a lot of dust cover the court, and i am sort of in that category felt that the likelihood was that the court would take up the case, focus on the equal protection and instead focused in the end on the liberty and privacy claim. what is the significance of that and why -- did you expect that at the time that would have been the way they would handle the case? >> guest: i didn't expect that they would take the liberty and privacy claim as you put. i think most of the attorneys fought if the court rules are going to overturn a would be on the ground of equal protection. the basic difference between the arguments is the privacy or

liberty or fundamental right argument the government has no place in the bedroom and cannot tell adults what to do with their own intimacy. but the quality or equal protection argument says if the government decides to come and start telling people what to do in their bedroom at his to do with the same for everybody. it can't just select a small group of people, 3% of the population and tell them they can't do with a 97% can do. based on the fact the court decided the issue just 17 years before on the liberty and privacy grounds and said at the time that those arguments were at best facetious against the libyans in the case there was a great since the court wouldn't rule on those grounds but would go the others. that's important because if the court had just decided the case on the equal protection ground, then there would be issuing a

decision in which yes it struck down the texas sodomy law but it allowed bowers versus hardwick to stand which had done so much damage in the law. second, it would say to the states you can have a sodomy law you just have to apply it to both heterosexual and homosexual sodomy. while that might appear equal in some sense, everybody associated sodomy with homosexuals in the popular mind and 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 in other ways it might have been significant in itself three allin joined these arguments of is the liberty and privacy argument and the equal protection argument on the other hand is the basic narrative to

sketch out the case of the car they wanted to make a mainstream presentation to use their words they wanted to show the court that there was a connection between the intimate lives of gay and lesbians and the establishment of the relationships and even building a family. that's something of the supreme court didn't seabeck in 1986. but they did see it in 2003 and the frame the case in precisely that way. they wanted to show the court that in striking down a boat and the texas sodomy law they wouldn't be leaving the patient there were only 13 states that still had them and those were almost entirely on enforced against private sexual activity. they didn't want to scare the court with a possibility that it was leading the nation into the uncharted territory. it could be safe and strict on the texas homosexual conduct

law. so that was the narrative, and it was extremely effective. it shows throughout justice kennedy's opinion and the references to the importance of sex and intimacy and adel pleiads insofar as it helps to build relationships. >> host: i can't think of another area where the sort of public mind has changed so much in 20 years. the court was different in 2003 than it was in 1986. but the whole country was different putative i remember the time of the 1986 decision and even then people thought it was a little bit extreme that the court would have upheld law in 1986 but as you said, by 2003, it seemed like something from another event that that could still exist, that persons could be arrested and taken to jail for conduct in their own apartment that front-end no one or heard no one.

so it did seem like the whole country and the law had changed, but as you know, when the court decided that case, there was still a very sharp division within the court that ended up six of the justices voted to strike down the texas law and there were the three dissenters. tell us a little about the divide in the court on that one. >> guest: you are quite right to know there was a shift in the court and in the country between 1986 and 2003. in 1986 the justice actually said to the clerk i don't know any gay people. i've never met any gay people and it turned out the clerk that he was speaking to was himself a closeted gay man. and in 2003 when paul smith who was the lawyer was about to get up and deliver his oral argument to the court someone whispers in his year justice o'connor just sent a baby shower gift to a clerk and her lesbian partner.

if there are two moments that encapsulate this change that occurred in the country in that generation, those moments really do offer that, those examples. >> there was still a sharp divide on the court. the opinions are fractured in some sense justice kennedy rules for five justices on the grounds of liberty and privacy. in bowers versus hardwick of the head of the private argument on the equal protection ground which is what many people thought the court would do. so they provided the and then you've got three votes in the minority justice scalia, chief justice rehnquist and justice thomas. justice scalia rights and announces a vehement to send in which he says basically the court has taken sides in the cultural war and that it's not

be giving in a fashion that can be tied to the constitution in any way that this would be a slippery slope to things like bigamy and widespread of semidey and she said they marriage and then justice thomas writes for himself saying that while she believes they are silly to use his expression quoting from the early justice, and if he were a texas legislator she would vote to repeal these she is a judge and not a legislator and there is nothing in the constitution he's as protecting the right of privacy. so he provides the third dissenting vote. >> host: the kennedy scalia division is so interesting because the ronald reagan appointees from the 1980's, both of them serve as catholics born in the 1930's had a similar background. they agree on a lot of things on

criminal cases, corporate cases, the, sort of cultural cases justice kennedy always seems very much of the california republican. a very different, a completely different instinct than justice scalia. justice scalia i remember the reading of those opinions, and was just such a stark divide because kennedy spoke about the importance of -- giving respect and dignity to the gays and lesbians that dever deserved the same respect and dignity as of their relationships. it was such a sympathetic portrayal and so much in line with what you said the notion of the important relationships for gay couples. he said this is not a sex case this is a case about relationships. and after he finished and