being very educated and a very bright white man. he looked at him for about four minutes and he said he is a lobbying onion head flat face cracker, change the channel, boy. so it was living history. and i like that. i could use some of that stuff in the school yard. so when the militants came on, not only with a challenging the power structure in a different way, in a way that we hadn't seen in the lament, they would fly about. again, she was talking about black power but i remember one news report where brown got arrested for possessing a rifle in louisiana and the covered and getting out of jail. ..

you watch. and then i had to, as much to prove to paul as to myself, and all i was feeling, find the most militant organization on the scene, and it was subjective. i didn't really know what was going on. so there would be reasons to look at organization and reject it just on the surface level. like the black muslims. grandma makes a mean bacon so i can't be a black muslim. if you like snake, paul is having fun -- and then they ran a news report, talking about the

rising militancy in america, and it was a story about the black panther party, and they ran the footage where the panthers, led by chairman bob by, stormed the state capital in sacramento. and for folks who don't know, the panthers started patrolling the streets of oakland, california, with shotguns and law books, enforcing one of the ten point programs. later that caught the imagination of the community of america because it was legal to carry a gun in california if they weren't concealed. and the law books were to make it clear that they standard the right, understood the right to observe the arrest, the right to bear arms, follow a person to the precinct, bail them out, and if not, legal volunteers to get people out. i'm seeing black people with

guns. so california responds by saying, yes, the law says you can carry weapons if they're not concealed. about we didn't many black guys with leather coats andber -- berets, and the quickly moved to change the laws, and panthers responded by storming the hearing. and i'm looking on grandma's tv, seeing the panther storming the legislature, going, they're crazy. the powerful white men, they're ducking under their seats for cover, and then the panthers come out, chairman bobby reads the statement, you know, about the constitutional right to bear arms, and that we have to defend ourselves because the police are not defending our communities. they occupy or communities. and then a reporter says the ultra -- he says, please stop your cause and found more guns and communist literature and the trunk. i said, they're crazy. they got leather coats, guns, the man said they're communists.

>> i'm joining that one. because you're a kid. you want to be with the roughest and toughest. >> you can watch this and other programs online at "book tv organize organize." >> up next, an hour-lang program where we invite guest hosts to enter vue authors, this week, dale carpenter discusses his book with david savage. the book details the landmark gay rights case, lawrence vs. texas. the ruling made same-sex sexual activity neil all u.s. states and territories, and paved the way for same-sex marriage laws. >> dale carpenter, you have written a fine book on the supreme court case of lawrence vs. texas. a book that sort of tells the story from the beginning to the

end. let start with a big picture question at the end why was the lawrence case important? i. >> guest: i would say this is one of the most civil liberty decisions in the supreme court in the past 5 5 years or so and 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 will be long remembered in american constitutional history. >> host: tell me why. there was one sort of law in effect prior to lawrence, and lawrence changed the law in a big way. tell me about the -- heading into the lawrence case, where the law was before and where it was after. >> guest: well, in a series of cases and laws around the country, the states had banned

so-called sod my, which included certain specified sexual acts over many, many years. but texas had decriminalized much of the old archaic sex offenses and had solely focused on gay sex and criminalized gay sex. these laws came before the courts, both state courts and federal courts, ending with a resounding defeat for gay civil rights advocates in a supreme court decision called bauers verse hardwick in 1986, and that decision had declared that any -- what the court called right to homosexual sodmy was, at best, facetious. there was no fundamental right to such a thing, no bright of privacy if it extended to protect gay people and their intimacy even in their own homes and even as adults. and there the law stood, the

constitutional law stood, until lawrence versus texas came along in 2003 ask changed there. there was a development hatching where the states were repealing legislatively or having overturned through legal action their own state sodomy laws, so we went to a state where some states had sodomy laws, to, by 1986, half the states still having such laws. to 2003, when lawrence is decided and we still have 13 states with such laws. so they were very much on their way out, but the constitutional doctrine upholding them still stood, and states like texas were revising repealing their laws and the courts would not

overturn them until someone was actually arrested in the home for allegedly having sex in violation of these laws. >> host: you write, and i think very effectively, it wasn't during those years that the police were in large numbers aggressively going out and arresting people. but that as long as those laws were on the books, gays and lesbians were branded as criminals under the law, and that -- i take it that some of the biggest impact of the laws was on things like custody questions, adoptions, jobs, employment, a whole lot of states you could be branded as a criminal as long as those laws were on the books. >> guest: that's right. the laws were only rarely enforced. in fact we have very few known, verifiable instances of enforcement of sodomy laws against private activity between adults, where no minor is involved, where no quasi-public place is involved.

very few examples of enforcement. they did exist but few and far between. the laws were used instead as a justification or as a pretext for discriminating against gay men and lesbians in every area of life, and in fact the bowers versus hard kick decision from 1986 was cited be federal courts and state courts across the country as a reason not to provide any additional judicial protection to gays and lesbians from discrimination. police departments like the dallas police department, banned the hiring of homosexuals on the grounds that these were people who were identified as a criminal class and, therefore, should not be entrusted with enforcing the law. gay people could be, and were, banned from being teachers in public schools on the grounds that they were modeling criminal behavior for students. gay parents lost custody of

their children or had their visitation rights restricted. antidiscrimination laws of all kinds were resisted on the grounds we should not model or protect what is essentially a criminal class of people. in every area of life, the sodomy laws were not so much enforced against sex but were enforced in fact in other ways. >> host: so unusual about this area of law. the laws were not actually enforced but they had a powerful impact as long as they were on the books. and then lo and be behold the laws were enforced in september of 1998 when the police went out to arrest two men in an apartment in houston for what appears to be a false report. tell us how the case got underway, then. >> guest: well, that day, september 17th, 1998, which

happens to be constitution day in the united states, these three friends, john lawrence, tyrone garner, and robert eubanks were moving furniture around. they finish erred the work for the dade and decided to go to a restaurant, had a few drinks, came back to john lawrence's apartment where they continued to do drinking and watching television and so forth. eubanks and tyrone garner, one of the two defendant inside the lawrence vs. texas decision, who was himself black, while robert ubank was white -- you bank and garner got into a kind of a fight orally, perhaps involving some jealousy, and eubanks announced at one point he was going to 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 an easy chair in the living room, puts down the bolt of vodka he had been drinking from, goes over to a drawer in the kitchen, gets some change out, and then leaves the paper to go downstairs. but instead of getting a coke, he in fact put that money into a pay phone, and he called the harris county sheriff's office, the police department in charge of that area, in which john lawrence lived. and he reported to the sheriff's office that there was a black man, referring to his partner, tyrone garner, going crazy with a gun inside of john lawrence's apartment. so at that moment apartment, so at that time there was john lawrence and tyrone garner the apartment, and possibly another man, and robert eubanks is on the first floor making the call the sheriff's department. that was of course a false report and he was later charged

with filing a false report and spent a couple of weeks in jail. a quite serious offense. once that report was made, that becomes a very high priority call for the sheriff's office as it would for any law enforcement agency, potentially dangerous situation for citizens, potentially dangerous situation for any law enforcement authorities. so, a few sheriff's deputies who were patrolling in the area, immediately turned around their cars and headed into the apartment complex, looking for this apartment and this black man who was supposedly going crazy in a weapons disturbance. the first two arrive on the scene encounter robert eubanks at the base of the stairs to john lawrence's apartment and asks them, where is the man with the gun, and he opinioned up to the second floor at the top of the stairs where there was a landing toward john lawrence' apartment. he was quickly joined by three

other deputies from the sheriff's department, and they decided to go up together, and at that point they go up the stairs, what's called a tactical stack. hundred wind the other, guns drawn, ready to deal with any weapons disturbance they might find. they arrive at the top of the landing, and at that point they say they knock on the door. and they say at that it point -- this where is the stories diverge, by the way, between the -- john lawrence and tyrone garner on the one hand and the police on the other. they say they knocked on the door and that had the effect of opening it up. they looked inside the apartment, according to them, and they -- there was a light on inside of the living room. a small two-bedroom apartment. >> that plumb presumably said, police? >> guest: they announced twice, sheriff's department, sheriff's department in a voice loud enough for anybody in the

apartment to hear. there was no radio or television on. nobody was talking. they couldn't hear number. they couldn't see anybody when they looked in. so they say it's an empty room. and they then began to say, well, we're going to search this apartment. two of them go off to the left looking into a bedroom on the side. where they ultimately don't find anyone. and then 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 they told him to put his hands up, which he complied with, 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 apartment, a few feet away, still hearing nothing, no voices, no

responses, not having seen anybody else. the light is off inside the bedroom, about the door is open. so they can see from the ament light of the living -- ambient t from the living room somewhat into the bedroom. so these two officers out of the for a -- the two officers approach the bedroom door. they have their guns drawn so they're ready to deal with anything they might encounter. very dangerous situation for them and anyone they encounter, and tension is very high. the black police officer arrives first at the door, looks in, and says he saw john lawrence and tyrone garner engaged in some kind of sexual act. he was not sure when i interviewed him later, what it was. he believes they were having oral sex, which would violate the texas sodomy law, the homosexual conduct law in texas. and that -- seeing that act so startled him that he lurched

back. jumped back. the officer behind him, who had been the first one on the scene, thought at that moment that he must have seen the gun slinger, the person who was threatening people in the apartment with the gun, so he got into a crouching position and with his gun pointed straight ahead, he maneuvers into the bedroom with where the light is still off. he said that he saw john lawrence and tyrone garner on the bed, having anal sex, not having oral sex. so we have a significant difference in what they were saying. both of those acts would have violated the texas sodomy law. the officers say they then told john lawrence and tyrone guardianer 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. the guck pointed at them, very loud male voices yelling at them

inside the bedroom. finally one of the officers says he flipped on the flight bedroom so everybody could see everybody very clearly now. and he says they would still not stop. and in fact he says john lawrence turned around and looked eye-to-eye with the officer and then looked back and continued 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 from them violating the texas homosexual conduct law. that's the story the officers tell. they say that was a violation of the texas law, and it doesn't matter whether that act occurred inside a home or in a public place. it was violation, either way, if it occurred between two people of the same sex. so, then they had two 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 moving violation in it was a class c misdemeanor, punishable by a $200 fine. it's not a jailable offense by itself. it's not something to which you're sentenced to my prison time. and the police officers have discretion simply to issue someone 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 decided that he was going to issue john lawrence and tyrone garner 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 decision that he made was not simply to issue the ticket but actually to take these two men to jail, and that's what the officers did,

proceeding to take them down the stairs, with neighbors watching, john lawrence, clad only in his underwear, put them in the patrol cars and take them to jail where they spent the evening. >> host: did they explain why they made the decision to take these to two men to jail? >> guest: yes. the officers, the lead officer and the other officers on the scene, only two of them claimed to have actually seen any kind of violation of the law by these two men -- said that they simply enforced the law, that these men were violating the homosexual conduct law and it's not their job, they said, to decide which laws to enforce. they have to enforce all of them. so i asked the officers about that a little bit. 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 sexual activity, which is a violation of public lewdness laws in texas, much more serious offense, by the way, under the texas criminal code. and they said, yes, that happens quite frequently, and i said, what do you do? and one of the officers said, well, we make sure nobody is a minor, we make sure it's not a rape, it's consentual, and if it is, then -- if a there's no minor involved and if it's consentual, we tell the couple, get your clothes back on, you shouldn't be can do that here, go back to your home or find a hotel or something. but we don't issue a citation. i said, well, then obviously you do have discretion about whether or not to cite people for having sex. what 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 to. and he said, well, it was a man

and a man. what made the difference is that we head two gay men here. and so the reason the officers gave is true. they have the power to enforce the law if in fact they saw a law violation, which i doubt. but there's probably reason -- several reasons behind it, and that is that the officers very quickly learned these were gay men, there was gay erotica inside the apartment, john lawrence and tyrone garner -- there was a trigger going off in their minds, triggering a deep-seated antipathy for homosexuals and that had a great deal to do with the decision to cite them and then arrest them, and then there was the fact that john lawrence was talking back to them. he was calling them stormtroopers and job -- jack

booted thugs and telling them he was going to call his lawyer, and the lead officer in this case did not appreciate being talked to that way, and i think they were upset because they had been called on a false premise to this apartment and wanted somebody needs to pay for that. >> host: i was surprised in reading your book you gave the basic facts of what happened in the apartment and how the case went forward, these two men were arrested for having sex in their apartment. seems sort of shocking you could be arrested in 1998 in your own apartment for something like that. but after reading your book, i got the impression that since none of this was true. that there's reason to doubt the basic facts, that there was sex in this apartment, and the lead officer you -- you did a very fine job of reporting on -- he arrested mothers at school for dropping their kids like at the

wrong place in front of the school and taking them to jail. so he seemed to have a hair trigger as far as if he felt insulted of putting you -- a person under arrest. so, tell us sort of what you learned after going -- doing a lot of reporting on what may have actually happened here. >> guest: well, i did speak to three out of the four officers who were there first on the scene that night. and they were quite willing to speak to me, and the lead officer was in particular very interesting because he was the one who made the basic decisions. he is a priority unit, as they're called, on the scene. he makes the basic decision whether to arrest and whether to take people -- cite people and then take them to jail. so it was his call. and i had people inside 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 cited them and taken them to jail. but he was the one, and so in a sense the gay civil rights movement was lucky in getting him to arrive first because he was the closest to that apartment that night and arrived first and therefore was the one entrusted as the decisionmaking authority. any other officer this case might never have happened. but he was interesting in himself, as you point out there. were plenty of people willing to talk to me, including the judge, who was the first judge who had jurisdiction over this case, and then the officer himself. i asked him at one point in our interview, have you ever been subject to a complaint from a citizen for any reason? in the course of your duties? and he laughed. i said, why are you laughing? and he said, well, i have the largest complaint file 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 regail me with details of complaints that had been filed against him, which he said were meritless, but nevertheless appear to have been quite numerous. he was sent to anger management school by the sheriff's office. taken off of patrol for a while and sent to work back in the jail, which is a terrible demotion for a patrol officer. so he really had an extraordinary record, and as i say, may have been fortunate for the gay civil rights movement he was the first to arrive on the scene. >> host: didn't you also say that if people referred to him as sir, when he stopped them, he was accommodating but if they were unpleasant, he took a different view, and i assume john lawrence was quite

unpleasant when this fellow -- these officers burst into his apartment because he didn't know anything about the supposed man with the gun. >> guest: right. so you have john lawrence and tyrone garner sitting there -- according to john lawrence, when the police came in, he was sitting on the couch and tyrone garner was back in a kitchen area, which was visible from the front door, at the back of a dining room table as much as 15 feet apart. they were not having sex, never had sex, and so the police burst in and start questioning them about who has a gun. and for them, it comes out of noy where and he reacted quite angrily. he had been drinking a bit. he acknowledged that. so he was engaged in his own form of civil disobedience, and as i say in an interview about -- about six months before he died, he told me about what happened and said the police had

told bald-faced lies about these two men having sex. he was very upset about it. and that's 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. >> host: yes. the story gets more interesting as it goes along. it's the case, isn't it, 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 policeman burst in, 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 take it the view was, the outrage here is that these laws are still on the books. so they made the strategic decision to have them -- what,

encourage or persuade john lawrence and tyrone garner to plead essentially no contest, sort of assume the facts that the police said were true, and then challenge the laws. >> guest: that's exactly right. john lawrence and tyrone garner were taken to jail that night from the apartment and they were put into orange jump suits and put into the jail as just anybody would be, somebody was arrested for public intoxication that night. the next morning, they're sent in front of a judge without any representation and at that point they have to enter an initial plea, and their initial plea, their choice was immediate guilty no contest, or not guilty, and at this point they haven't talked to any lawyers and they hear the charge and realize for the first time they have actually been charged with having sex with each other. from their perspective, if they're right and they weren't actually doing this, this was,

as john lawrence says, baldfaced lie, farm -- fabrication. they were stubbed and they pled not guilty. they had not been involved in the gay civil rights efforts, not contributedded to organizations. they were just people leading their lives, and their inclination was to fight it. to -- maybe they would pay fines but they had a sense that injustice 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 itself an interesting story which we can talk about if you like in a bit. but they did have a meeting with the attorneys they were involved and ultimately the national gay rights group became involved and they were expert at these areas

and they said you can plead not guilty, and we can -- these officers can be put on the stand and we can ask them to recount this tale of sexual daring do they say happened, and we'll see what happens. my guess is they would have been acquitted if that had happened. or you can plead no contest or plead not guilty, and it's not much of a difference it turns out between not guilty and no contest. so they pled no contest. meaning that the only facts that ever made their way up through the court was that facts alleged by the police, the 69-word complaint filed by the lead deputy that night who said we entered the apartment and saw them edge gauged in this violation of the texas law, there was never a trial, there were never any witnesses, never any cross-examination or anything like that. you accept what the state says happened and then you say, if everything they've say is true, nevertheless, the arrest is

unconstitutional because it violates their constitutional rights to arrest them under those circumstances, and in a meeting they had with the lawyers, the lawyers explain the importance of this case. it wasn't just -- was not just about them. that this sort of thing could happen again. it had happened in the past. and that these laws had a larger effect that we described earlier on millions of gay americans. and that meeting occurred in mid-october of 1998, which was, you may remember, about the time that matthew shepherd was left to die on a fence in wyoming, and it really 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 cause here than just their own factual innocence and the police should

not be allowed to do this in the future. >> host: a big decision for them. they were taking one for the team. admitting to something they say did not happen. pleading essentially pleading guilty to something they didn't do, as a case to get a real case to challenge the laws. >> guest: that's exactly right. >> host: it is the case in other jurisdictions -- i thought this keis would have gone away from the prosecution. they wouldn't have tried this case. i take it that in the end that the texas prosecutors and the texas courts were not willing to have this case sort of go away. >> guest: yes. in fact, the gay rights movement in this case was sort of lucky or blessed, one might say, in the police officer who arrived first and made the basic decision. but it was also lucky, fortunate, in that it had a set of prosecutors and district attorneys and then judges ultimately, who would not dismiss the prosecution. i think the harris county district attorney's office was

backed into a political corner in this case. the harris county district attorney is elected. is an elected partisan person, and the county itself is quite conservative, has very traditional social views, views on social issues, and once this matter got into the newspaper, that these two 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 from a prosecution, and in fact they were quoted in the paper as saying, sort of equivocating on the case by saying, this might be a bad law but we don't have any choice about what laws to enforce and the best way to get a bad law off the books is to enforce it. so that's exactly what they ended up doing. it does turn out, by the way, that one of the early prosecutors in one of the lower

courts in texas was herself a closet lesbian at the time, and she didn't -- she could have entered a -- dismissed the prosecution or asked they to dismiss and she said she was required to let the case proceed and she didn't have any discretion. >> host: so the state was going to defend the law. let's take a quick break.

>> host: the decision to charge john lawrence, tyrone garner, and the state's willingness to defend their laws that seem vulnerable, sort of set this case on the road up through the courts. but would you tell us about the history of these sex laws? on the one hand seemed like they have a very long history, but iles took from reading your book they have -- some sense recent history. the 1970s they were much more targeted at gays and lesbians. >> guest: that's exactly right. sodomy laws in general laws that prohibited all nonmarital, nonprocreative sexual acts, go back hundreds and hundreds of years in the last -- go back to england and the colonies and every state had some version of a sodomy law as of 1960. so, in a sense, as the supreme court said in bowers vs.

hardwick, these were laws of ancient origin, i suppose you could call it. but the supreme court in 1986 did not have a very deep or sophisticated understanding of the history of these laws. they were not laws that were targeted on their face only at gay sex. they targeted both heterosexual and homosexual nonprocreative sexual act, like oral sex, and in every state until the late 1960s and early 1970s that's the way they were written. in the mid-1950s, very influential legal authorities suggested a number of archaic sex laws be removed, and sodomy laws were among those. that began a process by which the states been repealing their 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 sodomy laws, and others, like texas, got rid of all the rest of the are take sex laws but kept the sodomy law and narrowed and it specified dirt was called deafat sexual intercourse, as texas called it, only applied to same-sex sexual acts, homosexual sex, and at the same time texas did that in 1973, narrowing it definition and just targeting gay people. it decrimeizeed things like adultery, which had been criminal in texas before. decriminalized an old law that was called seduction on promise of marriage. a couple of others. and it decriminalized beastality.

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 in love if that person was of the same sex. that's the remarkable message that texas was sending, and then tried to defend that law on the basis of traditional morality. i never heard of a traditional morality that allows interspecies sexual acts and adulterous sexual acts and allows heterosexual sod sodomy but not homosexual sodomy. >> appeared to be a reaction to the early years of the gay rights movement, the movement was just getting under way in houston and texas and to some degree this was a backlash? >> guest: that's right in the 1960s with women's rights movement and the sexual revolution in the united states

in general there was a backlash and the gay rights movement began -- the modern phase began in ernest in the late 1960s and especially 1969, the stonewall inn in new york city where there was a backlash against the police who were shutting down gay bars, and that spread across the country, including into texas cities where gay rights groups began to form. these were early on in the 70s fledgling grews so laws like the texas sodomy law were i suppose an attempt to hold on to as much of that traditional morality as the state thought it could hold on to, but certainly not give any ground to gays and lesbians, and in fact there was some debate 0 over whether the law should subject gay men to punishment in prison and some texas legislators resisted that because they said that punishing

gay men in prison was not a punishment. they would actually enjoy being in an all-male environment. this was the kind of thing that texas legislators were saying about gay people. so, the gay rights movement did get going. got going in a number of cities across texas, including in houston. and enjoyed some early successes in the late '70s and early 1980s, and then got slammed down in a referendum on a very narrow civil rights ordnance protecting gay city employees in houston in january of 1985, that itself was an example of this backlash against gay rights, and so there was a great dole -- deal of resistance in texas, and every year the legislature refused to repeal the law, and the texas courts turned away any challenge to the law by saying,

nobody mass been arrested. >> host: so what happened with john lawrence and tyrone garner? they were arrested and prosecuted. how did their case move up to through the courts? >> guest: well, it really -- the story begins from really the moment they're arrested and joseph quinn, the lead deputy in this case, files his charges. those charges then go into the justice of the peace court because that's the court with jurisdiction over these really minor criminal offenses, class c misdemeanors, and it's not -- it wasn't obvious at that moment that this case would make it to the supreme court because there's no sodomy law alert that goes out to the world -- telling gayrise activists somebody has been arrested. so it could have ended right there and they might have just paid their fines after they had

got over their anger or might have paid a defense thorne didn't care about gay right causes and wanted to collect a fee. might have negotiated something smaller for them. the reason it got in the hands of gay rights advocates is that the judge in whose court the case landed, had a clerk who was himself a closeted gay man. and he saw this charge come in on the next morning, after these men had been arrest, and he saw the officer who had done and it he immediately knew something was wrong. this officer had -- was well moan in the jurisdiction, and he saw the charge, sodomy law, which he didn't even know was an offense in texas, and couldn't believe there was such a charge. in fact when he tried to look up the code to enter it into the administrative system for the jump, he didn't have a code. there was no code for the offense. unlike for most of the offenses they found. he had to go and look it up. i think they may have had to

make one up to allow -- >> host: i was surprised to hear that. i was surprised there was such a criminal charge in 1998, homosexual conduct, and people who worked in the court system -- >> guest: no one that i spoke to in the case, except for one activityist in houston, had ever heard of anybody been arrested on this charge. he told his partner of ten years at that point, closeted deputy in the harris county sheriff's office and had been a supervisor over the lead arrest officer, -- you begin to see connections all over the case. a small judicial world down there. his partner was closeted official, sergeant in the sheriff's office, told his partner about this, and they just said they couldn't believe it. but they had no inkling this was a matter of constitutional dimension. so that night, the night after these men had been arrested, they were talking about it and

they go to their weekly trip to the gay bar in the middle of houston where they're gossipping with the bartender, and they tell the bartender, guess what we saw, somebody was arrested for sodomy last night. and the bartender happened not just to be a person who was expert in pouring of vodka martinis, but was also a gay rights activist. so once he heard of this, he immediately thought, this is the case we have been waiting a generation for and it can go to the supreme court. he wasn't an attorney but knew it had potential given the pga fact they were arrested in their home. so the got in contact with lawyers who began pursuing the case in the texas courts. initially unsuccessfully. >> host: in the texas court. >> guest: in the texas courts initially unsuccessfully. 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 law, so he fined them i think $100 each, they went back and they said, holy cow, $100. that's not enough for us to appeal. they thought -- they were advised you had to be fined more than $100 to be eligible to appeal your conviction. so they ended up going back to the judge and asking for a higher fine for their client. >> host: we would like to be charged a higher fine. >> guest: and the prosecutor agreed to the higher fine against these defendants. so they go back to the jump and he is somewhat surprised to hear defense counsel asking for more punishment but he granted the higher punishment, assessed them

another $20 or so each and their case proceeded through to the county criminal court, where again the judge didn't have much power to overturn the texas sodomy law, but then it goes in front of the intermediate appeals court in texas, which is a couple of steps below the supreme court of the united states. and there they confronted three partisan elected republican judges from very conservative areas. and they were warned, you don't have a chance in front of these judges. you'll never win. they're not going to his top anything you say. your going to have a rough time in oral argument. turns out they were surprised. two of the judges at the end of the day ended up being persuadedded by their argument, this was a violation in that case of the texas equal rights amendment, which prohibited discrimination on the basis of sex. and they said this sort of law

is discrimination on the basis of sex because whether or not you're punished depends on the sex of the partner you are intimate with. very straightforward case. and they ended up ruling that way. it was a tremendous political backlash in the republican matter texas. the state convention was held within 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 full appeals court in texas took up the issue and did in fact reverse them quickly. >> host: so that appeals court upheld the state law as is. >> guest: yes. >> host: did the texas supreme court hear the case after that or just refused to hear an appeal? >> guest: well, in texas, there are actually equivalent of two supreme courts. one for civil matters and one for criminal matters. so in texas the texas supreme court handles civil matter the court of criminal pedestrians --

criminal appeals handles the criminal matters. so the case went to the court of criminal appeals which sat on the case for a year, saying nothing. not even whether it was going to consider the issue, whether it would order briefs to be filed or any oral arguments and after the year was over without any explanation the court said we're not going to hear this matter. so that year passed, and once that decision was made, the next step -- the only next step was the united states supreme court. >> host: and that's where lamda had been focused from the beginning. >> guest: landa had a sense this case was going to go as high as the united states supreme court. i mean, interestingly, if the -- they had prevailed among the two judges who ruled for them in texas. they wouldn't have gotten to the supreme court with this case. >> host: paying the extra fine,

all along the way sort of an amusing in its own way how it go there. but nonetheless the supreme court justices were very aware of this issue. they knew bowers vs. hardwick. much criticized over the years since then. landa wanted to get another case before the court. filed a petition and where along -- was it 2002? 2003? the court grandgranted the petition. >> guest: in the fall of tweet the supreme court granted the petition to hear their case. >> host: sort of legal question about that. there were two issues presented if i remember correctly. one was a liberty privacy claim. the other was equal protection claim, that gays and lesbians are being denied the equal protection of the laws for exactly the rope you stated. these laws were clearly discriminatory and the first claim was this sort of liberty privacy issue that bowers vs.

hardwick. i believe a lot of us who cover the court thought the likelihood was that the court would take up the case, focus on the equal protection. instead, they focused on the -- in the end on the liberty privacy claim. what's the significance of that and why that was -- did you exhibit that at the time? that would have been the hay way they handled the case? >> guest: i didn't expect they would take up the liberty and privacy claim as you put it. i think most of the attorneys for landa legal thought if the court were going 0 overturn the texas sodomy law it would be on the grounds of equal protection. the basic difference between the arguments is privacy and liberty fundamental argument that the government has no place in your bedroom and can't tell adults what to do with their own intimacy. the equality or equal protection argument says if the government

decides to come in and start telling people that would do in their bedrooms it has to do it the same for everybody. it can't select a small group of people, 3% of the population, and tell them they can't do what the 97% can do. and based on the fact that the court had decided this issue just 17 years before on the liberty and privacy ground and said at the time that those arguments were at best facetious against the litigants in that case, there was great sense that the court would not rule on those grounds but would go these other grounds. now, that's important because if the court had just decided the case on equal protection grounds, then it would be issue ago a decision in which, yes, it struck down the texas sodomy law but allowed the bowers vs. hardwick decision to stand which had done so much damage in the law and second it would be staying the states you can have

a sodomy law. ju just have to apply the sodomy law to heated row sexual and homosexual sodomy and while that might appear equal in some sense, everybody associated sodomy with homosexual. people didn't understand it played too what many heterosexuals do as well in their bedroom. so it would have been in? ways a disappointment, although in other ways it might have been significant in itself. what joined these two arguments, though, this liberty and privacy argument and the equal protection argument, is the basic narrative that the landa legal attorneys sketched out for the case, for the courtment they wanted to make a main stream presentation to use their word. they wanted to though the court there 'twas a connection between the intime that lives of gays

and lesbians and the establishment of relationships and the building of families. something the supreme court didn't see in 1986. they did see it in 2003 and landa legal framed the case precisely that way. they wanted to show the court that in striking down the texas sodomy law they would not be leading the nation. they would be following the nation. most of the country had left these laws long behind. there was only 13 states stat still had them and those were almost entirely uneven forced against private legal 'activity. they didn't want to scare the supreme court it was leading the court into uncharted territory. they would be safe in strucking down the sexual conduct law. and it was extremely effective. it shows throughout justice kennedy's opinion in his references to the importance of sex and intimacy in adult's

lives insofar as as it helps to build relationships. >> host: i can't think of another area of the law 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. i remember at the time of the 1986 decision, even then people thought it was a little bit extreme, that the court would have upheld the laws in 1986. but as you say, by 2003, it seemed like something from another event, that could still exist, that persons could be arrest, taken to jail, for conduct in their own apartment that threatened no one or hurt no one. so it did seem very -- it seemed like the whole country and the law changed but when the court decided that case there was still a very sharp division

within the court. ended up six of the justices voted to strike down the texas law, and there were three discenters. tell us about the divide in the court on that. >> guest: well, there were at the end of the day -- first you're quite right to note there was a huge shift in the court and in the country between 1986 and 2003 in 1986 a justice actually said to a clerk, i don't know any gay people. never met any gay people, and turned out the clerk himself was closeted gay man. and in 2003 when paul smith, the law for lambda legal was about to deliver his oral argument someone whispers in his ear, justice o'conner just sent a baby shower gift to a former clerk and her lesbian partner. two moments that encapsulate the sweeping change in a country and a generation, those offer those

examples. but there was still a sharp divide on the court. and the opinions are fractured in some sense, justice kennedy ruled for five justices 0 then grounds of liberty and privacy. justice oconor, who had been in northernity in bowers versus hardwick and rejected the privacy and liberty argue; rules on equal protection grounds which is what many people thought the court would do. so she is the six until vote and you have three votes in the minority. scalia, rhenquist and thomas. justice scalia writes and announces from the bench a see. he discement which he says the court has taken sides in the culture war. it's not behaving in a fashion that can be tied the constitution in any way. this will mean a slippery slope to things like bigamy and on or on sendty, and he said, gay

marriage, and justice thomas writes for himself, saying that while he believes these laws are uncommonly silly, to use his expression, quoting from the earlier justice, and if -- or texas legislator, he would vote to repeal these laws, he is a judge and not a legislator, and there's nothing in the constitution, he says, protecting the right to privacy. so he provides the third dissenting vote. >> host: such a fascinating -- the kennedy-scalia division on this is so interesting because they were reagan appointees from the 1980s. both of them sort of catholics, born in the 1930s, had some similar background, but on these types of -- they agree on a lot of things, on criminal cases, corporate cases but on the culture war cases, justice kennedy always seem to be very much of a california republican, completely different -- has a

completely different instinct than justice schoola. justice scalia -- i remember reading the opinions and it was just such a stark divide because kennedy spoke about the importance of giving respect and dignity to gays and lesbians, that their relationships deserve the same respect and dignity as other relationships. it was such a sympathetic portrayal, and so much in line with what you said, the notion of -- the importance of relationships for gay couples. it was not -- he said this is not a sex case. this is a case about relationships and then after he finished justice scalia cut through the air with the strong dissent, and i wanted to mention that he did make this point, that don't be fooled by what nip tells you. this is going to be about