but it did that necessarily get to the hardest-hit states. surtaxes is doing okay with the oil. tell of highway money. and it the point of before abortion was not deciding what it would do. it would punish enemies a reward friends. the best project in that sense. >> my colleague here it has been telling me to cut it off. ..

>> dale carpenter, you have written a fine book on the supreme court case of lawrence versus texas. it tells the story from the beginning to the end. let's begin with a big picture question. why was the lawrence case important? >> i would say this is probably one of the most important civil rights decisions or constitutional law liberty decisions it over the past 50

years or so. it is the most important decision so far for the rights of gay men and lesbians. this is an opinion that is important to a great many people, and i think will be long remembered in america as constitutional history. >> there is one set an loss that was in effect prior to lawrence. lawrence change the law in a big way. tell me about -- heading into the lawrence case, where the law was before and where was after? >> in a series of cases and laws around the country, the states have banned sodomy promotes included certain specified sexual acts over many years. but texas had decriminalized much of the old archaic sexist fences, dust sex offenses.

these loss came before the state courts and federal courts over the years, ending with a resounding defeat for gay civil rights advocates. there was a supreme court case called bowers versus hardwick in 1986. that decision had declared what the court called right to homosexual sodomy, was, at best, facetious. there is no fundamental right to such a thing. there is no right of privacy extended to protect the people were intimacy in their own homes, even as adults. the constitutional law stood until lawrence versus texas in the long and 23 and change that. there was a development happening at the same time, which is that the states, one by

one, were either repealing legislatively or having overturned the judicial action, their own state sodomy laws. we went from a situation in 1960, were all 50 states have some had some kind of sodomy law, which applied to both heterosexual and gay activity. by 1986, about half the states, still had sex loss. in 2000 and three, dashed in 2003, they were very much on their way out of the constitutional doctrine -- and states like texas were repealing their loss. the courts would not overturn them until someone was actually arrested in the home for allegedly having these laws. >> you write effectively that it wasn't during those years that the police were not aggressively

arresting people. but as long as those laws were on the books, gays and lesbians were branded as criminals. some of the biggest impacts of the laws were things like custody, adoption, employment -- you could be branded as a criminal, as long as those laws were on the books. >> that is right. laws were only rarely enforced. we have very few known and verified sodomy laws where no minor is involved in a quasipublic place is involved -- enforcement like that is a example. they were few and far between. the laws were used instead as a justification war pretext for discriminating against gay men and lesbians in every area of life. in the case bowers versus

hardwick decision itself, it was cited by 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, and the hiring of homosexuals on the ground that these 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 that 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 that were enforced, in fact, in other ways. >> it was so unusual -- was so unusual is that the laws were not actually enforced, but they had a powerful impact as long as they were on the books. lo and behold, the laws were enforced in september 1998, when the police arrested two men in an apartment in houston for what appears to be a false report. a false report at several levels. tell us how the case got underway. >> on that day in september 17, 1998, which happens to be constitution day in the united states, these three friends, john lawrence, tyrone garner, and robert eubanks, were moving some furniture around. they had finished their work for

the day and wanted to go to a restaurant where they had a few drinks. they came back to john lawrence's apartment where they continue to continued to do some drinking and watching television and so forth. eubanks and tyron garner, one of the two descendents in the lawrence versus texas decision, who was black while eubanks was white, they got into it a fight, orally, perhaps involving some jealousy, and eubanks announced at one point in the evening that he was going to go get a coca-cola 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 a chair in the living room, puts down a bottle of vodka that he had been taken from, goes over to jordan the kitchen, get some change out, and then leaves the apartment to go downstairs.

instead of getting a coca-cola, he, in fact, put that money into a payphone, and he called the harris county sheriff's office, which was the police department in charge of that area, in which john lawrence lived. he reported to the sheriff's office that there was a black man, referring to his partner, tyron garner, going crazy with a gun inside of john lawrence's apartment. at that moment, there was john lawrence and tyron garner and possibly another man, and robert eubanks is on the other floor making this call to the sheriff's department that, of course was a false report, and he was later charged with a serious defense. once that report was made, then it becomes a very high-priority call for the sheriff's office, as it would for any law enforcement agency.

it is a potentially dangerous situation for citizens and potentially dangerous for any law enforcement authorities. a few sheriff's deputies patrolling in the area, immediately turn run their cars and headed into the apartment complex, looking for this apartment and this black man who is supposedly going crazy in a weapons disturbance. the first to arrive on the scene and encounter robert eubanks at the base of the stairs to john lawrence's apartment, and ask him where is the man with the gun? and he pointed up to the second floor at the top of some stairs where there was a landing toward john lawrence's apartment. he was quickly joined by three other deputies in the sheriff's department, and they decided to go together. at that point they go up the stairs in what is called a tactical stack. one behind the other, with their guns drawn, ready to deal with any weapons disturbance that

they might find. they arrive at the top of the landing, and they knock at door. they say, at that point, this is where the story diverts, by the way -- between john lawrence and tyron gardner. they say they knock on the door, and that had the effect of opening it up. they looked inside the apartment, according to them. there was a light on inside of the living room. it was a small two-bedroom apartment. >> they announced twice, sheriff's department, sheriff's department. loud enough for anyone there to here. there's no there is no radio or television on. there is nobody talking and they couldn't hear or see anybody when they looked inside. they say, it is an empty room. they said they were going to search the apartment.

two officers go to the left looking in a bedroom on the side where they ultimately don't find anyone. then the other two officers, the lead deputy who had arrived and she was he was white, and another deputy who was black, went towards the back of the apartment where there was a kitchen area. they are, they say, they saw a man speaking on the telephone right beside the refrigerator and told him to put his hands up, which he complied with, and they checked to make sure that he had no weapons. they secured him. at that point they say that they noticed another bedroom in the back of the apartment a few feet away. still hearing nothing, no voices, no responses, not any one else being seen, the light is off inside of the bedroom, but the door is open. so they can see from the ambient light of the living room, someone into the bedroom. so these two officers out of the four officers, two officers

approached the bedroom door. they have their guns drawn. they are ready to do anything they might encounter. very dangerous situation for them and anyone they encounter. tension is very high. the black police officer arrives first at the door, looks in, and says that he saw john lawrence and tyron gardner engaged in some kind of sexual act. he was not sure when i interviewed him later what it was. he believes that they were having oral sex, which would violate the texas sodomy law of homosexual conduct in texas. seeing that act, so startled him, that he lurched back and jumped back. the officer behind him, who had been the first one on the scene, but at that moment that he must have seen the gun slinger, the person who is threatening people in the apartment with a gun, so

he got into a crouching position and with his gun pointed straight ahead, he maneuvers into the bedroom with the lights go off. he said that he sought john lawrence and tyron gardner on the bed having anal sex, not oral sex. there is a significant difference in what they say they were seen. both of those acts were violated the texas sodomy law. the officers say that they've been told john lawrence and tyron gardner to stop what they were doing until then stand back away from each other. and they would not stop, according to the officers. with guns pointed at them, yelling at them, inside the bedroom finally, one of the officers says that he flipped on the light in the bedroom so that everybody could see everybody very clearly now. and he said that they would still not stop. in fact, he says the john

lawrence turnaround, looked eye to eye at the officer, then look 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 them from violating the texas homosexual conduct law. that is the story the officers tell. they say that that was a violation of the texas law, and it does not matter whether that act occurred inside a home or in a public place. it was a violation either way it if it occurred between two people of the sex. so then they had to decisions to make about what they wanted to do. the first decision was issuing them a citation, as he would someone a traffic ticket for moving violations. it was a class c. misdemeanor, punishable by 200-dollar fine. it is not a jail offense by

itself. not something that you are sentenced prison time for. the police officers had the discretion to issue someone a warning when they demonstrate that kind of minimal in ordinance to law. but the lead author on the scene decided that he was going to issue tyron gardner and john lawrence tickets for having engaged in homosexual conduct. part of that he can get into by -- i have some ideas about that, the other decision that he made was not to issue the ticket, but actually to take these two men to jail. that is what the officers did. they proceeded to take them down the stairs with neighbors watching. john lawrence clad only in his underwear. put them in the patrol car, and took them to jail where they spent the evening.

>> was explained why they made the decision to take these two men to jail? >> the officers, only two of them claimed to have seen any kind of violation of the law by these two men. they said that they simply enforce the law. but these men were violating the homosexual conduct law, and it is not their job, they said, to decide which laws to enforce. they have to enforce all of them. i asked the officers about that a little bit. i asked them, for example, when they patrolled the streets of pierce county, in their jurisdiction, do they ever come across an office at sex couple parked in a dark country lane somewhere engaged in sexual activity. which is a violation of public rudeness laws in texas. much more serious in the texas criminal code.

they said yes, that happens frequently. i said what do you do? and one of the officers say that we make sure that nobody is a minor, we make sure it is not the rape and it is consensual, if it is, if there is no minor involved and if it is consensual, we tell the couple to put your clothes back on, you shouldn't be doing that here. go home. find a hotel or something. but we don't issue a citation. i said well, honestly, you do have discretion on 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 that they were having sex. they have nowhere else to go to. he said well, it was a man and a man. >> what made the difference is that we had two gay men here. the reason for the officers gave archer. they have the power to enforce the law was violated, which i

doubt. but there is probably a reason -- several reasons behind it. that is that the officers very quickly learned that these were gay men and there was gay erotica inside the apartment. john lawrence acknowledged this as the tyron gardner interviews happened for the book. there was a trigger that went off in their mind, triggering a deep-seated antipathy for homosexuals. i think i had a great deal of dealings to do with the decision. then there was the fact that john lawrence was talking back to them. he was calling them storm troopers and jackbooted thugs, telling him he was going to call this lawyer -- his lawyer, and the lead officer did not appreciate being talked to this way. i think they were upset because they had been called on a false premise to this apartment and wanted -- somebody needed to pay

for that. >> i was surprised reading your book. you get the basic facts of what happened in the apartment and how the case went forward. that these two men were arrested for having sex in their apartment. it is shocking that you could be arrested in an apartment for something like that. after reading your book, i got the impression in the sense that none of this was true. but there was a reason to doubt the basic fact that there was sex in this apartment, and the lead officer, you did a very fine job of reporting on him -- this fellow had arrested mothers at school for dropping their kids off at the wrong place in front of the school and taking them to jail. he seems to have a hair trigger as far as he felt insulted of putting a person under arrest. tell us what you learned after

going and doing reporting on what may have actually happened here? >> i did speak to three out of the four officers who were there first on the scene that night. they were quite willing to speak to me. the lead officer was, in particular, very interesting. he was the one who made the basic decisions. he was the priority unit on the scene. he makes the basic decision about whether to arrest for to take people to jail. it was his call. i had people inside the harris county district attorney's office -- the judicial system in harris county, said that no other officer on the force under those circumstances where you encounter people in the home would actually have cited them were taken into jail. but he was the one, and so, in a sense, the gay civil rights movement was lucky in getting him to arrive first. he was the closest to that apartment that night and arrived

first. therefore, he was entrusted with the decision-making authorities. if it had been any other officer in this case, it might never have happened. it was interesting in itself, as you point out, there were plenty of people willing to talk to me, including the judge was the first judge who had jurisdiction over this case. 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? of course, -- in the course of your duties. he laughed. i said why are you laughing? he said well, i have the largest complaint filed in the entire pierce county department. so then i started to ask them well, can you tell me about some of those allegations against you. and he proceeded to regale me with complaints that had been

filed which he said were meritless. but they were nevertheless filed. he was sent to anger management school, sent word back in the jail, taken off the force, which is a terrible commotion for a patrol officer. so he had an extraordinary record and, as i say, it may have been fortunate to the gay civil rights movement that he was the first to arrive on the scene. >> didn't you say that when the officer stopped them and they were unpleasant, he took a different view, and i assume, john lawrence was quite unpleasant when this fellow -- this officer and the officers burst into his apartment. because he didn't know anything about the suppose it man with a gun. >> right. you have john lawrence and tyron gardner, according to john

lawrence when the police came, he was sitting on the couch, and tyron gardner was back in the kitchen area, which was visible from the front door at the back of the dining room table. as much as 15 feet apart. they were not having sex. they had never had sex. the police burst in and start questioning them about who has a gun. for them, it comes out of nowhere. he reacted to quite -- quite angrily. he had been drinking, heat knowledge that. he was engaged in his own form of civil disobedience. as i say in the interview, it was about six months before he died, he told me about what happened. the police had bald-faced lied about these two men having sex. that is part of what drove him and i think tyron gardner -- that's part of what drove them to challenge the rest, which they ultimately decided to do

after some persuasion efforts. >> yes. the story gets more interesting as it goes along. it is the case, isn't it -- john lawrence and tyron gardner was to prefer to plead not guilty and say this was a totally false report. we were not having sex, the police burst in, got angry at us, and drive us off to jail for something that we didn't do. on the other hand, the gay rights lawyers, i take it that the view was that these laws were still on the books, so they made the strategic decision to have them encourage or persuade john lawrence and tyron gardner who pleaded no contest but assume the fact and then challenge the laws? >> that's exactly right.

john lawrence and tyron gardner were taken to jail that night from the apartment. they were put into orange jumpsuits and put into the jail, just as anybody would be if they were arrested for public intoxication that night. the next morning, they are sent in front of a judge without any representation. at that point, they have to enter an initial plea, and the initial plea, their choice was to plead guilty -- to plead no contest or not guilty. at this point, they haven't talked to any lawyers. they have actually been charged for the first time with having sex with each other. from their perspective, if they weren't actually doing that, it was a bald-faced lie. they were stunned by this. they pled not guilty. we did not do this, we are not guilty of this offense. they have not been involved in

any gay civil rights efforts or contributed to organizations, they were just people leading leaving their lives. their inclination was to fight it. maybe they would end up paying fines, but they had a sense that an 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 house of those attorneys is an interesting -- it is an interesting story of how it got into the hands of these attorneys. they had a meeting and the gay rights groups became involved. they said here that three options. you can plead not guilty and these officers can be put on the stand and we can ask them to recount this tale of sex that they say happened, and we will see what happens, my guess is that they would've been

acquitted if that had taken place. or it you can plead no contest or plead not guilty, and there is not much of a difference in terms of not guilty and no contest. they pled no contest, meaning that the only facts ever made their way up to the courts were facts alleged by the police. the complaint that was filed by the lead deputy that night who said that we entered the apartment, we saw them violating the texas law, there was never any witnesses or cross examination or anything like that, except with the what the state says happened, and then you say, if everything they say is true, nevertheless, the rest is unconstitutional, because it violates their constitutional rights to rest them under those circumstances. in a meeting that they had with the lawyers come in the lawyers explained with the importance of this case was. it was not just about them.

this sort of thing could happen again. it had happened in the past. these laws have a larger effect that we described earlier on millions of americans. that meeting occurred in mid-october of 1998, which was you may remember, when matthew shepard was left to die on a fence in wyoming. he really a really captured the nation. all of this is going on, at the same time, and they were persuaded -- john lawrence and tyron gardner were persuaded that there is a larger cost here than just for them. >> they were sort of taking one for the team. they were committed to something that they say did not happen, instead of pleading guilty to something they did not do is a real way to challenge it.

and a lot of other jurisdictions, i would've thought that the case would've gone away from the prosecution. they went to press this case. in the end, the texas prosecutors and courts were not willing to let the case go away? >> yes, in fact, the gay rights movement was blessed in this case, so to say, it was also fortunate in that it has a set of prosecutors and district attorneys and judges, ultimately, who would not dismiss the prosecution. i think the harris county county office was -- harris county attorney's office was backed into a corner.

they have fairly conservative views on social issues. once this matter got into the newspapers that these two men have been arrested, they were going to challenge the constitutionality of the texas law, it became very cool politically typical -- they were quoted in the paper as saying and equivocating on the case, 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 books to enforce it. 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 closeted lesbian at the time. she could have dismissed the prosecution were asked the judge to dismiss it, but she did not

do so. she was required to allow the case to proceed, and she did not have any discretion in the matter. >> in the income in the state was willing to defend the law? >> when we take a quick break. why don't we take a quick break. >> on the go? "after words" is available on podcast and xml. select which podcast he would like to download, and listen to "after words" while you travel. >> so the decision to charge john lawrence and tyron gardner, in the states willingness to defend their laws that seemed vulnerable, to accept this case on the road up to the courts, can you tell us about the history of the laws? on the one hand, it seems like

it has a very long history, but i read in your book that it has somewhat of a recent history. in the 1970s, they were much more targeted at gays and lesbians. >> that is exactly right. sodomy laws in general prohibited at one point all nonmarital or procreating sexual acts. he goes back hundreds and hundreds of years in the west end goes back to england and the colonies and every state. in fact, every state had some version of a sodomy law as of 1960. in a sense, as the supreme court said in bowers versus hardwick, these were sort of ancient laws, as you could call them. in bowers versus hardwick, they do not have a very deep or sophisticated understanding of these laws. they were not laws that were targeted on the face.

they targeted both heterosexual and homosexual non-pro creators and sexual acts like oral sex. in every state as well, until the late 60s and 70s, that is precisely the way they were written. >> in the mid- 1950s, some very influential legal authority scholars in both the united states and england, suggest that a number of archaic sex was be removed. sodomy laws were among those period that began the process by which the states began repealing their state's sodomy laws. that process proceeded through legislature and state courts for a period of four decades -- more than four decades. at the same time, some states held onto the laws, and others like texas, got rid of all of their archaic laws and kept the

sodomy law and narrowed it and specified it so that it applied only to -- deviant sexual intercourse, as it was called in texas -- only applied to homosexuals debtsmac. at the same time texas did that in 1973, narrowing the definition of just targeting gay people. it decriminalized things like adultery, which had been criminal in texas before. it decriminalized and the law that was called seduction on promise of marriage. the couple of others. and it decriminalized bestiality. as of 1973 in texas, you could legally have vexed with another species, but not with another person you were committed to and in love with if they were of the same sex.

that was a remarkable maxim which that texas was sending. i have never heard of a traditional morality which allows interspecies sexual acts and heterosexual sodomy, but not homosexual sodomy. it was a very selective view of the law. >> it appeared to be a reaction to the early years of the gay rights movement -- that the gay rights movement was just getting underway in houston and texas and to some degree this was a backlash? >> that's right. really in the 1960s with women's rights and with the sexual revolution of the united states in general, there was a backlash. the gay rights movement began the modern phase -- the modern phase of the gay-rights movement began in the late 1960s and especially in 1969 in new york city where there is a backlash

against the police who were shutting down the bars. that spread across the country, including into texas, where gay-rights groups began to form. this was early on in the 1970s. fledgling white groups. sodomy laws were an attempt, i suppose, to hold up as much traditional morality is the state ought to audit can hold onto. but certainly not give any ground to gays and lesbians, and, in fact, there was some debate over whether the law should subject gay men to prison, and some texas legislatures revisited that because punishing gay men in prison was not a punishment. but they would actually enjoy being in an all-male environment. this is the kind of thing that texas legislators were saying. they were saying this about gay

people. the gay-rights movement did get going. it got going in a number of cities across texas, including houston, and enjoyed some early excesses of the late 1970s and early 1980s. then it got panned down in a referendum on a very narrow civil rights movement protecting gay city employees of houston, in january 1985, that in itself was an example of the backlash against gay-rights. there was a great deal of resistance in texas. every year the legislature refused to repeal the law, even though it was asked to do so. the texas courts turned away any challenge to the law by saying that nobody has been arrested. >> so what happened with tyron gardner intrinsics? they were prosecuted, how did it move up through the courts? >> the story begins from the moment that they are arrested.

joseph quinn, the lead deputy in the case, filed his charges. those go into the justice of the peace corps, because it is a classy misdemeanor -- class c. misdemeanor. there is no sodomy law alert that goes out to the world, telling gay-rights activists that somebody at some jurisdiction somewhere in the county has been arrested. it very easily could have ended right there, and they might've just paid their fine after they have gotten over their anger, or they might have paid a defense attorney that didn't care about them but wanted to collect a fee. the reason it got into the hands of gay rights advocates is that the judge, who is the judge's

court where it landed -- he is a gay man. he saw the court is come in the next morning, and he saw the officer who had done it, and he knew immediately something was wrong. this officer was well-known in the jurisdiction. he saw the charge, a sodomy law, which he did not even know was an offense in texas and could not believe there was such a charge. when he tried to look up the code to enter into the administrative system, the judge didn't have a code. there was no code for the offense, unlike most of the offenses that they found. he had to go and look it up. he might've had to make one up to allow it to be entered. >> i was surprised that there was such a criminal charge in 1998. homosexual conduct. i take it people in the court system had never heard of it? >> no one that i spoke to in the case, except for one activist

they used to, and i have never heard of anybody interested on this kind of charge -- it's quite unusual. he told his partner, partner tenures at that point, he was actually a supervisor over the lead officer, he began to see connections all over this case. it is a small judicial world down there. his partner was a closeted official sergeant in the sheriff's office. he told his partner about it and he they couldn't believe it. but they had no inkling that this was a matter of constitutional dimensions. that night, the night after these men had been arrested, they talk about it and they go to their weekly trip down to the gay bar in the middle of houston, where they are gossiping with the bartender. they tell the bartender, guess what we saw -- someone he was arrested for sodomy last night. and the bartender happened not just to be a person who was an

expert in the pouring of martinis, but was also a gay-rights activist. once he heard of this, he immediately thought that this is the case we have been waiting generations for. it could go to the supreme court. he wasn't an attorney, but he knew it had potential coming given the fact that they were arrested at home. then he got in contact with lawyers who began pursuing the case in the texas courts. initially, unsuccessfully. >> in the texas courts? >> 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 1998. the justice of the peace had no power to strike down the texas sodomy law, so he fined them

$100 each, i think, they went back and said holy cow, $100 is not enough for us to be able to appeal. they thought that they were advised that they had to pay more than $100 to be eligible to appeal your conviction. they ended up going back to the judge and asking for a higher fine on their client, -- >> a higher fine? >> yes, we would like to be charged a higher fine come in the prosecutor agreed. so they go back to the judge and he is surprised that they are asking for higher punishment -- defense council asking for more punishment. i think it was $20 each, and then the defense attorneys proceeded to the county criminal court, where again the charge didn't have much -- the judge didn't have much power to overturn the sodomy law.

that went to the intermediate courts in texas, which is a couple of steps below the supreme court of the united states. there, they confronted three partisan elected republican judges. from very conservative areas. they were warned, you don't have a chance of one of these judges. you'll never win. he will not listen to anything that you say and you have a rough time in the argument. it turned out that they were quite surprised. 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 equal rights amendment, which prohibited discrimination on the basis of sex. whether or not you are punished depends on the sex of your partner, if you are intimate with them. very straightforward case. they ended up ruling that way -- it was a chairman tremendous --

determined this political backlash occurred, occurred in the state of texas. the state convention issued a resolution rebuking them and calling them to reverse their decision. the full intermediate court in texas did in fact reverse the decision quickly. >> did the texas supreme court hear the case after that, or just he refused refuse to hear anything else? >> in texas, there is an equivalent of two supreme court. one for civil and one for criminal matters. the case actually went to the court of criminal appeals, which sat on the case were a year, saying nothing, not even whether it would consider the issue or order any briefs to be filed or oral arguments -- after that he

was over without any explanation, the court said we are not going to hear this matter. that your past. once that decision was made, the only next step was the united states supreme court. >> that is where the book focuses on the beginning? >> there was in this case is going to go as high as the united states supreme court. interestingly, if they had prevailed, among the two judges who ruled for them in the texas appeals court, they would not have gone to the supreme court in this case. >> there are so many oddities of that sort, paying the extra fine -- all along the way it has been amazing in its own way how it got there. nonetheless, the supreme court justices were very aware of this issue. they knew dollars versus hardware. they or -- they file the

position and somewhere in 2002 or 2003, the court granted that position? >> yes grade in the fall of 2002, the supreme court granted the petition to hear the case. >> there were two issues presented. one was a liberty privacy claim. the other was the equal protection claim that gays and lesbians are being denied equal protection at a loss. these laws were clearly discriminatory. the first claim was a liberty privacy issue, bowers versus hardwick. i think a lot of us who cover this, think that the likelihood of that courts would be to take up the case and focus on equal protection. instead, they focused on the liberty privacy point.

tell us what is the significance of that, and why that was -- i don't know, did you expect that that is the way that they would handle the case a max. >> i did not expect that they would take up the liberty and privacy claim, as you put it. i think most of the attorneys thought that if the court were going to overturn the texas sodomy law, it will be on the grounds of equal protection. the basic difference between the two arguments is the privacy or liberty, the fundamental argument says the government has no place in your bedroom and can tell adults what to do with their own intimacy. the equal protection or equality argument says that if the government decides to come in and decides to tell people what to do in their bedrooms, it has to do the same for everybody, it cannot just let a small group of people, 3% of the population, and tell them that they can do this but the 97% 10. based on the fact that the court had decided this issue 17 years

before on the liberty and privacy grounds, and said at the time that those arguments were, at best, facetious -- facetious against the litigants in case, there was great sense that the court would not rule on those grounds but would go on this other brand. that is important. if the court had just decided the case on equal protection grounds, then it would be issuing a decision in which yes, it struck down the sodomy law, but it allowed the bowers versus hardwick decision to stand, which had been so much damage in the law. second, it would defame the state -- it would be saying to the state you can have a sodomy law, but you have to apply to both hetero and homosexual relationships. while that appears equal in some sense, everybody thought that this is the kind of thing that

homosexuals do. people didn't understand that it applies to heterosexuals as well. it would've been, in some ways, a disappointment, although in other ways, it might have been significant in itself. what joined these two arguments, though, the liberty and privacy argument and equal protection on the other hand, is the basic narrative that the legal attorneys sketched out for the case, 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 gays and lesbians and intimate relationships. that is something that the supreme court did not see back in 1986. but they did see it in 2003, and framed the case precisely that way. they wanted to show the court that striking down the texas

sodomy law, they would not be leaving the nation, they would be following the nation. most states have left these laws long behind. there were only 13 states that still have them, and they were almost entirely unenforced against. especially in regards to try that sexual activity. they did not want to scare the court to think it was leading the nation into new, uncharted territory. so that was the narrative. it was extremely effective. it shows throughout justice kennedy's opinion, in his references to the importance of sex and the intimacy and an adult's life, and in so far as it helps to build relationships. >> i can't think of another area of the law where the public mind has changed so much in 20 years. the court was different in 2003 than it was in 1986. the whole country was different.

>> i remember at the time at the 1986 decision. even then, people thought it was a little bit extreme. but the court upheld the laws in 1986. but by 2003, it seemed like something from another era that that could exist, that people could be arrested, taken to jail for conduct in their own apartment that threatened no one or hurt no one. it seems like the whole country and the law had changed. as you know, when the court decided that case, there was still a very sharp division within the court. it ended up that six of the justices voted to strike down the texas law. there were three who did not. tell us about the divide in the court on that. >> at the end of the day, first of all, you are quite right to

note that there was a huge shift in the court and country between 1986 and 2003. in 1986, injustice actually sent to a clerk that i don't know any gay people because i've never met any gay people. it turned out that the clerk he was speaking to was in fact a gay man. in 2003, paul lindner was about to deliver his oral argument to the court, and it was whispered in his ear that the justice on the bench had set a baby shower gift to a gay couple. it was sweeping change across that time. those two views offer those examples. but there was still a sharp divide on the court. the opinions are fractured, in some sense. justice kennedy rules for the grounds of liberty and privacy. justice o'connor, who had been

on the majority of bowers versus hardwick, was on equal protection grounds, which is what many people bought the court would do in this case. she provides the six vote. and you have three votes in the minority justice -- justice scalia and justice thomas -- justice scalia says basically that the court had taken sides in the culture war. it is not behaving in a fashion that can be tied to the constitution in any way. that is will mean a slippery slope to things like bigamy and widespread obscenity and he said gay marriage. justice thomas writes for himself, saying that while he believes these laws are uncommonly silly, to use his expression, and if he were a texas legislator, he would vote to repeal these laws.

he is a judge and not a legislator. there is nothing in the constitution protecting the right of privacy. so he provides the third boat. >> it is so fascinating. the kennedy and scalia division on this -- remember that ronald reagan appointee is in the mid- 1980s? both of them catholics, born in the 1930s, had some similar backgrounds. on these types of things, criminal cases, corporate cases -- the culture war cases -- justice kennedy always seems to be very much of a california republican. he has really different instinct than justice scalia. justice scalia was, i remember, reading his opinion. it was just a stark divide. kennedy spoke about the importance of -- the importance

of giving respect and dignity to gays and lesbians, but their relationships deserve the same respect and dignity as other relationships. it was such a sympathetic portrayal, and so much in line with what he said. the importance of relationships for gay couples. this is not a sex case. this is a case about relationships. after he finished, justice scalia cut through the air without very strong dissent. i wanted to mention that he did make his point. don't be fooled by what anyone tells you. this is going to be about marriage and same-sex marriage. to that extent, justice scalia production has turned out to be largely correct in the years since then. >> yes, quite possibly he was. certainly, we will see what the court does what marriage and

gays if it takes a marriage case. which it has discretion to decide that. but he did say in his dissent that he had -- but the court had taken out the constitutional substructure, the basic underlying principles that allowed the state to distinction between heterosexual marriages and marriages for gay people. he said if we can't legislate on the basis of grouchy, that heterosexual marriage is -- if we can't legislate on that basis, then how can we distinguish among gay and straight couples? we can't do it because one set of couples can't procreate, because we allow older people and sterile couples to get married and he said there is no rational reason left to prefer one. i would guess that when the case comes up, and as it is now

moving up through the lower courts, the gay-rights litigants are going to be referring to justice scalia's comments as to having undermining gay couples for marriage. >> it is in the subset to -- that whoever writes the majority opinion of same-sex marriages will be deciding the larger case. justice justice kennedy's praises about the importance and dignity and respect of gay and lesbian couples. >> i think both sides will draw on justice kennedy's opinion. you can find support for both opinions, but i'm quite certain that many are for his opinion. the dignity of gay americans and the importance of relationships to them will find a way into an opinion. we are going to go -- we have a

couple of minutes left. i would like to ask you, you did a lot of reporting on this. you talk to john lawrence and tyron gardner. both men have passed away in the last couple of years after the case was decided. tell us a little bit about john lawrence and tyron gardner. >> they both grew up with a humble background, not much education. tyron gardner was one of -- the 10th of 10 children in a black baptist family. he never had a permanent home, never had a permanent job, never owned a car. he shifted from house to house. john lawrence did have a steady job as a medical technologist, but neither he nor tyron gardner were ever involved in any kind of civil rights movement for civil rights causes until this case came about. tyron gardner died in 2006, about a year after i interviewed