Until 2003 it was illegal to have intimate relations with someone of the same sex throughout much of the U.S. It was in that year the Supreme Court case ruled in Lawrence-v-Texas. John Geddes Lawrence and Tyron Garner were not ideal plaintiffs. Their story began in 1998 when one man, jealous that his male partner was friendly with another, called the police outside Houston, Texas. The officers who arrived at Lawrence’s home that night claimed they saw him and Garner having sex. The case could have been settled, but gay activists sensed victory. Diane and her guest discuss how a bedroom arrest became a landmark case for gay rights in America.

Guests

  • Dale Carpenter professor of civil rights and civil liberties law at the University of Minnesota Law School.

Program Highlights

Lawrence v. Texas has been called the most important Supreme Court decision on individual rights in half a century. A civil rights attorney has written the story behind the landmark Supreme Court case. It deals with sexual privacy, personal dignity, intimate relationships and shifting notions of family and America.

Case Background

Until Lawrence V. Texas, the state had a “homosexual conduct” law that forbade certain types of sexual intimacy, Carpenter said – but only between persons of the same sex. Opposite-sex couples could legally engage in the same activities. The law was used in Texas and around the nation, along with similar laws, to discriminate against gay men and lesbians, Carpenter said.

The Origins Of The Case

Police received a call in 1998 about a disturbance involving a man with a gun in an apartment outside of Houston, Texas. Several responding officers said they saw some kind of sexual activity going on between two of the men in the apartment; others said there was no sexual activity going on; and the two men in question, John Lawrence and Tyrone Garner, denied that anything sexual had happened. Based on his interviews and research, Carpenter believes Lawrence and Garner.

How Did The Case Reach The Supreme Court?

“You’re looking at this from the 3,000-foot view. I think it went up all the way to the Supreme Court because on the one hand, the prosecutors in Harris County had no interest in challenging the word of their own police officers, who I believe did not see any sex, but one of whom did report having seen sex. And because I believe gay rights attorneys saw a golden opportunity that comes along maybe once in every generation to take the police at their word, do not hold a trial, so do not challenge the factual basis for the arrest, but challenge the constitutionality of the law on the grounds that the state has no business in the bedrooms of consenting adults and that’s exactly what they did,” Carpenter said.

Changes On The Court Itself

Carpenter believes the Supreme Court ruled the way it did in the 2003 case because of both societal changes and changes on the court itself. For example, in the mid-1980s, it was possible for Justice Powell to say, “I never met a gay person,” Carpenter argued. But in 2003 it was not possible for any justice to say the same. And there had also, by 2003, been huge changes in American society regarding attitudes toward homosexuals. “There was over time a much greater respect for the idea that people should not be judged on the basis of their sexual orientation. Their individual merit did not depend on whether they were gay or straight,” Carpenter said.

You can read the full transcript here.

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Lawrence v. Texas has been called the most important Supreme Court decision on individual rights in half a century. A civil rights attorney has written the story behind the landmark Supreme Court case. It deals with sexual privacy, personal dignity, intimate relationships and shifting notions of family and America.

  • 11:07:24

    MS. DIANE REHMThe book is titled "Flagrant Conduct" and Dale Carpenter joins me in the studio. I would caution you there are some sensitive issues we'll be talking about in this hour so perhaps if there are young children around, this should not be a subject for them. But do join us, 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or Twitter. Good morning to you, sir.

  • 11:08:02

    PROFESSOR PAT CARPENTERGood morning.

  • 11:08:03

    REHMGood to have you here, Dale. Talk about the title of the book, "Flagrant Conduct" and exactly what it means in regard to this case.

  • 11:08:16

    CARPENTERWell, flagrant conduct has sometimes been used to refer to the conduct and the lives of gay men and lesbians and so the title of this book actually is a play on that epithet and instead refers to the actions of the police, the actions of prosecutors, the actions of courts, the actions of the State Legislature in criminalizing and under the Texas Criminal Code, not just conduct, but the very lives of gay men and lesbians in the state.

  • 11:08:56

    REHMHelp me to understand the background of the case.

  • 11:09:00

    CARPENTERWell, the background of the case is that Texas had a homosexual conduct law, so-called, which forbade certain types of sexual intimacy, but only between two persons of the same sex. It did not forbid similar intimacy between other persons, opposite sex couples. And in fact, Texas had decriminalized, at the same time, bestiality and adultery and seduction on promise of marriage, all of the archaic laws, but left in place this one prohibition.

  • 11:09:34

    CARPENTERAnd that law was used in a number of ways that we could talk about in Texas and around the nation, similar laws, to discriminate against gay men and lesbians. But when police happened to, on occasion, encounter them, to arrest them for violating this criminal conduct code.

  • 11:09:54

    REHMGive me an example.

  • 11:09:56

    CARPENTERWell, an example of laws applying in other areas beyond sexual conduct would be that police departments would refuse to hire gay men and lesbians because they were not good examples for law enforcement. The schools would refuse to hire gay teachers because after all, they could be considered a presumptive criminal class and therefore should not be in the role model, the model for children. People were denied housing because landlords said, we won't rent to law-breakers, denied employment across the board.

  • 11:10:34

    CARPENTERIt was used the presumptive criminal status of gay men and lesbians was used as a justification for banning gay people from the military. It has been used to deny a marriage to gays and lesbians, used to deny civil rights protections, anti-discrimination protections across the board, used to deny custody to parents, used to deny visitation or limit visitation that people had with their own biological children.

  • 11:11:02

    CARPENTERThere was no area of the law that was left untouched by these so-called conduct laws that, in fact, as I say, stigmatized the very lives of gay men and lesbians.

  • 11:11:13

    REHMSo in particular, the case of Lawrence v. Texas?

  • 11:11:20

    CARPENTERIn this case, there was a report from one of three men who was in an apartment one night back in September of 1998. It happened to be Constitution Day, September 17th, that two men were going crazy with a gun, a black man, he said, was going crazy with a gun inside of the apartment.

  • 11:11:44

    CARPENTERHe was apparently, we know now, jealous that his partner, his boyfriend inside the apartment, might have been flirting with the other man and was trying to get him in trouble. The police believed, therefore, that there was a weapons disturbance and that is the very highest kind of alert for the police. And they arrived and went into the apartment with guns drawn and all of that is pretty much agreed upon, based on the interviews I did.

  • 11:12:11

    CARPENTERBut then, the stories diverge wildly. The police say, two of them at least, say that they saw some kind of sexual activity going on between the two men in the apartment, John Lawrence and Tyron Garner. And John Lawrence and Tyron Garner themselves say that they were not engaged in any sexual activity.

  • 11:12:29

    CARPENTERAnd based on my interviews and research, I believe that John Lawrence and Tyron Garner were correct, that they were not engaged in any sexual activity and that the police, nevertheless, arrested them for homosexual conduct, took them off to jail and then there's an entire story about how they ultimately got to the Supreme Court.

  • 11:12:47

    REHMThat took how long?

  • 11:12:53

    CARPENTERThe progress from the apartment to the Supreme Court took about, not quite five years, four and half years.

  • 11:13:01

    REHMAnd in the interim, how much time did either or any of the men spend in prison?

  • 11:13:11

    CARPENTERBoth Tyron and John were sent to prison for the night. They were let out the next day. They pled not guilty. This is before they had a lawyer and they were allowed to leave. In Texas, it was a crime, a Class C misdemeanor, like a speeding ticket, punishable by a fine of up to $200 per offense. And so there was to be a trial, if that's what they insisted upon...

  • 11:13:39

    REHMBecause they pled not guilty?

  • 11:13:41

    CARPENTERBecause they pled not guilty and they went back home. And the one man who made the false report because there was no gun inside the apartment that night, actually spent two weeks in jail for making a false police report and then he was subsequently let go. But John and Tyron spent one night in prison and then went home and there the case could have stayed.

  • 11:14:08

    CARPENTERThere was no necessary connection to any gay rights attorneys or organizations. They had no history of involvement in gay rights. They were in the lower scale of economic, working-class people in a working-class neighborhood in Houston and so there was no guarantee that this case would make it to the Supreme Court or to any court.

  • 11:14:33

    REHMWhy did it go all the way up?

  • 11:14:37

    CARPENTERI think it went up all the way. You're looking at this from the 3,000-foot view. I think it went up all the way to the Supreme Court because on the one hand, the prosecutors in Harris County had no interest in challenging the word of their own police officers, who I believe did not see any sex, but one of whom did report having seen sex. And because I believe gay rights attorneys saw a golden opportunity that comes along maybe once in every generation to take the police at their word, do not hold a trial, so do not challenge the factual basis for the arrest, but challenge the constitutionality of the law on the grounds that the state has no business in the bedrooms of consenting adults and that's exactly what they did.

  • 11:15:26

    CARPENTERSo neither side had an interest in ferreting out the background facts, they wanted to proceed on the basis of the facts as they were alleged in a 69-word affidavit filed by the police officer that night and that's all that the Supreme Court ever knew about the case.

  • 11:15:42

    REHMDale Carpenter is professor of civil rights and civil liberties law at the University of Minnesota Law School. His new book is titled "Flagrant Conduct, How a Bedroom Arrest Decriminalized Gay Americans." If you'd like to join us, give us a call 800-433-8850. Send us your email to drshow@wamu.org. I look forward to your postings on Facebook and your tweets. Prior to this particular case, you had a case Bowers v. Hardwick that did go to the Supreme Court. Explain what that was all about.

  • 11:16:42

    CARPENTERWell, that case involved a Georgia, so-called sodomy law, of which there were about half the states in the country, back in the 1980s, had such laws. And it started with a claim by the police that they had seen two men engaged in sexual activity. The police subsequently dropped the criminal prosecution, but Hardwick sued civilly saying that his civil rights had been violated. And he actually ended up losing in the Supreme Court in 1986 in a very close, five to four, vote from the Supreme Court, which said that arguments for a fundamental right to engage in what the court called homosexual sodomy were, at best, facetious.

  • 11:17:29

    CARPENTERAnd one of the most memorable moments in the history of that decision is when Justice Powell was speaking to one of his law clerks at the time and said, I really don't understand gay people because I've never met one of them. Well, it turned out that the clerk he was speaking to was gay and in the closet and the clerk debated whether or not to come out to Justice Powell and whether that might make a difference. And in the end, he didn't.

  • 11:17:54

    CARPENTERAnd Justice Powell ended up voting in the five-Justice Majority and then a couple of years later said he'd probably made a mistake in that vote. That correction, though, did not come until Lawrence v. Texas in 2003 when the Court changed its mind and said, these aren't facetious arguments, these are convincing, fundamental rights arguments.

  • 11:18:17

    REHMSo something happened dramatically between 1986 and 2003 and we'll be talking about that when we come back. Dale Carpenter is my guest, he's professor of civil rights and civil liberties law at the University of Minnesota. His new book is titled "Flagrant Conduct."

  • 11:20:05

    REHMAnd the book we're talking about "Flagrant Conduct" by Dale Carpenter will be on the cover of the New York Times Book Review this Sunday. And we're talking about what happened to the Supreme Court's thinking about homosexuality between 1986 and 2003. What did happen, Dale?

  • 11:20:37

    MR. DALE CARPENTERI would say there were two developments that happened in tandem. On the one hand you had huge changes in American society and in attitudes toward gay men and lesbians. There was over time a much greater respect for the idea that people should not be judged on the basis of their sexual orientation. Their individual merit did not depend on whether they were gay or straight.

  • 11:20:59

    MR. DALE CARPENTERAnd those changes were reflected in numerous ways through the adoption of antidiscrimination laws and through the election of openly gay people to office. And in a couple of court decisions including one where the Supreme Court struck down an antigay law of Colorado that tried to strip gay people of all protections.

  • 11:21:20

    MR. DALE CARPENTERAt the same time in tandem were changes in the court itself, in the personnel of the court and the court's own personal knowledge of gay people. It was possible in 1986 for Justice Powell to say, I never met a gay person. It was not possible by 2003 for any justice on the court to say, I've never met a gay person. Right before he began the oral argument, Paul Smith, who argued the case in Lawrence v. Texas against Texas, against the sodomy law had it whispered in his ear that Justice O'Connor had just sent a baby gift to a former clerk of hers who had just had this child with her partner.

  • 11:22:01

    MR. DALE CARPENTERThat to me -- the distance from Justice Powell's statement to that moment in 2003 is a chasm of change in the country. It represents a tectonic shift in the way that we treat and think about sexual orientation.

  • 11:22:18

    REHMWhy do you believe that gay rights attorneys really wanted to push this particular case?

  • 11:22:27

    CARPENTERWell, this particular case was very rare. It was very rare to have police claim that they saw two people in a private place having sex in violation of the law. If you...

  • 11:22:39

    REHMA private place.

  • 11:22:41

    CARPENTERExactly right. They were in a home, according to the police, in a bedroom. It's not as if they were out in public somewhere. They were in the home. And those kinds of cases were almost never prosecuted. I talked to the Harris County DA who prosecuted this case and he said that based on his conversations with sheriff's deputies in the county, most of them said they would not have arrested someone in that circumstance. They might've said, you know, get dressed, we're looking for a gun and just completely avoided it.

  • 11:23:14

    CARPENTERThese police officers, at least the lead police officer did not do so. And in effect that was a huge gift to the gay rights movement.

  • 11:23:22

    REHMDid someone open the door to allow the police in?

  • 11:23:28

    CARPENTERNo. What happened is that the police went up the stairs to the apartment in what's called a tactical stack with four officers right in back of each other and with their guns drawn ready for a potential conflict with a person they thought had a gun and might shoot them at any moment. It's a high danger situation. They knocked on the door, they said, and heard nothing in response. They pushed the door open and announced that the sheriff's department was there, shouted it twice.

  • 11:23:56

    CARPENTERAnd my thinking at that moment is, if you're engaged in any kind of intimacy the moment is over. You're going to stop what you're doing and it's not very difficult to do so.

  • 11:24:05

    REHMYou bet.

  • 11:24:06

    CARPENTERSo they said that they did that, but nevertheless, they said they checked out a bedroom and found nothing. They arrested someone by the refrigerator and he had nothing. And they eventually made their way to this back room where two of them say, with guns drawn, that they saw these men having sex and that the men would not stop even with guns drawn, lights on, people shouting at them to stop. It's an incredible story that I think really stretches common sense beyond any boundaries and would not have been accepted by a jury.

  • 11:24:46

    CARPENTERAnd that was the key. There was no jury. The case was accepted on the facts as alleged by the police. Almost never would anything like this happen. Texas said before 1994 had never arrest the people in those circumstances. I think that's untrue. I think there were people arrested and that most of them gave up whatever challenges they would've had because of shame.

  • 11:25:08

    REHMYou know, it's interesting that there were some high-powered lawyers who tried to get Lawrence and Garner to stop saying they were not guilty and instead to plead no contest. Why was that?

  • 11:25:30

    CARPENTERWell, you could, in a sense, win the case and lose the cause. You could win the case in the sense that Lawrence and Garner could easily, I believe, have proved their factual innocence, that they never committed this crime. But that would leave in place the stain and stigma of a law that after all allowed the police to walk into an apartment and, if I'm right, arrest two men for doing nothing. Instead for simply being gay and for having police officers who thought that was offensive and should not be permitted.

  • 11:26:06

    CARPENTERSo the cause was to get that stigma removed. And the men themselves, John and Tyron saw themselves as part of that cause. They came to see themselves as part of that cause.

  • 11:26:17

    REHMIt must've taken them a while to understand that.

  • 11:26:22

    CARPENTERIt did take them a while. They had no familiarity with the gay rights movement. John Lawrence, when he signed up for the navy in 1961, saw a question on the form that said are you a homosexual and he looked at his friend and said, what is a homosexual? So they had no familiarity with highfalutin ideas of gay rights or anything. They just wanted to live their lives and the police wouldn't let them.

  • 11:26:45

    REHMWell, and I want to ask you about the police and similar laws to those that had been in play in Texas. Were there other laws? Surely Georgia at -- in 1986 had that same kind of law. But from 1986 forward did other state laws similar to that disappear?

  • 11:27:14

    CARPENTERYes, they did. So in 1986 there were 24 states that had these so called sodomy laws. By 2003 when the court decided Lawrence v. Texas that had been whittled down year by year and state by state to 13 states. And of those 13 states only four of them applied solely to homosexual conduct. So you had a decline over time in support for these laws, a removal of these laws through legislative action and through a state court judicial decision.

  • 11:27:47

    CARPENTERAnd so the trend was clearly away from these laws. And when the laws were on the books even in the states they were not ordinarily enforced in the way they were written. That is, they were rarely enforced as a way to arrest people for having sex in the privacy of a bedroom because the police, as we say, are seldom there. But they were enforced every day in the lives of gay men and women across this country when they applied for jobs, when they wanted civil rights protections, when they wanted to find a home to live in.

  • 11:28:18

    REHMAnd what about the police force in Texas itself?

  • 11:28:25

    CARPENTERThat is a very instructive example, I think, of a way not to conduct law enforcement. There were two sort of parallel police forces in the area. One was the Houston police department which had training for its officers not to call people by antigay slurs and epithets when they would go into a person's home and to respect people, even people who were gay. That training was done by, among others, the current mayor of Houston 20 years ago. Her name is Annise Parker. She's the current mayor.

  • 11:29:00

    CARPENTERAnd the Harris County Sheriff's Office, which was actually the other police department for the area that was involved in the arrest of these men refused to allow that training. Never trained the officers and it had a culture of kind of machismo and antigay attitudes that were prevalent. There were no openly gay officers on the force in the Harris County Sheriff's office. There was no training, no nondiscrimination policy. So in a way, what happened in this case was a product of the very culture that was fed by this law. The law ultimately undid itself.

  • 11:29:40

    REHMWell, by the time these arguments got to the Supreme Court, you were sitting there and you were watching. Talk about the scene.

  • 11:29:57

    CARPENTERIt was about as anxiety-filled and dramatic a scene as I can remember. It was an honor to be in the court then. It was packed with people. The court is a very grand space but it's actually kind of small given what you might expect. It's not a huge hall so you can easily watch the justices. You can see the expressions on their faces. You're very closely packed in with a lot of other people. The audience was packed with incredibly knowledgeable advocates, mostly gay rights supporters, law students, professors, lawyers who had given their lives, their professional lives many of them to this cause.

  • 11:30:37

    CARPENTERAnd so a lot was on the line for them and for millions of people around the country. The justices treated it with a seriousness that befit the occasion. And the lawyers, at least on the side of Lawrence and Garner, were as prepared as one could possibly be. Paul Smith who was the person -- the man arguing the case in front of the Supreme Court was a former Supreme Court clerk as I mentioned. The briefs were reviewed by many former Supreme Court clerks. There was as much preparation as there could possibly be at that moment.

  • 11:31:10

    CARPENTERAnd what I always think of when I think back to that day is that Paul Smith walks into that room with the force of 400 years of history standing in front of him and has to make an argument for the basic dignity of gay and lesbian Americans. And do so with the added psychological burden of having been a clerk for the very justice 17 years before who had voted to uphold these laws. So he has a historical burden, he has a constitutional burden and he has a personal burden. And all of that comes together for as about as great an argument as we have seen in the Supreme Court filled with interest.

  • 11:31:52

    REHMAnd what then was the legal argument for overturning the earlier decision Bowers and ruling in favor of Lawrence v. Texas?

  • 11:32:09

    CARPENTERThere were two basic arguments. One of them was that gay men and lesbians had a fundamental right to intimacy in their own private lives and that the state had no business in their bedrooms. That argument also said, by the way, that these were -- this was not just a matter of sex. It was a matter of building relationships and that these people had begun to form families.

  • 11:32:35

    CARPENTERWhere Bowers v. Hardwick saw gay people as just having sex, Lawrence v. Texas sees them as having relationships. And that was, in part, part of the design for arguing the case. The other argument was, it's just wrong to divide people and say that one group can have sex based on their sexual orientation and another group cannot do so. And that denies equal protection.

  • 11:33:01

    REHMAnd you're listening to "The Diane Rehm Show." Now describe for us the faces of the justices, what you saw, what you perceived.

  • 11:33:16

    CARPENTERWell, I can tell you that I was toward the back. I was not among the lucky people right at the front but I could see the justices. And I can tell you, number one, they all took it very seriously, every single one of them. They were all intently -- their eyes were upon the lawyers, but they could see others in the courtroom. There were a couple of moments of intended levity and a couple of moments of unintended levity I believe during the argument. But for the most part, it was a quite serious and dramatic encounter.

  • 11:33:51

    CARPENTERI think the justices were frustrated by the argument by Chuck Rosenthal who argued for the State of Texas and came in pretty unprepared. It was apparently his first appellate argument, or at least his first argument in front of the Supreme Court. And one does not want to make ones debut at the Supreme Court. One wants to have a little bit of practice ahead of time. And I believe he just thought he could walk in and say, this is the way it's always been and this is the way it continues to be.

  • 11:34:23

    CARPENTERSo I saw a court that took this case very seriously, including the justices by the way who did not support Lawrence and Garner. Justice Scalia, Chief Justice Rehnquist.

  • 11:34:32

    REHMAlright. We have numerous callers. We'll open the phones now, 800-433-8850. First to Little Rock, Ark. Good morning, Daniel, you're on the air.

  • 11:34:48

    DANIELGood morning. Echoing some comments that the guest made, prior to 2002 I was told that my then boyfriend now fiancé -- we're getting married in Massachusetts next week -- couldn't rent a single-bedroom apartment because it was deviant behavior. But with Jegley v. Picado, which echoes another comment that he made about the stripping away of antigay laws, we actually in Arkansas removed sodomy laws prior to Lawrence v. Texas the year before.

  • 11:35:29

    DANIELI was just wondering kind of the opinion of your guest about the use of the judiciary, you know, to rectify discrimination against any kind of group, gay people, black people, women, whatever. And I'll take my comments off the air.

  • 11:35:49

    REHMThanks for calling.

  • 11:35:50

    CARPENTERIt's a great question and Arkansas is a terrific example of that. It was another case argued by and conducted by Lambda Legal, which is the national gay rights litigation group that was a very successful, and continues to be a very successful group defending against discrimination around the country. And they brought a number of these cases in State Supreme Courts. And we often forget that we not only have a federal constitution but we have state constitutions. And the state constitutions can grant more rights and protect more freedom and more vigorously and force the principles of antidiscrimination than even the U.S. Supreme Court is willing to do.

  • 11:36:32

    CARPENTERWe have an equal protection clause in our constitution. That means that people are entitled to equality under the law. When you go through the Supreme Court's building, up on the pediment the words say equal justice under law. They don't say anything about gays and lesbians not being entitled to equality. They don't say anything about racial minorities not being entitled to equality, or women. They say equal justice for every person under the law. And our courts have a role in enforcing that principle in our national life. That is our fundamental constitutional commitment.

  • 11:37:06

    REHMWhich is why the selection of justices is such an important part of our entire public life. Dale Carpenter. He's professor of civil rights, civil liberties law at the University of Minnesota. His new book is titled "Flagrant Conduct", how a bedroom arrest decriminalized gay Americans. Short break, we'll be right back.

  • 11:40:04

    REHMAnd welcome back as we talk with Dale Carpenter of the University of Minnesota about his new book "Flagrant Conduct." It's about the story of Lawrence v. Texas how a bedroom arrest decriminalized gay Americans. Here's an email from Jeff who asks, "You two discuss the ramifications for gay rights of the fact that Lawrence was decided under the due process clause and not the equal protection clause, the basis that Justice O'Connor advocated in her concurrence.

  • 11:40:55

    CARPENTERYes, that's right. Five justices decided the case under the due process clause. And for listeners who may not know the, you know, the intricacies of constitutional doctrine, that basically means that the court decided there was a fundamental right to liberty and privacy for gay Americans. And what that meant was that the court reversed Bowers v. Hardwick, which held that there was no such right.

  • 11:41:19

    CARPENTERUnder Justice O'Connor's approach the problem with the law was that it drew a distinction between opposite sex couples and same sex couples. So in theory under Justice O'Connor's approach you could have a law that criminalized sex for both same sex and opposite sex couples. And Justice Kennedy goes out of his way in his decision to note that his decision actually protects, to some extent, both interests.

  • 11:41:47

    REHMI see. And, of course, you told me during the break that all eyes were on Justice Kennedy and Justice O'Connor.

  • 11:41:57

    CARPENTERIt was an extremely knowledgeable audience and everyone in that room knew that the deciding votes would be Justice O'Connor and Justice Kennedy and they were straining for some wink or nod or shake of the head, listening closely to every word and every question they asked to see if you could divine something about how they were going to vote. And the thing is the justices gave very little away in the oral argument. They betrayed almost nothing. So you left thinking a great job had been done by Paul Smith and by Landall Legal in drafting the briefs, but you couldn't be sure what the outcome would be.

  • 11:42:41

    REHMAnd what about the dissenting vote? What was the justification for descent? Wesley in Greensboro, N.C. wants to know was it distaste, was it religion, was it history?

  • 11:43:01

    CARPENTERJustice Scalia wrote the longer and, I think, probably more notable of the two dissents. Justice Thomas wrote the other. Justice Scalia went into some detail on his views on constitutional methodology. And his view was that there was no fundamental right, no ancient right, to engage in sex between two persons of the same sex. And that our law had always been that way.

  • 11:43:27

    CARPENTERNow, the problem with Justice Scalia's argument, I think, was that there had been enormous historio-graphical evidence since Bowers v. Hardwick that showed that gay sex was not made illegal just on its own in our history. It was part of a larger web of anti-sex laws that tried to channel all sexual activity into marital procreative relationships. Well, we had long ago given up the idea that sex was just for that idea. And we'd long ago protected in the Supreme Court unmarried people and certainly married people to have non-procreative sex.

  • 11:44:08

    CARPENTERSo what remained is this little shard and no one could explain why does this little shard remain in the law? How could it be explained? Well, Justice Scalia said it's always been our history to do this and we're allowed to do it now. He also said that you know Texas had a rational basis for the law. It could say that it wanted to promote its morality. And, in fact, that's all Texas argued. It's our moral view that this should be made unconstitutional. The problem with that, of course, is that if you say that then you can justify any law by just saying we want the law because we want it and it's constitutional because we want it.

  • 11:44:45

    CARPENTERAnd what kind of a moral tradition is it, after all, that says you can't have sex with a person that you are committed to and that you love and that you're raising your own family with. You can't have sex with that person, but you can have sex with an animal. That's what Texas said in 1973 when it decriminalized bestiality and allowed all manner of sexual activity. It was just nonsensical so the court rejected the idea that we can just say we want this law and, therefore, it's unconstitutional.

  • 11:45:16

    CARPENTERJustice Thomas, I think, wrote an interesting dissent -- shorter -- in which he said, well, I think this is an uncommonly silly law. And if I were a legislator in Texas, I would vote against this law. I don't think we should have laws like this. We shouldn't spend our time trying to police sex, but I'm not a legislator. I'm a judge. And I can't find any right of privacy in the constitution. Very interesting dissent by Justice Thomas. It's a logically consistent dissent, but it has fairly dramatic implications for our law. If it were true it would mean that say a state could ban the use of contraceptives by married people which the court rejected now almost 50 years ago.

  • 11:46:02

    REHMAll right, back to the phones to Oswego, N.Y. Good morning, Alex, thanks for joining us.

  • 11:46:11

    ALEXHello, Diane and Dr. Carpenter. It's always great to hear the program. I didn't come in at the beginning, but have you said that same sex acts are decriminalized now in Texas or still criminalized?

  • 11:46:32

    CARPENTERWell, that's actually an interesting distinction. So I believe it's now still 18 states that formally have sodomy laws on their criminal codes. The legislatures in those states have refused to remove those laws from their books, including in Texas. If you open up the Texas criminal code you can still find the homosexual conduct law. What Lawrence did is that it said, well, the court can't order you to formally remove this from the books, but if you enforce it, we will stop the enforcement. So the laws are there, but they can't be enforced because they're unconstitutional. I have to say they are used from time to time. The police do arrest people.

  • 11:47:10

    ALEXDr. Carpenter.

  • 11:47:11

    REHMOkay, go ahead, Alex.

  • 11:47:13

    ALEXYeah, yeah, we got off track a bit because of me. We had a horrific case here in upstate New York. I think it was in a region south of Syracuse in a forested area a man was walking with a gun, a rifle. He might have been hunting and he came across two lesbians. And this was all published in the newspapers, lesbians "making love," which enraged him so he shot and killed one, took her a little while to die. I think he wounded the other woman. She tried to help her friend, but it was obvious she was dying. And she managed to hide from the man in the brush. He would have killed her otherwise.

  • 11:48:04

    ALEXSo finally when the coast was clear, she went and got help. In New York state court -- he was caught very soon and he was convicted, I think, of murder or manslaughter and there was no consequences against the woman. She was judged as, you know, free to do what she wanted. And I just want to ask Dr. Carpenter's opinion on how that case might have pursued in Texas under their criminalization of...

  • 11:48:51

    CARPENTERWell, Texas could certainly back then have, if it had evidence that she'd committed a crime, could have brought a prosecution against her, in addition to her having been shot, I suppose. I doubt Texas authorities would have done it, but I have to tell you Texas was a tough place to be gay and we actually have cases in which the police investigated evidence of a serial murderer in Santa Monica in the late 1950's. A person who was going around killing gay people and they used the investigation as an excuse to begin an anti-gay clean up of the city.

  • 11:49:26

    REHMHow do you think this ruling affects gay marriage?

  • 11:49:35

    CARPENTERThat's a very good question. I think a couple of thoughts about that. First of all, my book is not a book about constitutional doctrine or a prediction about the future. But it is fair to say that getting rid of sodomy laws was a necessary but maybe not sufficient condition for getting to marriage. Because it would be exceedingly odd to say you have a right to marry someone, but not a right to have intimacy with them. So getting rid of that block was very important.

  • 11:50:11

    CARPENTERI say it's like removing a huge roadblock on the path to an ultimate destination. I don't know if it'll get us there. If you read the opinion there are certainly things in the opinion that you could pick up that suggest that the court might accept same sex marriage arguments. There are other things where the court says we're not saying anything about that issue. Interestingly Justice Scalia's dissenting opinion is probably the first draft of an argument for gay marriage in that he says that the Court's opinion removes the foundation in constitutional law that allowed us to distinguish between same sex and opposite sex couples.

  • 11:50:47

    CARPENTERAnd he says there's really no other way other than morality to keep us from same sex marriage. Now I'm sure that's not what he wanted, but that's how he interrupted the decision. So we'll see what the courts do. I don't make a prediction about that in the book but it is fair to say Lawrence v. Texas was a big step in that direction.

  • 11:51:05

    REHMHow long do you think it's going to take before that case gets to the Supreme Court?

  • 11:51:13

    CARPENTERThat's a question that you would have probably as good a guess as I would about. I assume you're talking about the Perry litigation in California. There are a number of hurdles to go through. It's hard to say. The earliest I would say it could possibly get to the Supreme Court would be the term after next, so the 2013 term.

  • 11:51:32

    REHMI see 2013 or '14.

  • 11:51:36

    CARPENTER2013 term for a decision and 2014.

  • 11:51:37

    REHMExactly.

  • 11:51:39

    CARPENTERIf the court even takes the case. It doesn't have to take any cases.

  • 11:51:41

    REHMRight. All right and to Dallas, Texas, good morning, Mark.

  • 11:51:47

    MARKHi, thank you for taking my call.

  • 11:51:48

    CARPENTERSure.

  • 11:51:49

    MARKI'm a first time caller, but frequent listener.

  • 11:51:50

    REHMI'm glad.

  • 11:51:51

    MARKI wanted to say I just read the book and I found it fascinating. When the decision came out -- I'm from Texas, but when the decision came out, I lived in Cincinnati. And Cincinnati had just recently passed some kind of anti-gay discrimination (word?) ordinance for the city. There was -- people could be refused to rent. They could lose their jobs. I don't think it had anything to do with sodomy. It was something about they could not claim that they were being discriminated against because they were gay.

  • 11:52:21

    MARKWhen I read the book and it was a point that the author just made on your show. I could not believe that bestiality had been decriminalized in Texas in 1973, but sodomy was still kept on the books. I just recently (unintelligible) from Washington state and there was a recent big case about bestiality in the news because a man was too friendly with a horse. So I was really shocked that Texas, known for moral values, would have discarded their bestiality statute and still kept the sodomy one.

  • 11:52:53

    REHMAll right, Mark, thanks for your call. And you're listening to "The Diane Rehm Show." Do you want to respond, Dale?

  • 11:53:02

    CARPENTERWell, it is worth just taking a moment to pause and reflect on what he just said. In the state of Texas as of 1973, gay men and lesbians were lower than animals. And that is how they were treated in the law and that is how they were treated by law enforcement authorities and in, to some extent, in public opinion. And I interviewed judges who encountered this case who had nothing to do with gay rights, knew nothing about it, but when they realized what Texas had done and the case came before them, they were shocked and Texas could never explain it.

  • 11:53:35

    CARPENTERI think it's explicable only by a kind of deep seated animas against gay men and lesbians that I'm glad has largely left our law and has largely left public opinion and that we have moved on. The country has moved on beyond what Texas was doing back then and has shifted dramatically in favor of allowing individuals their own freedom.

  • 11:54:01

    REHMWhy did you believe it was so important to write about this case?

  • 11:54:07

    CARPENTERIt is one of the most important individual freedoms cases of the past 50 years. That makes it important. It is also important, I think, to emphasize this point. This is not a book about gay history. This is a book about history and it's not a book about gay civil rights. It's a book about civil rights. It's not a book about just how the government treats gay men and lesbians. It's how the government treats all of us and what it is entitled to do to direct our lives in the way that it thinks best rather than the way we think best.

  • 11:54:43

    CARPENTERAnd so I see a larger -- the rights of gay men and lesbians are very important, but they are a microcosm of a larger struggle, I think, in our society. And the other reason is I think this is just a very interesting story. There are a lot of interesting people in it with lots of motivations and they're complicated. They're not cartoon characters and we recognize how contingent history is when we review a story like this. How at any number of six points along the way this case could have been dropped, it could have failed. They were fined too little amount of money to be able to appeal in one of the earlier courts so they asked to be fined more. There are all sorts of twists and turns in this case.

  • 11:55:28

    REHMWere you able to talk with any of the justices about this case?

  • 11:55:36

    CARPENTERNone of the justices on the court, they do not discuss their decisions. So I tried, but I was not successful in doing so and I understand their decision.

  • 11:55:47

    REHMBut you did talk with both the defense attorney and the lawyer prosecuting the case.

  • 11:55:56

    CARPENTERI talked to the lawyers on both sides of the cases. I talked to the gay rights advocates. I talked to Lawrence and Garner. They're both now, unfortunately, gone. I talked to the three of the four police officers, including the one who tells the dramatic, somewhat incredible, story about what he saw that day and it's on the basis of all those interviews and other research that I did that I found that this is a much richer, more complex, more contingent story than we could ever have imagined.

  • 11:56:25

    REHMAnd a story not only worth telling, but worth teaching and I thank you for being here.

  • 11:56:38

    CARPENTERThank you very much.

  • 11:56:39

    REHMDale Carpenter, he's professor of civil rights, civil liberties law at the University of Minnesota. His new book is titled, Flagrant Conduct," how a bedroom arrest decriminalized gay Americans. Thank you all for listening. I'm Diane Rehm.

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