UNERASING LGBTQ HISTORY AND IDENTITIES PODCAST SEASON 5 EPISODE 2

Published October 29, 2024

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TRANSCRIPT 

Deb Fowler:  Hello, and welcome to UnErasing LGBTQ History and Identities — A Podcast. I’m Deb Fowler, co-founder of History UnErased.

This episode is a deep dive into a monumental Supreme Court case in 2003, Lawrence v. Texas. The court’s decision opened the door for marriage equality and other extensions of liberty. In 2017, we sat down with Paul Smith, lead attorney for the petitioners, to discuss the case. Mr. Smith will set the stage…  

Paul Smith: It was a truly astonishing experience to be centrally involved in that case because we did have the sense that it was monumentally historic - that it would change the relationship between the gay and lesbian communities and their own country and remove what was just a terrible barrier to any progress toward legal equality for people in this country - the case that had said it was perfectly okay to put people in jail for being gay. And so we all had the sense on that team that it was an amazing thing that we should maybe keep every scrap of paper we used because it was all going to be museum material someday. And that's really the night before I was feeling quite confident of being ready because I had spent very intensive amounts of time being put through my paces, practice arguments and the like, and I think I felt okay about it. 

The next day was quite interesting though, I'll tell you that. The crowds of people had been sleeping out on the sidewalk for at least 24 hours to try to get in to see the argument. And, in the lawyer section which is kind of upfront in the courtroom, it was filled with every well-known kind of gay activist lawyer that had been working in the movement for many, many years. They all came to see what would be this absolutely critical change in the law if we were able to prevail. And it had a combination of feelings. One part of it was really supercharged to have all of those friends and allies pushing and staring the court in the face and saying, we're all here to make sure this happens the right way. But it also created a lot of pressure not to be the one who screwed up in front of all of those people who could have done a lovely job themselves and probably had been working on these issues much, much longer than I had. 

Kathleen Barker: It was nighttime in September 1998, when the police responded to a call reporting a weapons disturbance in the private home of John Lawrence. The call to the police was made by an intoxicated man named Robert Eubanks. He told the police that Tyron Garner and John Lawrence were in Lawrence’s apartment and that Garner had a gun. Police officers entered the unlocked apartment with caution. The first officer on the scene, Joseph Quinn, took the lead, and he and another officer went to the bedroom at the back of the Lawrence residence. There, the officers reported that they saw Garner and Lawrence engaged in a consensual sexual act. 

The arresting officer charged Lawrence and Garner with violation of Texas Statute 21.06, known as the Homosexuality Conduct Law, established in 1973.

Lawrence and Garner were convicted by a justice of the peace and charged a $125 fine, plus court costs. LGBTQ activists recognized their arrest and conviction as an opportunity to challenge the Homosexual Conduct Law. Both Garner and Lawrence denied they were having sexual relations, and most evidence points to this being true, but to challenge the anti-sodomy law, the men had to plead no contest to the charges. To this end, Lawrence and Garner requested a trial and were again found guilty in December 1998. The case made its way through the Texas Court system until the conviction and statute were challenged in the State Court of Appeals. In 2001, this court agreed with the lower court and upheld the convictions of Lawrence and Garner.

Attorneys from Lambda Legal, working on behalf of Lawrence and Garner, asked the Supreme Court to review the case, which the Court agreed to do in December 2002. The Justices considered three questions:

One: Did Lawrence and Garner’s criminal convictions under the Texas Homosexual Conduct law violate the Fourteenth Amendment guarantee of equal protection of the laws?

Two: Did their criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

Three: Should Bowers v. Hardwick be overturned? Bowers v. Hardwick was a 1986 Supreme Court Decision that held that there was no constitutional protection for sodomy and that states could outlaw its practice.

The earliest sodomy laws in the United States were adopted in the 1600s. Derived from church law, they were intended to “protect public morals and decency” and prevent non-procreative sexual behavior and adultery. For centuries, most sodomy cases actually involved heterosexual behavior. By the early 1970s, however, just as the gay rights movement was gaining momentum and greater visibility, sodomy laws were used to justify discrimination against LGBTQ people. Many states rewrote their sodomy laws to exclude heterosexual people, and in many other states the law was interpreted by the courts to apply only to same-sex conduct. It’s important to recognize that these legal parameters surrounding same-sex sexual behavior constitute a mere blip in the entire history of humankind. It’s only been in the last few centuries that the LGBTQ community has been criminalized and pathologized, and, thanks to many tireless advocates, de-criminalized and de-pathologized. And Lawrence v. Texas is one of the Supreme Court cases that helped pave the way toward later successes, such as marriage equality. 

One of the most important parts of the case begins with the oral argument from Paul A. Smith, the experienced litigator who represented Lawrence and Garner. 

In his opening remarks, Smith challenged the fact that a law in the State of Texas criminalizes consensual sexual intimacy for same-sex couples while permitting it for heterosexual couples. He argued that this law violates two constitutional principles: 

First, the right to personal liberty and privacy, which should protect all adult couples—same-sex or not—from unwarranted government interference in their private sexual choices.

Second, the Equal Protection Clause, since the law unjustly targets and discriminates against same-sex couples, effectively creating a second-class citizenship for them.

If you are scratching your head, we agree, this is a very complicated case. But it is an important case that helps inform the LGBTQ rights and freedoms we have today.  

Let’s listen to Mr. Smith, who represented Lawrence and Garner. 

Mr Smith read by Jocardo Ralston: Mr. Chief Justice, and may it please the Court. The State of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the State happens to disapprove of. It further claims that there’s no constitutional problem raised by a criminal statute that is directed not just at conduct, but at a particular group of people, a law that criminalizes forms of sexual intimacy only for same-sex couples and not for anyone else in the State.

They bring two constitutional claims to the Court today. First, among the fundamental rights that are implicit in our concept of order of liberty, must be the right of all adult couples, whether same-sex or not, to be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression. Second, there’s no legitimate and rational justification under the Equal Protection Clause for a law that regulates forms of sexual intimacy that are permitted in the State only for same- sex couples, thereby creating a kind of a second class citizenship to that group of people.

The Court’s cases, Mr. Chief Justice, say that history is a starting point, not the end point of the analysis. And I think that it’s important to look at history as a whole and one of the errors that I think that the Court made in Bowers v. Hardwick was only looking at the issue in terms of homosexual sodomy. If you look at the history as a whole, you find a much more complicated picture.

KB: The Equal Protection Clause is part of the Fourteenth Amendment that took effect in 1868. It says that no state shall deny to any person within its jurisdiction “the equal protection of the laws.” While sodomy laws have a long and complicated history, by the time of this case in 2002, 36 states had repealed their sodomy laws. 

Justice Scalia questioned Mr. Smith about the relevance of historical laws regulating sexual intimacy between married couples, particularly in the context of same-sex relationships. 

Justice Scalia read by Dinah Mack: So the same-sex/other-sex aspect doesn’t come into it--

Mr Smith: --I think it does come into it, because if you’re going to suggest that the state of the law in the books in the 19th century is the touchstone you have to take into account that in the 19th century married couples were regulated in terms of their forms of sexual intimacy that were created for them.

Justice Scalia: So all same-sex couples could not... could not perform this act lawfully. What more do you need than that?

It was prohibited.

Mr Smith: I guess I’m suggesting Mr... Justice Scalia, that it’s been conceded here by this State, it was conceded by the State of Georgia 17 years ago, that married couples can’t be regulated as a matter of substantive due process in their personal sexual expression in the home. That means that the state of the law on the books in the 19th century can’t be the deciding factor.

Justice Scalia: They conceded it. I haven’t conceded it.

KB: Justice Ginsburg weighed in to ask “Are you talking about fornication?”

Mr Smith: Yes, Justice Ginsburg…. The enforcement of the sodomy laws of this country going back to the founding involves coercion, it involves children. It involves public activity. It doesn’t involve the kind of conduct that’s at issue here.

Justice Scalia: It’s whether we’re going to adhere to what... what we said in... in Glucksberg, mainly that before we find a substantive due process right, a fundamental liberty, we have to assure ourselves that that liberty was objectively deeply rooted in this Nation’s history and tradition. That’s what we said in Glucksberg and we’ve said it in other cases.

I mean, suppose all the States had laws against flagpole sitting which they then overturned? At one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws. Does that make flagpole sitting a fundamental right? I don’t know what you mean by the function it plays in the lives of real people. It doesn’t say you can’t have... you can’t have any sexual intimacy. It says you cannot have sexual intimacy with a person of the same sex.

KB: Scalia insisted on adhering to the principle established in the 1997 Supreme Court case of Washington v. Glucksberg, in which the Court decided the government is permitted under the Fourteenth Amendment to pass a law prohibiting assisted suicide. Scalia argued that laws must be deeply rooted in the nation’s history. 

Mr Smith: --The argument about 19th-century enforcement is that they didn’t prosecute anyone for private and consensual crimes involving adults, that they worried about children, they worried about public activity, they worried about coercion….. Now as to the equal protection point which I think I should get to in my remaining time. This is a statute which limits its focus just to one small minority of the people of the State of Texas. It says that these specified forms of sexual intimacy called deviate sexual intercourse are illegal only for same-sex couples and not for anyone else in the State of Texas.

--Well, the one thing that I submit, the Court, the State should not be able to come in to say is we are going to permit ourselves the majority of people in our society full... full and free rein to make these decisions for ourselves but there’s one minority of people [that] don’t get that decision and the only reason we’re going to give you is we want it that way…

Justice Scalia: You can make it sound very puritanical, the... you know, the laws... the laws against bigamy, I mean, who are you to tell me that I can’t have more than one wife? You blue-nose bigot. Sure. You can make it sound that way, but these are laws dealing with public morality. They’ve always been on the book, nobody has ever told them they’re unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy?--If you prevail, Mr. Smith, and this law is struck down, do you think that would also mean that a State could not prefer heterosexuals to homosexuals to teach kindergarten?

KB: In 2016, Attorney Smith told History UnErased's interviewers that he was surprised by Justice Scalia's "shockingly ignorant" comment. Smith answered that an educational context would involve very different criteria, and very different considerations. 

Smith’s argument ends with a reminder that he is asking the Court to overturn the 1986 case of Bowers v. Harwick, which ruled that same-sex sexual activity was not protected under the Constitution.

Mr. Smith: Yes, Your Honor. We're asking you to overrule it and we think that …..Bowers was wrong for essentially three reasons, first it posed the question too narrowly by focusing just on homosexual sodomy... And second in its analysis of history, which I think I explained already and third, and perhaps most importantly, in the assumptions that the Court made in 1986 about the realities of gay lives and gay relationships, I submit it has to be apparent to the Court now that there are gay families that family relationships are established, and that for those people, the opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context, that you can't protect one without the other, that it doesn't make sense to draw a line there and that you should protect it for everyone. That this is a fundamental matter of American values.

KB: So to summarize if you missed any of the argument…Smith contended that Bowers was misguided for three main reasons. First, it framed the issue too narrowly by focusing solely on homosexual sodomy. Second, its historical analysis was flawed. Third, and perhaps most importantly, the Court's assumptions in 1986 about the realities of gay lives and relationships were misguided. Gay families exist and their relationships are valid. For these individuals, the ability to express their sexuality in the privacy of their homes serves a similar purpose to that of sexual expression within marriage. Thus, it doesn’t make sense to draw a line between the two; protecting one necessitates protecting the other. This is fundamentally an issue of American values.

Next, we turn to the arguments presented by Charles Rosenthal who was representing the state of Texas. He argued that the enforcement of the Texas Penal Code Statute does not violate the 14th Amendment because the Constitution does not explicitly address privacy or sexual conduct.

Mr Rosenthal read by Danny Roberts: Give me just a moment. Mr. Chief Justice, and may it please the Court. The State humbly submits that enforcement of Texas Penal Code Statute 21.06 does not violate the 14th Amendment of the Constitution because this Court has never recognized a fundamental right to engage in extramarital sexual conduct and because there is a rational basis for the statute sufficient to withstand equal protection scrutiny. Since the Constitution does not expressly address the issue of privacy or of sexual conduct, we look to the Court’s precedents and to the history of our people. If a historical, traditional analysis applies, it then serves as objective guideposts to guide this Court, as long as those ideals and laws do not infringe on fundamental rights. The record in this case does not particularly show which rights the petitioners are asking to uphold.

Justice Scalia: I... I don't understand what you mean by that. Aren't we clear what right they're seeking to uphold?

Mr. Rosenthal: No, sir, they're... they're asking for the right of homosexuals to engage in homosexual conduct.

Justice Scalia: Right.

Mr. Rosenthal: But there's nothing in the record to indicate that these people are homosexuals. They're not homosexuals by definition if they commit one act… It's our position that a heterosexual person can also violate this code if they commit an act of deviate sexual intercourse with another of the same sex.

Justice Scalia: Why aren't... why aren't they seeking to vindicate the right of either homosexuals or heterosexuals to commit homosexual acts? What difference does that make?... 

KB: Rosenthal suggested that this decision belongs to the States. The same argument has been made about slavery, school integration, gun control, and is currently playing out with respect to reproductive rights. 

After this exchange, Justice Breyer weighed in: 

Justice Breyer read by Eric Fisher: But the argument of... of Bowers, to overrule Bowers is not directly related to sodomy. It’s related, but not directly. It’s that people in their own bedrooms, which have their right to do basically what they want, it’s not hurting other people. And they... the other side... says Bowers understated the importance of that. It got the history wrong. It didn’t understand the relationship of sodomy to families and in addition, Bowers has proved to be harmful to thousands and thousands and thousands of people, if not because they’re going to be prosecuted, because they fear it... they might be, which makes it a possible instrument of repression in the hands of the prosecutors.

Now, that’s the kind of argument that they’re making. Harmful in consequence, wrong in theory, understating the constitutional value. All right, now how do you respond to that? … I would like to hear your... your straight answer to those points --- because on their face, they’re... I mean, I’m not... not a criticism, I mean, directly responding, directly responding to the, to the, to the question.

Mr Rosenthal: Well, it’s our position that the line should be drawn at the marital bedroom, through which we can... through the law enforcement or anyone else cannot pass unless something illegal happens inside that bedroom.

Justice Breyer: Well, if this is drawing the line at the bedroom door, this case is inside the bedroom, not outside… the statute makes criminal, to my understanding, of... of what takes place within the bedroom through consent. Am I right about that? And why isn’t that something that the State has no business getting involved in----as long as it doesn’t hurt anybody?

Mr Rosenthal: I think that the... that this Court having determined that there are certain kinds of conduct that it will accept and certain kinds of conduct it will not accept may draw the line at the bedroom door of the heterosexual married couple because of the interest that this Court has that this Nation has and certainly that the State of Texas has for the preservation of marriage, families, and the procreation of children… We’re penalizing only the particular activity that those unmarried couples may have with respect to whether they have sexual intimacies.

Justice Breyer: You said procreation, marriage and children, those are your three justifications. Now from what you recently said, I don’t see what it has to do with marriage, since, in fact, marriage has nothing to do with the conduct that either this or other statutes do or don’t forbid. I don’t see what it has to do with children, since, in fact, gay people can certainly adopt children and they do. And I don’t see what it has to do with procreation, because that’s the same as the children. Now, what is aside... aside from that? 

KB: Rosenthal and the Justices argued back and forth about the idea of morals, and whether the government of Texas can set moral standards for its people. For example, Breyer asked if it should be against the law to tell really serious lies to your family at the dinner table? Rosenthal said Texas can make that a law, but there would be no rational basis for the law.

Breyer pushed– could Texas go right ahead and make a law against any kind of activity that they think is just immoral, such as rudeness?  Rosenthal answered that there would need to be some rational basis test to determine that the activity in question was rationally related to some State interest. 

Scalia then broke back into the discussion: 

Justice Scalia: Mr. Rosenthal, don’t you think that what laws a State may constitutionally pass has a lot to do with what laws it has always been thought that a State can constitutionally pass, so that if you have a 200-year tradition of a certain type of law... and I don’t know of a 200-year tradition of laws against lying at the dinner table... the presumption is that the State can within the bounds of... of the Constitution to pass that law …. as against good morals, bigamy, adultery, all sorts of things like that, and isn’t that determined pretty much on the basis of what kind of laws the State has traditionally been allowed to pass?

Justice Breyer: ...See, the hard question here is can the State, in fact, pass anything that it wants at all, because they believe it’s immoral. If you were going to draw the line somewhere, I guess you might begin to draw it when the people involved are inside his own bedroom and not hurting anybody else.

 KB: Justice Souter interjected to argue that when the State criminalizes behavior as immoral, customarily what it points to is not simply an isolated moral judgment but a moral judgment which is backed up by some demonstration of harm to other people.

Rosenthal responded that part of the rationale for the law is to discourage similar conduct. Justice Ginsburg asked if the State of Texas was doing this to protect the individuals who are involved in the activity, or if the State was taking action to see that people don’t harm others.

Mr Rosenthal: Well, I think Texas has the right to prohibit certain conduct. Well, because heterosexual conduct is... the same kinds of conduct... and by the way it's not distinguished, it's still called deviate sexual intercourse with heterosexuals.

KB: Justice Souter wondered why the state of Texas would bother to enforce such a law if there was no actual harm involved; if there were, the law wouldn’t only target homosexuals. Instead, it seemed to be based solely on moral disapproval of same-sex sexual activity. 

Mr Rosenthal: Well, because heterosexual conduct is... the same kinds of conduct.. it’s not prohibited. But it also can lead to marriage and to procreation. And that’s... and that’s a legitimate State interest. Thank you, Mr. Chief Justice.

KB: In a 6-3 decision, the Supreme Court ruled that Texas Penal Code 21.06 and other laws criminalizing consensual same-sex sexual conduct violate the Due Process Clause of the 14th Amendment. The Court held that individuals have a right to engage in private, consensual sexual activity without government interference, thereby overturning the previous decision in Bowers v. Hardwick, which ruled that same-sex sexual activity was not protected under the Constitution. 

How do you think this decision affected future cases regarding sexual privacy and marriage equality? Fun fact, while Mr. Rosenthal argued about the preservation of marriage and adultery, in 2008, he was forced to resign as District Attorney in Harris County Texas after his extramarital affair became public. Sometimes, oral arguments of all varieties can reveal great hypocrisy. Can you think of any examples today?

The Lawrence v Texas landmark ruling affirmed the dignity and autonomy of LGBTQ+ individuals, striking down Texas's anti-sodomy law and setting a precedent for future cases regarding privacy and equality.  

DF: This podcast is funded by the New York City Council. It was developed by History UnErased and produced and edited by Dinah Mack, our youth equity program director and podcaster. And special thanks to our colleagues for reading parts of the Supreme Court transcript. You heard from Jocardo Ralston as Mr. Smith, Danny Roberts as Mr. Rosenthal, Dinah Mack as Justice Scalia, and Eric Fisher as Justice Breyer. 

Our theme music is “1986” by BrothaD via Tribe of Noise.

Please rate this podcast and share!  

I’m Deb Fowler. Thanks for listening. Visit UnErased.org to learn how we are putting LGBTQ history in its rightful place - the classroom.

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