05. Lawrence v. Texas with Professor Wes Phelps

Wes Phelps

And you know, the attorney general of Texas has already said that if Lawrence V Texas is overturned, we're gonna be ready to enforce the sodomy law the very next day.

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Helen Grossman

Hello and welcome back to class of 03, the podcast. About the year 2003. I'm your host slash classmate, Helen Grossman. This is episode five and this week we are talking about Lawrence versus Texas. Before we get into this episode, I just want to say thank you to everyone who has listened to the show so far and written in sent messages on Instagram or even written a review.

This is a solo independent project that is a labor of love and curiosity. So I really appreciate any encouragement and help getting the word out. So if you like this show, please rate it and review it and tell your friends about it. I also would love to hear more of your stories from 2003 or any hot takes you have on the cultural moments from that year.

So you can send us an email at class of 03 pod at gmail dot com or write us on Instagram at class of 03 pod or you can give us a call. Leave a voicemail actually. What is our number? It's 724. Class 03. All right, let's get into it. In 2003. There were 13 states with anti sodomy laws in place. Just some quick math. That's over a quarter of the states in the country.

Sodomy laws prohibit anal and oral sex even between consenting adults. And while some sodomy statutes applied to everyone, heterosexual and homosexual alike, most of the time, if and when the laws were actually enforced or are actually enforced, it's queer people being penalized. And if this sounds like ancient history, not possible today, you need to know that many of these states still have sodomy statutes on the books.

They're not enforced because of the Supreme Court decision we discussed today. But as we've seen and learned from the Dobbs decision, reversing Roe V Wade, a law that's not enforceable today isn't guaranteed to stay that way. 20 years ago. This week on June 26 2003, the Supreme Court released its decision in Lawrence V Texas declaring sodomy statutes unconstitutional and reversing a 1986 decision that had not found a constitutional protection for sexual privacy.

My guests and I will get into the specific circumstances of the case that made up Lawrence V Texas. But what you need to know to start is that in September 1998 John Lawrence and Tyron Gardner were arrested in Lawrence's apartment for supposedly engaging in anal sex. They were charged with a violation of Texas's homosexual conduct law, spent the night in jail and fined $200 each after years of going through the appeals process.

The case was argued in front of the Supreme Court in March 2003 justice Anthony Kennedy writing the majority opinion in Lawrence explicitly stated that consensual sexual conduct was part of the liberty protected by the right to privacy and unenumerated, but generally until 2022 that is understood constitutional right. We get into this a lot more in the episode.

But for decades, sodomy statutes had rendered queer people criminals second class citizens. The victory in this case was the first significant legal victory in the gay rights movement. Paving the way for 20 fifteen's marriage equality decision, Obergefell V. Hodges justice Kennedy writes in his opinion, the petitioners are entitled to respect for their private lives.

The state cannot demean their existence or control their destiny by making their private sexual conduct a crime their right to liberty under the due process. Clause gives them the full right to engage in their conduct without intervention of the government. In his dissent, Antonin Scalia accused the court of taking sides in the Culture war and signing on to the so called homosexual agenda.

He also said that that the decision made same sex marriage an inevitable next step. Thankfully, he was right about that. The decision was the government recognizing the humanity of queer people, their inherent dignity. In a Times article that ran the day after the ruling came out about the reactions within the gay community. There's a quote from Paula Elbrick who says the court has put gay people into the mainstream of society for the first time, the court understands gay

sexuality is not just about sex, it's about intimacy and relationships. Now there is a real respect for our relationships as us almost as families that is not seedy or marginal but very much a part of society. So what was the so-called homosexual agenda in 2003? I mean, I think the answer to this question lies in the quote that I just read that queer people are not marginal and are very much a part of society.

And this had been percolating for quite some time. Lawrence may have represented the official legal acknowledgment of that, but 2003 marks an especially important year in pop culture representation of queer people. However, I do have to say that a vast majority of this representation comes in the form of middle class and upper middle class, white men and women.

By 2003 Will and Grace had been on since 1998 and was the third most popular sitcom on TV. After Friends And Everybody Loves Raymond. Queer's Folk premiered in December 2000 on Showtime. So queer oriented programming was already gaining popularity and traction with prime time audiences and becoming more mainstream each season. On the heels of the Lawrence V Texas decision, Bravo premiered Queer Eye for The Straight Guy in which a team of experts in fashion, food, interior

design, wine, and the arts transform fry straight guys. In a December 2003 article in the L A Times rounding up all the new queer programming on television, the president of Bravo at the time, Jeff Gasp and said sure the title was controversial. But these guys all had a lot of heart and humor. They were really nice guys. And viewers responded to that.

The show drew 1.6 million viewers for its first two episodes. The largest audience in Bravo's history to that point after its success on Bravo, NBC broadcast the show in late July to 7 million viewers. Later in the summer, Bravo premiered a show called Boy Meets Boy, which was kind of like the Bachelor, but with a gay bachelor. And in September, Ellen degeneres launched her talk show, the breakout hit of the year and it made her one of the most visible lesbian celebrities ever, if

not one of the most visible celebrities ever. It was also a vindication after her sitcom had been canceled in 1998 because Ellen and her character character came out on the show. 2003 seemed to be screaming out. It's different. Now, over two nights in December, 2003 HBO aired the star studded adaptation of Tony Kushner's play Angels in America, which went on to win 11 Emmy Awards.

The list goes on, there was a sitcom called It's All Relative on ABC, a documentary that aired on A MC called Gay Hollywood. And then in January 2004, the L word launched on Showtime, this wasn't without controversy or pushback. The president of the Parents Television Council referred to Queer Eye as the Gay Supremacy hour. So this is the landscape that the Supreme Court was wading into in this landmark decision, Lawrence versus Texas.

For this episode, I had a fascinating conversation with Professor Wesley Phelps of University of North Texas. Professor Phelps just wrote a book called Before Lawrence V Texas. The making of a queer social movement, which is a really interesting study of the many years of work and organizing that led up to this Supreme Court case, it covers not only the legal cases that laid the groundwork for overturning discriminatory anti sodomy laws, but also the stories of the men and

women who were affected by those laws and who were brave enough to fight the system that oppressed them. I really enjoyed the book and if you're interested in legal history or queer history or Texas History, I definitely recommend it. Professor Phelps also just launched a podcast covering the topics in his book and that podcast is called Queering the Lone Star State.

So I'll include links to both in this episode, but you can subscribe to that show wherever you listen to podcasts. This is episode five, Lawrence V Texas with Professor Wes Phelps.

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Wes Phelps

My name is Wesley Phelps. I'm an associate professor of history at the University of North Texas in Denton. I study recent us history and queer history. And let's see, in 2003, I had just gone back to grad school. I graduated with my undergrad in 2000 and worked in terrible jobs for a couple of years and was back in grad school in 2003.

 

Helen Grossman

Do you remember the attitudes and discourse in Texas, like shifting around LGBT people and rights like is obviously different in different parts of the state. But Texas is such a unique example and your book really goes into the political shifts and sort of some of the reasons, some of the ways that Texas itself shifted. But in the process of writing this book, like, did you, could you place a timeline of your own or like your community's attitudes about LGBT people shifting?

 

Wes Phelps

Oh, absolutely. You know, like most people in 2003, I was completely unaware that the state of Texas even had a sodomy law. I had no idea that it was still illegal in the first half of 2003 to engage in oral or anal sex with a member of the same sex. And I, I didn't know a single person who knew that I had never heard of the sodomy law before. and, you know, I think that's partly because it wasn't enforced, you know, people were not being arrested in the privacy of their own homes for

engaging in sexual activity. Notwithstanding John Lawrence and Tyrone Garner, who actually were, but nonetheless, most people were not, being arrested like that. So it didn't really feel like it affected my life. It didn't affect the lives of my friends. It just wasn't, a topic of conversation.

 

Helen Grossman

Then let's, let's talk about the homosexual conduct law. 21.06. this was one of 14 so called sodomy laws still on the books in the US in 2003. in your book, you go into the history of these laws and sort of address how they've been litigated since the 19th century since, I mean, different versions of it, not 21.06. But you know, the version of it in the penal code in the 18 hundreds, there were lawsuits about it then.

can you talk about how the laws or like the legal understanding of sodomy laws evolved over time? And by the time we get, you know, Lawrence going through the legal process between 1998 and 2003, what is the homosexual conduct law actually prohibiting?

 

Wes Phelps, Wes Phelps

Texas actually didn't have a sodomy law until 18 60.

 

Wes Phelps

It was the 18 60 legal code. in which legislators first included a sodomy law in the criminal code. And that was taken directly from English Common law. It was very vaguely worded. It prohibited the abominable and detestable crime against nature which at the time people understood to be non procreative sex. So sex with a member of the same sex, sex with an animal, sometimes even masturbation was thrown in there as something that could be criminalized under this law.

And, and you know, as soon as this law started to be enforced, there were challenges to it in the court system. Defendants would argue that the law was so vague, it didn't actually outlaw anything. How were they to know that it was illegal to have sex with a member of the same sex when that's not really stated in the law itself. And so judges kind of pleaded with the legislator to legislature to make the statute itself more specific.

In 1943 the state legislature wrote a new criminal law for Texas called article 5 20 before, which was more specific. It outlaws oral sex, it outlaws anal sex, but that's for everyone for same sex, couples, opposite sex, couples, married people, unmarried people. It was illegal after 1943 to engage in oral or anal sex with anyone, including your spouse.

There were some challenges to that law, of course. The most important one came in 1970 a case called Buchanan versus Bachelor. Alvin Buchanan was a gay man who was arrested in public or quasi public places twice in 1969 once at a public park restroom. Another time at a Sears department store restroom in downtown Dallas. when he challenged the sodomy law, he brought on his attorney decided to bring on some additional plaintiffs.

And so they brought on a married couple, this married couple admitted that they engaged in the illegal sexual conduct and the privacy of their own homes and they feared prosecution under article article 5 24. And so a judge agreed with them that the law violated the privacy rights of the married couple. And so that law was struck down, not because of the rights of Alvin Buchanan, the gay plaintiff, but because of the rights of this straight married couple, the legislature kind of

understood at that point, that article 5 24 might be on shaky constitutional grounds. So they got together to write a new criminal code, which was, passed in 1973 took effect in 1974. And that's what included section 21 06, the homosexual conduct law. What that law did is it made it illegal to engage in oral or anal sex only if you did it with a member of the same sex.

So it decriminalized what had been considered sodomy between opposite sex partners, but decriminalized it for same sex partners. So it's a, it's a targeting of the law specifically at queer Texans. And ultimately, that's the law that John Lawrence and Tyrone Garner were arrested for violating in 1998.

 

Helen Grossman

Let's talk about what were the effects of 21.06 you know, in the book you write about it affecting everything from police raids to employment options. But what were some of the ways that the law like practically affected people's lives? And, and do you have a sense of the scale of the enforcement of it?

 

Wes Phelps

Yeah, we, we don't have a great sense of how many people were arrested for violating that specific law and criminally charged for it because in Texas, there is this weird thing where if a if a conviction is not appealed, it doesn't appear in the record. The way the law really affected queer people in Texas is that its existence in the criminal code served as a justification for a range of discrimination against queer Texans in a whole number of areas of their life.

You know, when it came to employment, this is where a lot of queer people really felt the sting of 21 06. As I mentioned, you had to have a license to have a lot of different jobs in Texas. So if you were going to a license as a queer person, you had to perjure yourself and say that you didn't violate the homosexual conduct law. If you wanted to be a police officer, you had to answer questions about whether you upheld the laws of the State of Texas.

You also had to answer questions about whether or not you would ever engaged in an act of sexual perversion. A woman named Micah England found out what the result of that could be when she applied to become a Dallas Police officer in 1990. She answered that question by saying I'm gay and for that reason was turned down for a job as a Dallas police officer.

This could affect child custody proceedings. I write in the book about the custody proceedings of Mary Jo Richer who lost custody of her son after her divorce because it came to light that she was a lesbian and living with her partner, Anne Foreman. This could even affect people in the administration of public assistance. There was a former Methodist minister named Jean Leggett, who was fired from his ministerial job because he was gay and had to go on.

public support had to go apply for food stamps in San Antonio and he was initially denied food stamp access because an inspector when he went to his home to inspect his home as was required for getting food stamps. The inspector determined he was gay and therefore a serial lawbreaker and he wasn't going to authorize extending food stamp benefits to a serial law breaker. This law also justified rampant police harassment.

Police would simply raid bars and this is after Stonewall. Right. Well, into the 19 seventies and even the 19 eighties, police departments in Texas are regularly raiding gay bars and, with the pretext that there could be criminal activity happening inside. So you see, queer people in Texas felt this in their lives, even if they didn't even know about the law.

 

Helen Grossman

One of the really interesting points that you make is around education, right? And how the lawsuits like the Baker, the Wade lawsuit, they used that over, you know, the course of it's a, you know, when it was litigated, but also the appeals process to consistently educate people about, about the issue and about the way that the law was affecting people's lives.

Can you talk about how the activists and like the legal strategy, I guess, or the pr strategy around the legal strategy actually? Did you know, either within the movement or within the general population, build a support or at least an awareness for how this was affecting people's lives?

 

Wes Phelps

Well, yeah, and Don Baker is a really good example of that. So Don Baker himself was an educator, a born educator, his sister, Maggie Watt told me several times when I interviewed her, you know, he was a public school teacher when he decided to become the plaintiff in Baker versus Wade in 1979. and it was always at the very center of that case for him was this effort to educate the public about how this law operated, not only the straight public, but other gays and lesbians who didn't

think this law affected them. And so he constantly reminded people that when he was a teacher, he could not let anyone know that he was gay because that was grounds for immediate firing. And so he really promoted that message, during the case. he, he, he traveled across the state collecting stories of people who had been discriminated against because of the homosexual conduct law.

A lot of the stories that I relate in the book come from Don Baker's work going around the state and talking to people about how this law affected them. And he, he also wanted queer people to know that this law branded them second class citizens, but that did not mean anything about the inherent worth and dignity of them as human beings.

 

Helen Grossman

So, Morales happens in the late eighties. Is that correct? A after Baker versus Wade goes through the federal court system and Morales, there are four plaintiffs in that case. Correct. Five. Yeah. Ok. Five. And they're suing on, on similar grounds to Baker, but they're going through the state court system. What's, what's the strategy of going through federal versus going through state?

 

Wes Phelps

So Baker V Wade, we'll just start with the, at the end of Baker V Wade. So Baker V. Wade got a favorable decision from a federal district court in 1982 overturned the Texas sodomy law that was in effect until 1985. So there's a three year period where the sodomy law is not enforceable in Texas because of this district court ruling. But in 1985 the Fifth Circuit Court of Appeals in New Orleans agreed to hear the appeal in the case and they overturned Judge Buck Myer's ruling and they

reinstated the homosexual conduct law saying that the state of Texas had a legitimate interest in promoting morality in society. And that justified any invasions of privacy or equal protection that the law committed. Don Baker and his legal team then appealed that decision to the US Supreme Court. And at the same time, there's a case that came out of Georgia called Bowers versus Hardwick.

It was a similar case, there was a Georgia sodomy law that was similar to the Texas law, although it, it applied to everyone in Georgia, straight people, gay people, married people, unmarried people. And the Supreme Court agreed to hear that case first, Bowers versus Hardwick. And in that case, the Supreme Court ruled that there is no constitutional right to engage in sodomy and therefore state sodomy laws did not violate the constitution.

They were completely legal. So the fear now among activists is that the highest court in the land has ruled against them and that the Bowers V. Hardwick is a pretty strongly worded opinion. And the fear then is that if you continue to pursue queer equality in the federal courts, you might even get a stronger opinion against gay rights in the federal courts.

So queer activists across the country decided that the way forward after Bowers V Hardwick in 1986 would be to use state courts to try to get some semblance of queer equality and to perhaps eradicate state sodomy laws on the state level. So the argument in Morales V Texas was that not only did the sodomy law 21 06 violate the privacy rights of gays and lesbians, but it also violated this guarantee of gender equality in the equal rights amendment.

Because if you were a woman and you engaged in oral sex with a man, nothing wrong with that, right? This is completely legal. There's nothing in the criminal code that outlaws that. But if you change the gender of that person and now it's a man engaging in oral sex with a man, now it's illegal. And so according to the arguments in morality, Texas, that was a violation of the Equal Rights Amendment because it violated the gender rights.

It discriminated based on gender. They won at the district level, they won again at the appellate level. And it wasn't until they got to the Texas State Supreme Court that they lost and it wasn't because of privacy or equal protection or the equal rights amendment. It was because allegedly they filed their case in the wrong court.

 

Helen Grossman

Wow, that's such an evasive, way of handling that.

 

Wes Phelps

They just do that.

 

Helen Grossman

Yeah. Yeah. So what was the basis of Lawrence v Texas? Who were John Lawrence and Tyron Gardner? And why were they arrested?

 

Wes Phelps

Yeah. And this is a fascinating story. John Lawrence and Tyrone Garner were working class gay men. John Lawrence lived out on the eastern edges of Houston, not really even in the city of Houston. I mean, really far out there in Harris County. again, working class guy, he was a veteran had served in the military. what was somewhat older, I believe he was in his forties in the 19 nineties when they were arrested.

Tyrone Garner you know, had struggled with poverty. He was an African American man in his twenties again, had had struggled with poverty. And at the time of their arrest, Tyrone Garner was in a an on again off again relationship with a man named Robert Eubanks. And on this particular night in 1998 the three men had just spent the day moving some furniture and they had gone out to a tex-mex restaurant that night had drank a couple of margaritas.

We just kind of relaxing and then they went back to John Lawrence's apartment in the Colorado Club apartments on the east side of Houston. And as best we can tell what happened was Ro Robert Eubanks really drank a lot and that night he was drinking a lot. He, he was very intoxicated at the time and he was also known to be somewhat unpredictable kind of a loose cannon.

He often got jealous. if he thought that Tyrone Garner was flirting with someone else. And so that night Robert Eubanks got it in his head that Tyrone Garner was flirting with John Lawrence while they were sitting in John's apartment. just kind of relaxing after this long day. He got so upset at one point that he went downstairs to the courtyard of the apartments where there was a pay phone and he called the police and said, you've got to come to the Colorado Club apartments because

there is a crazy black man with a gun here. He didn't say black man. He used the N word. He, he often called Tyrone Garner to his face using the N word. So he says this to the police department. So Harris County sheriff's deputies showed up a few minutes later, Robert Eubanks was still outside of the apartment and so he guided them to the apartment door.

Now at this point, I, I'll give you the police version of what happened and then we'll go back and talk about what may actually have happened. But according to police, when they arrived there the door to John Lawrence's apartment was slightly open. so remember that they don't have probable cause yet to go into the apartment. Now may maybe they did if Robert Eubanks was sure that there was a dangerous situation happening in there, but it, it was kind of iffy, but they claimed that

the door was slightly open and when they knocked on the door, the door just kind of swung all the way open so they could see into the apartment, they claimed that there was no one in the living room that they could see. They then called out, identified themselves as police officers and asked if anyone was there. They said they didn't hear anything.

So they stepped inside the apartment. So the officers then walked down the hallway to the back bedroom door. This is John Lawrence's bedroom and they claimed again that the door was slightly open. And so they knocked on the door again, they claimed the door opened on its own after they knocked. And the lead officer, a guy named Quinn stated that he then observed John Lawrence and Tyrone Garner engaged in anal sex.

The officer right behind. Quinn reported that he observed John Lawrence and Tyrone Garner engaged in oral sex. Now, I don't know about you, but I think I could tell the difference between these two things. Nevertheless, this is the story that the officers give. There are about six officers. by this time in the apartment. According to officers, they then pointed their guns at John Lawrence and Tyrone Garner told them to stop what they were doing immediately and according to the

officers, they refused to stop. And Quinn actually says that John Lawrence who I guess was engaged in the, what we would call the active role in this, anal sex. Quinn says that John Lawrence looked right at him and smirked and continued having sex with Tyrone Garner. They claimed that they had to physically tear the two men apart from each other to get them to stop.

So that's the police version, according to John Lawrence and Tyrone Garner that night, they were not having sex that they were hanging out in the apartment. Robert Eubanks got upset, went and made this call. The police stormed in and when they were not cooperative, that's when the police got rough with them, handcuffed, them, dragged them outside.

So they're arrested and as they were being arrested, John Lawrence said several times we weren't arrested because we were having sex. We were arrested because we're gay. Now, when attorneys got involved in this, they told John Lawrence and Tyrone Carner don't say that anymore, right? Because if you weren't really having sex, then that means the district attorney might drop the charges against you.

And if they drop the charges, we're not gonna be able to challenge the constitutionality of the law. So you don't have to admit that you were just, don't tell the media anymore that you weren't having sex. But, you know, John Lawrence and Tyrone Garner were not activists. They were not plugged into the gay and lesbian, civil rights movement in Houston at all.

 

Helen Grossman, Helen Grossman

And so they became reluctant activists in this case, but they were willing to, to take it all the way to the Supreme Court and, and have their names in, in the case.

 

Wes Phelps

Yeah, they were willing to do it. II, I think they, they recognized what an important case this could be. Yeah, I think it was a tremendous leap of faith that they took, very courageous to become, the public face of this constitutional challenge to the homosexual conduct law, particularly since their economic situation was

already quite precarious. And, and, and it was gonna be there, this was gonna be a long drawn out case and, and they agreed to do it and I think they deserve a lot of credit for that.

 

Helen Grossman

So, you mentioned justice Kennedy, you know, he's sort of, he's a conservative justice but is known for his opinions on, you know, gay rights issues. He was a swing vote, supposedly considered that way for, for quite a while. what, you know, what did he write in his opinion? That was surprising or perhaps not surprising. What, what did, what did Justice Kennedy say about this case?

 

Wes Phelps

Yeah. Well, this, the, the opinion itself is based on the constitutional right to privacy. And, and, and that does become important later and I think it's still important today because the arguments that were made in Lawrence, V Texas were based on privacy and equal protection. Anthony Kennedy's majority opinion is based only on the right to privacy. And there are some very poetic moments in his decision as there are in Obergefell V Hodges and the marriage equality ruling.

I, I find what's most remarkable about Kennedy's decision in Lawrence, V Texas is how much he recognizes the inherent worth and dignity of same sex relationships on par with opposite sex relationships. He, he recognizes that this is an important part of being a human being is in making these private decisions to enter into a romantic relationship with another person and that we violate the dignity of human beings when we approve laws that criminalize them on that basis

 

Helen Grossman

in the Dobbs decision, Justice Thomas in his, in his concurring opinion, specifically calls out Lawrence and Obergefell and says that they should be reconsidered in light of the decision, right, in light of the the constitution, not having a right to privacy. Do you feel, I mean, obviously we can't rewrite history, but do you feel secure with Lawrence as the law of the land or like, what can we do?

 

Wes Phelps, Wes Phelps

We have to codify it in state constitutions in order for it to be the law of the land I absolutely do not feel secure.

 

Wes Phelps

in Lawrence, V Texas is always being there like we once thought it would be Clarence Thomas. He thinks that the only rights that the constitution conveys are the ones that are explicitly stated in the text of the constitution. He's really, I I know we often refer to thinkers like this as originalists. They're really textualists. You know, for example, he doesn't even think the due process clause in the 14th amendment conveys that many rights at all.

I mean, he, he sort of sees that as a an amendment that comes out of the Reconstruction years to guarantee that formerly enslaved people could own property and sign contracts. He doesn't think the 14th amendment really extends much further than that. So the issue there is if that thinking takes hold of more of the Supreme Court, then we're gonna be looking at a rollback of not only privacy rights but all kinds of other rights too, but certainly privacy.

And I think all of the major Supreme Court decisions that are based on a right to privacy. The, the, the birth control decision, Griswald and Eisenstadt Lawrence v Texas, all of these are in danger, you know, Obergefell V Hodges, even though it's also partly based on equal protection, I think is also in danger. because of this kind of retrenchment of the way we think about privacy.

What? Yeah, I mean, it really, it really, you know, points to that. We, we got to keep the, keep the fire going. I mean, this kind of organizational momentum that built up over these decades, we've got to keep that going. We've got to keep the pressure on.

Exactly. Exactly. I mean, that's why it's so important that we see this case, but other cases too, as part of this lineage of activism.

 

Helen Grossman

So, from your perspective and from your research, what components are necessary to fuel or to protect the movement?

 

Wes Phelps

Well, I think we have to make sure we understand how the legal system works. A lot of these victories that were won in the past were one at times where it didn't seem like victory was going to be possible. So I think we can't lose sight of that. But I also think we've got to think of this as a multi pronged effort. So we also have to keep up with protests.

I think protesting in the streets is absolutely beneficial to the movement as a whole. And I think we've got to keep educating people about how a return of sodomy laws would affect the lives of queer people all over the country, not just queer people in states that are gonna have their sodomy laws revived, but even people out of, out of those states, this is gonna affect them too.

You know, if you think about the debates we're having now about trans teenagers having access to health care and you know, drag shows. and that kind of thing, we can't give up on explaining to people just what these laws are going to do. I mean, I sort of have a feeling that most people who give kind of lukewarm support for these laws that would ban transgender health care and things like that, they don't know how that's gonna affect actual trans people.

And so we need to keep educating people on that. So I think as we see this and, you know, the attorney general of Texas has already said that if Lawrence V Texas is overturned, we're gonna be ready to enforce the sodomy law the very next day because by the way, the sodomy law is still on the books in Texas. Every meeting of the legislature since 2003, there has been a bill to remove it from the criminal code and it's been defeated every time and old fashioned or organizing and mobilizing.

I mean, we've got to get people to vote, we've got to get candidates, political candidates who care about these issues in office. So I think it's a multipronged approach. I, I don't think it's insurmountable. I mean, I'm pessimistic about what's going to happen with Lawrence, but I don't think these obstacles are insurmountable in any way. This is a long term movement and it's going to require a long term organizing and commitment and sacrifice.

 

Helen Grossman

I know that you state that Lawrence V. Texas didn't come out of nowhere. Obviously, it was built on this precedent and these decades of activism. But I wonder why this particular moment in 2003 was right. I mean, what do you think about this timing in particular? Was it the composition of the court? Was it changing pop culture, pop culture, changing public opinion? What, what do you think it was?

 

Wes Phelps

Yeah, I, I think it was a lot of different things. I mean, we could start with pop culture. I think, yes, pop culture had changed by 2003. you know, one of the things that, you know, the activist Harvey Milk, a board supervisor from San Francisco who was assassinated in 1978. I mean, one of his most important messages was this idea of coming out that it's important for people to come out, not necessarily for their own benefit.

Although there would be benefit to them of kind of being relieved of having to hide their sexual orientation. But the real benefit of coming out was to the rest of society because people would then know that their uncles or their brothers or their kids or their coworkers, people they knew and cared about and loved that they would know that those people were gay.

And if you know someone who's gay or lesbian, you have a much, there's much more chance that you're gonna be a supporter of equality for those people. And so I think, you know, if you look, I haven't looked at these numbers, but I think if you look at the number of Americans who knew a gay person in 1970 versus, versus the number of Americans who knew a gay person in 2003.

There's gonna be, it's gonna be an astronomically different number in 2003. So I think that message of coming out really did change the landscape and it made something like Lawrence V Texas possible. I mean, in 1986 when RV Hardwick happened, Lewis Powell claimed at the time and by the way, he voted to uphold the Georgia sodomy law and that, that's often seen as kind of the swing vote had he voted the other way.

History could have been a lot different. He claimed at the time he did not know a single gay person. There was actually a gay staffer who worked for him as part of his staff. So if you just think about the changes that happened by 2003, the vast majority of Americans knew a gay person and they understood even if, even if they didn't understand what it was like to be gay or lesbian, they understood that equality was important for these people because now these people are someone that

they know that they love, that they care about. A couple of other historians have made this argument about the turn of the millennium kind of made people think we were living in the future, right? They kind of had this mentality that now we're in the future and things are going to be different. And so maybe that played a part in the way Americans thought about sodomy laws like this is kind of a, a relic of the past.

And should we really be criminalizing private consensual behavior between adults anyway, so that may also have played a role in it? I, I do think the zeitgeist had changed by 2003 for those reasons. And as I argue in the book, this, that the path had been laid and certainly Anthony Kennedy and undoubtedly the other justices had read up on these previous cases.

It's interesting to think about the era we were living in too, like so 9 11 had happened and the, the invasion of Iraq was in the spring of 2003 and this is just a few months after that, I would just think about where I was at that moment. I certainly was not thinking about the Texas sodomy law.

 

Helen Grossman

Right. Yeah, I mean, it's such an interesting time. That's why I'm doing this podcast. It is this really interesting, I don't know, tornado of different things, creating this chaos that ultimately has things that are really retrograde, but also that push movements like this forward, like this decision. Yeah.

 

Wes Phelps

And you know, it would be interesting, I actually don't know, if the White House issued a statement about Lawrence V Texas. But it's in the wake of this, you know, Justice Scalia wrote this scathing dissent in Lawrence v Texas, which basically said this is gonna open the floodgates to the homosexual agenda, right?

And you know, it, it's gonna be gay marriage next. he, he was right about that. thank goodness. but it's in the wake of that, that we start to see state constitutional amendments defining marriage as between one man and one woman. And George W Bush actually supported that at the federal level too.

 

Helen Grossman

OK. Well, we've been, we've been going for a while now, so I but I, I really appreciate your time. Thank you so much. It's been so informative. where can people find you and where can they find your book?

 

Wes Phelps

So my book is available anywhere online that books are sold. Amazon Barnes and Noble. You can also get it from the University of Texas Press website. I believe they have a 25% off code on there when you order it directly from the publisher. And you can find me on my faculty page at the University of North Texas if you Google Wesley Phelps, UN T. I'm also working on a companion podcast right now called Queering, The Lone Star State, which is going to be a 10 episode narrative podcast

series. Each episode will delve a little bit more deeply into a single case from the book. Those are gonna start, those episodes will start dropping in June during pride month 2023. And our website is queering the lone star state dot com.

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Helen Grossman

Thank you again to Wes Phelps from the University of North Texas. The link to his book before Lawrence versus Texas. The making of a queer social movement, as well as the link to his newly released podcast are in the episode description, be sure to check them out. And just as a follow up, I looked up whether the Bush administration responded to the Lawrence decision and the most direct response I could find was in February 2004, President Bush came out in support of a

constitutional amendment banning gay marriage as a candidate for Governor of Texas in 1994. He said he opposed the repeal of the sodomy law because the law represented a symbolic gesture of traditional values in honor of the 20th anniversary of Lawrence versus Texas. Our song of the week is a celebration. It's a celebration of love of believing in love, specifically believing in a thing called love.

I believe in a thing called Love is A Banger by The Darkness. A British band from their 2003 album Permission to Land. You'd think hearing the band name The Darkness. That this song would be more like our song of the week from Episode two. Evanescence Bring Me to life. But that's one of the many, many things about this song that puts a smile on your face.

It's an unabashedly glam metal jam with incredible falsettos and a hook that had everyone screaming. I believe in a thing called Love in their highest cracking teenager voice in 2003. So this week, let's believe in it. Our song of the week is The Darkness. I believe in a thing called Love.

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Helen Grossman

This was episode five, Lawrence versus Texas with Professor Wesley Phelps. I'm Helen Grossman. I write, produce, edit. This show theme music is by Luke Schwartz and Evan Joseph of Sawtooth. Our show art is by Maddie Herbert of Dame Studio. If you like the show again, please rate it and review it. You can also follow us on Instagram at class of 03 pod or send us an email class of 03 pod at gmail dot com. Thanks again for listening.