Lawrence v. Texas Part 2 with Marcus McCann

"Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." 

— Justice Anthony Kennedy 

This week, Marcus McCann brings us to the end of our story of a few good men who challenged Texas' anti-sodomy law, and ended up changing the law of the land—and we ask what becomes of the people who bring the rest of us closer to freedom.

Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas 

Marcus' book Park Cruising: What Happens When We Wander off the Path 

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https://houseofanansi.com/products/park-cruising
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Transcript

YWA-Lawrence vs Texas pt 2

Sarah: There's so much injustice to fight. I simply don't have time to go to the bar. Self-care who? You do have to go to the bar because this is how you find out about Supreme Court test cases. 

Welcome to You're Wrong About. I'm Sarah Marshall and today we are bringing you part two of our two-part episode on Lawrence v. Texas with our friend and guest Marcus McCann. As you know, if you listened to our last episode, Lawrence v. Texas is a case from a very recent year like this millennium recently that decided as to whether states could criminalize sodomy between consenting adults, which in practice often amounted to criminalizing gay sex or the idea of it between consenting adults.

If you haven't listened to part one, this episode will be hard to follow, but I can't tell you what to do with your life. If you want to be confused, you can do that too. We've been doing, maybe not a lot, but more than we've ever done before of Supreme Court and Supreme Court adjacent episodes this fall. It's what being on the cusp of an election brings out in us, maybe. 

And if you like what you hear in these episodes, and you haven't listened to some of our recent offerings, I would love for you to check out our episode just recently on The Jane Collective with Moira Donegan, and on the Supreme Court itself, and why it is the way that it is, and could perhaps actually be very different despite all claims to the contrary. And that was an episode with Mackenzie Joy Brennan, another wonderful guest.  

We have been very lucky to be able to have incredibly smart, funny, compassionate people on to tell these Supreme Court related stories. And I'm so happy to continue this trend today. If you want more Marcus McCann, you can hear the episodes we did with him on George Michael earlier this year, where you can read his book, Park Cruising: What Happens When We Wander Off the Path.

And if you want some bonus episodes, we have some over on Patreon and Apple+ subscriptions for you. And we have one coming out later this month on the mystery of Somerton man, one that I have personally been very invested in for nigh these past 20 years. 

And that's it. Thank you so much for joining us. Your time is valuable, and everyone is competing for it harder than ever. Thank you for being here. Here's our episode.

Marcus: So now let's return to Houston. It's still the night of September 17th, 1998. John and Tyrone are being led out of John's house in handcuffs. The police don't let John get dressed. He's wearing a t- shirt and his underwear. And in protest, John is refusing to walk on his own. And so the police drag him down the concrete stairs and put the three of them in a cop car.

Sarah: A lot of unnecessary force in the story already. 

Marcus: It's just like, you know, bad decisions being compounded by the police not responding with compassion. 

Sarah: Well, this is why we need a helpline run by sober lesbians. 

Marcus: Yes, put that in a constitutional amendment. 

Sarah: It makes more sense than a lot of the other ones, so that's my argument.

Marcus: Officer Joe Quinn takes Tyrone and John to the police station. John continues to be uncooperative, but Tyrone, he's being quiet and compliant, and it's during this time that Officer Joe writes what's going to be the only version of events that the court is ever going to see. And it's less than a hundred words. Let me send it to you. I can hear from your response that you're not expecting a true and accurate retelling. Okay, I sent it to you by email. 

Sarah: “Officers dispatched to 794 Normandy number 833 reference to a weapons disturbance. The reportee advised dispatch a Black male was going crazy in the apartment, and he was armed with a gun. Officers met the reportee who directed officers to the upstairs apartment. Upon entering the apartment and conducting a search for the armed suspect, officers observed the defendant engaged in deviate sexual conduct, namely anal sex with another man.” 

Marcus: What do you think about that statement? 

Sarah: Well, it's interesting that we don't get follow through on the weapons thing. It's like, well, they said he had a gun and he turned out to be having anal sex. And I feel like the implication is like, so, you know, that's as bad or worse.

Marcus: It's kind of interchangeable. Yeah. 

Sarah: Definitely written in the spirit of like, nobody's going to read this thing.

Marcus: And I do think it's interesting that this is the only version that's going to get entered in the court records. We'll see, as this goes up, it's sort of intentional. For now, I mean, they're at the police station for about two hours, and then they're taken to the Harris County Jail. And at the jail at the time, there's a small courtroom on site, which is where the initial arraignments take place. So they spend the night in jail and in the morning they're taken to the courthouse. 

Sarah: And just to be clear, for myself and other bimbos, let me tell you my understanding of an arraignment and then you can be like, No, Sarah. But an arraignment in law and order, which is what I have in lieu of law school, is where you first show up in front of the judge and they're like, here's what we're charging you with. And your lawyer has a chance to be like, Hey, or something. And then the prosecutor and the defense attorney flirt a little bit. 

Marcus: Yeah, I'm not sure how much flirting was happening on this particular morning. But yeah, that's right. When it comes to more minor offenses, even at the first appearance, sometimes people will plead guilty, get a fine, and then that's the end of it.

Sarah: Because I assume that for a lot of people, it's like, well, I can be done with this now, or I can have to hire a lawyer. 

Marcus: Yeah. And continue to take days off work to make court appearances subsequently, for sure. 

Sarah: Right, which even if you have a wonderful free lawyer, the cost in terms of your time and energy, I'm sure is often gigantic.

Marcus: Well, right. I mean, they both plead not guilty, but they don't know that they're going to have a free lawyer at this point. They're not connected to the gay community or to activism. And I think it's safe to say neither of them are running in circles with kind of like white shoe fancy lawyers. 

Sarah: So few of us do. And also so few of us, I think, think to ourselves as our civil rights are being violated, hey, my civil rights are being violated? And I think that part of the fear over kids learning social justice is the fear of what happens if people, especially young people, get organized. Not to bring everything back to Newsies, but the newsboys strike briefly before it was busted up by big newspaper struck real fear into the hearts of capitalists all over the place because for a while it looked like all child workers were going to unionize, which was kind of a scary thing in 1899.

Marcus: Well, right. And you can't judge the success or failure of a particular popular intervention solely based on whether it accomplished its stated goals. The ripples just go out. And that's a good example of something where you can come to a sort of draw ultimately on the thing you're actually fighting over. But what you're really showing is that workers have power, that young people have rights. And those are beliefs that have been very instrumental in the last 120 years. 

Sarah: And then maybe there'll be a musical about it. And the world will feel the fire and finally know. 

Marcus: I wonder if there could be a John and Tyrone musical.

Sarah: I think so. Well, here's, okay, here's a theory I have, and I don't think I've told this to you before, but I have a theory that Americans, I mean people really, but Americans are the people who I know and trials whose procedures I understand vaguely, but that Americans love trials and the idea of, I mean, certainly we love the idea of it more than the thing itself. I think we want a trial to be like a musical. 

Because when you think about it, the point of a musical, I mean, there's many points to a musical, but one of the things that happens in it is that everybody has their say. Every important character, including the town, often, is able to take you inside of themselves and show you what it's like to be them. Even if it's a villain song like Hellfire in Hunchback. That our dream for a trial is that everybody will get to express in a way that can perhaps even change people's minds, what their human condition is. And I think that's what we want trials to be. And I think that they can be that to an extent, but there's a lot else going on.

Marcus: Yeah, maybe we expect them to be a bit like the trial in Chicago. 

Sarah: Yes. 

Marcus: It's a story about competing narratives. And whoever's the best story teller. 

Sarah: And ventriloquist. 

Marcus: Right. Whoever the best storyteller is, that person wins. And John and Tyrone aren't going to get that kind of a court appearance really over the whole course of, of what happens next. And in John and Tyrone's case, because it's going to turn into this constitutional challenge, a kind of test case, the lawyers are not going to have any desire to litigate the question of whether or not they were having sex. The question is whether they were allowed to have sex if they were. 

Sarah: It seems like most people end up in the position of being a Supreme Court plaintiff kind of by happenstance.

Marcus: Yeah. I mean, there are what are sometimes called cooked cases where somebody who wants to make a constitutional argument will create the circumstances that give rise to the case. And more often than not, it's something in the middle, which is like this one where it's like out of all of the kind of soupy reality of daily life, we're going to zero in on a very small sliver in order for that to be the focus of the challenge. John and Tyrone are discharged from the police station, actually quite late, after midnight that night. They hail a cab and go back to John's house. John has to go back into the house to get his wallet to pay the cab driver, right? Because he didn't have his pants with him. And Tyrone crashes on his couch that night, and in the morning, takes the bus back downtown to his brother's, where he's been living. And from then on, John and Tyrone are basically not going to see each other, other than in stuff related to this case. 

Sarah: Hmm. And they didn't know each other that well before, right? 

Marcus: Yeah, that's right. Tyrone and John really know each other through their mutual acquaintance, that firecracker, Robert Eubanks. 

Sarah: Yeah, it's funny to think about the thing itself being over and now it's sort of like this comet with a massive tail. 

Marcus: And, but initially there's no tail, really. The arrest was not reported in the newspaper the next day. And so the only reason that they end up getting connected to the constitutional lawyers that are going to end up taking this case forward is because of queer gossip.

Sarah: Nice. 

Marcus: Queer gossip, there's like academic treatments of queer gossip as being one of the things that connects us in a way that's different than in straight life. Loose, associative nets of connections to other queer people end up being strengthened by stories we tell each other about other people when they're not there, essentially. 

On September 18th, the day the men are arraigned, it's a Friday, and one of the Harris County clerks sees the homosexual conduct charges and he's quite surprised.  They're very unusual. And the clerk is gay, he's closeted at the time, but he lives with his boyfriend who happens to be a police officer. And so the clerk tells his cop boyfriend, and they're both kind of marveling at this, and that night they go out to the gay bar. The gay bar, it's not around anymore, but it was called Pacific Street in 1998. 

One person I do know was there was this, like, hot bartender named Lane Lewis. And so it's kind of early evening before things get really rocking at the bar. And the clerk and his boyfriend are talking to the bartender, and they mention the case. And Lane is our first character who's actually involved in queer and trans rights in any way. 

Sarah: Mm hmm. 

Marcus: He'd been involved in the Houston Gay and Lesbian Political Caucus, among other things. And so when the boys tell him this, a light bulb goes off, he understands the importance of it. And so he asked the guys to send him the arrest report. I think that's probably not something he was supposed to do. But when Lane gets home at the end of the night, there it is in his fax machine. And he clocks it right away as a potential test case. 

Sarah: Wow. See, what I like about this part of the story is that if you're listening and you're like, ah, there's so much injustice to fight, I simply don't have time to go to the bar. Self-care who? You do have to go to the bar because this is how you find out about Supreme Court test cases. 

Marcus: We've been organizing in the bars for a long time, right? And you know, for example, on the night of the White Night riots in San Francisco after Harvey Milk was killed, people were urged, you know, out of the bars, into the streets. It was like a pretty common refrain in the 70s and 80s, organizing people who are meeting for social purposes at gay bars to do political things. 

Sarah: I love that. I want to hear more about the importance of gossip in a healthy community and in a healthy society and I'm really happy that this is one of our themes.

Marcus: Let's just start by saying gossip gets a bad rap. We think of gossip as being about betrayal. 

Sarah: Well, it's something that women do so it has to be evil and stupid, historically. 

Marcus: It's something that women do and something that gay men do. 

Sarah: Yeah, so there you go, Satan. 

Marcus: I think when straight men do it, it's not called gossip. Is that right?

Sarah: When straight men do it, it's called the stock exchange. 

Marcus: Yeah, and this is maybe a good example because technically there is a betrayal of trust that's happening here, where private information is being disclosed to somebody who has no right to know it. But the consequence is going to be good, ultimately, I think, for John and Tyrone and also for queer and trans people in the United States.

Sarah: Well, what you're talking about just makes me think, and this is very off the cuff, but the way things function in a community, in any kind of actual community where people are not going to be saying nice or uncontroversial things about each other all the time, but also to talk shit about somebody means that you know who they are and are thinking about them in a very general way, you know? Not that that's what's happening here, but.

Marcus: I think that's right. And I also think there's something about queer gossip that the band of things that is morally blameworthy, bad conduct, that kind of gossip, is actually a narrower band than you might think in communities where we've broken a lot of social norms already. So the gossip isn't necessarily saying something salacious so that we might collectively punish the person who's the subject of the gossip.

Sarah: Right. Because of course, if you take the approach of like straight suburban lawn gossip, then we can't judge the standards of gossip in a subculture in a marginalized subculture by what gossip is in American puritanical history where it's about trying to find a scapegoat for stuff all the time.

Marcus: Right, right. And that's not to say that it's always saying things that are morally neutral. It’s also warning people about potential bad dates and all kinds of things like that in a system where there's a low level of trust for the state to intervene. Gossip can operate among women and among gay men as a way of protecting your friends from a bad time.

Sarah: Yes. And then men get so mad when women tell each other that one of them is scary as if the solution isn't just to not be scary. 

Marcus: Yeah. Let's put that in a memo, put that in the newspaper. 

Sarah: So much of the show is about talking about the dangerous spread of misinformation and thinking about useful vectors of information. Here it’s so great, and I love that it just makes such sense that one of them is a bartender.

Marcus: Yeah, it just feels cheerful and lemon scented version of it. Yeah, because of this information, Lane tracks down John Lawrence, and you know, guess what? John's still angry, and Lane says, let me connect you to a gay rights lawyer. The first lawyer that they get connected to is a guy named Mitch Katine who had been doing sort of movement work around AIDS, among other things. And he's not a criminal defense lawyer, but he starts kind of acting as the hub roping in other lawyers, including initially a criminal defense lawyer at his firm. 

He's also the guy that contacts Lambda Legal, which is a queer and trans rights legal group, and speaks to Suzanne Goldberg and Ruth Harlow, who are two people who work at Lambda Legal. So before anyone's decided what to do, John and Tyrone meet with Mitch, Mitch brings a criminal defense lawyer as well to the meeting. They're proposing to use this case as a test case. They don't get all the way through the meeting because who shows up but Robert Eubanks. 

Now, Robert Eubanks, if you recall, was charged with making a false police report. He's already pled no contest and was sentenced to 30 days in jail. He serves part of it, he's released, and then he shows up at this meeting. My understanding of what happened in this meeting is that he was a bit disruptive, and so they kind of made him go wait in the reception area while the lawyers talked to him.

Sarah: They're like, go get a cookie from the vending machine. 

Marcus: Yeah, right. That's worked out well in the past. The strategy that they decide to use is that the two men are going to plead no contest, as in, they're not going to, disagree with the underlying facts as alleged by the state. And then they're going to challenge the constitutionality of the sodomy law.

Sarah: Interesting. Okay. So pleading no contest is like being like, look, I did it, but I wouldn't exactly call myself guilty because why is this a law? 

Marcus: Well, I mean, people plead no contest for all kinds of reasons. 

Sarah: Okay. Please explain this to me so I don't spread misinformation. 

Marcus: I mean, it's just such an American way of dealing with this. As opposed to pleading guilty, no contest is sort of accepting the punishment without making it necessarily an official statement. 

Sarah: Interesting. 

Marcus: Like you're not going to contest the factual underpinning. 

Sarah: So it's like, I'm guilty, but I don't personally feel myself to be guilty.

Marcus: Well, I don't want to speak out of turn. My understanding is that there was a time before No Contest when if you were not able to say under oath, I am guilty of the underlying facts, then you couldn't take a plea deal. And so No Contest sort of skates that line.

Sarah: That's fascinating. 

Marcus: ‘No Contest’ is a useful plea here because you don't get into the kind of complicated and disputed factual issues. And so it's for that reason that only the short summary from Officer Joe Quinn is put up in evidence. 

Sarah: In this case, they're accepting the charges but disagreeing with the constitutionality of the charges.

Marcus: I don't know if this is true in every case. But, that was what these lawyers felt they needed to do in order to be able to bring the challenge beyond the initial courtroom that they appear in. That they would challenge the constitutionality, and then when that fails, they would plead no contest, and then they would take that conviction up on appeal, and then be able to go through the various levels of the Texas appeal courts, and then to the Supreme Court. 

By all accounts, Tyrone is mostly quiet during this meeting. And he will later say he didn't feel like he had the option to pay the fine, which was about $200. Because he didn't have the money. But John and Tyrone never faltered. They never threatened to withdraw from the case. They never second guessed their involvement. And they both, in the end, are going to speak positively about it. 

So this isn't a case where the test case litigants end up feeling burned by the process. I also think it's just a testament to Tyrone and John and their anger at what had happened. They could have turned this into something very short and put it behind them, and instead they carry this case around with them for the next five years.

Sarah: God. Yeah, and I mean, is that the kind of thing that you personally would be willing to do? 

Marcus: I, because I'm a lawyer and a bit of a control freak, the idea of giving my story and my case over to this process would be just so, it would be so difficult for me to countenance, you know? I'm not saying no, I wouldn't do it, but… 

Sarah: Yeah. 

Marcus: It would be a tough thing to do. What do you think? 

Sarah: Oh my God. I feel like it comes down to like, yeah, your belief, that you have to really believe in it. Or need it, or both, and I guess both at the same time are the most compelling, but I don't know. It's a horrifying thing to think about it because you don't know how long it's going to go on.

Marcus: Right, right. 

Sarah: An aspect of your life is going to become part of the textbook. 

Marcus: I mean, if you're lucky, right? If you're lucky and it's successful and the Supreme Court agrees to hear it. 

Sarah: Right. Or it just becomes one of the many cases that don't make it that far and yet still ransack your life for potentially years. But I do kind of think yes because it's the kind of thing that I would be able to continue with out of spite, because if it was something that I was mad enough about, I think that that would really, I would at least be very tempted to do it and I might regret it later. 

But for everything that we're talking about as reasons why it is not the sort of great, inspiring movie about our legal system type victory that we would like it to be, it does still feel like this very real way to do battle with America in a way that's good for us all. 

Marcus: Yeah. Tyrone gives a quote after the first stage of this legal proceeding, which is just justice of the peace court. And he says at that time, ‘I feel like my civil rights were violated and I didn't do anything wrong.’ So I do think that there is a kind of just anger and justice and a decision not to let it go. At this first appearance, which is November the 20th, 1998, they plead no contest. They're initially fined $100 each, and it's a problem because in order to be able to appeal a fine in this court, it has to be more than a hundred dollars. 

The lawyers for John and Tyrone have to ask for a larger fine and the justice of the peace agrees to fine them $125. John gives a quote comparing the police to the Gestapo. And after that press conference, they're pretty rarely going to be asked to speak about what happened until after the Supreme court decision. 

Then on sort of a personal note, a few days after the press conference on November the 23rd, while Tyrone is asleep, Robert Eubanks calls the police on him again. They're living together at this time in a boarding house. He accuses him of assault with a belt. Within a couple of days, the charges were dropped. 

Sarah: What do you think is going on in this relationship? 

Marcus: It's hard to tell. My impression is that Robert's a liar. And so it's hard for me to trust anything that he says. And I do also think that there is a particular way of wielding racial power that's happening when Robert feels like he is safe enough or going to be believed when he goes to the police and that Tyrone's not going to be believed.

Sarah: It is, especially after the outcome of the last event, you do feel like Robert Eubanks is not spending enough time in a calm frame of mind. 

Marcus: Right. And it's just not a reliable narrator. So I'm not saying no, I'm just saying, I don't know. The sodomy case was next heard at the Harris County criminal court in December of 1998. They file a motion to quash on constitutional grounds, which is denied without oral argument and without a response from the state. And then John and Tyrone have to plead no contest again, which they do. And then they appeal again. 

Their next level of appeal, this is like a whole year later. So now we're in November of 1999, and it's to the 14th Court of Appeal of Texas. It's here that the two cases are consolidated. And so from here on in, they're referred to as Lawrence et al. v. Texas. Also from here on in, the case is going to be primarily in the hands of lesbian lawyers from Lambda Legal. 

Sarah: Oh, great. Wow. The three L's. 

Marcus: Right. So like Suzanne Goldberg, she's the one who wrote the original motion to quash. It's argued on appeal by Ruth Harlow. And it's also at this stage that the lawyers start referring to the underlying conduct as intimacy, compared to the DA who's describing it as a right to anal intercourse. 

Sarah: What? Yeah, what do you think about that? Tell me, tell me your analysis of that.

Marcus: It's a tactical decision, obviously. There is a desire to get away from the squidginess, the specificity of what sex entails. And to get to something that maybe there's more of a societal consensus around accepting or thinking it's valuable. When this case gets up to the Supreme Court, one of the main ways that they're going to frame this is to say, in a family unit, sex is an important, integral part, it's part of what it is to be in a relationship with your adult partner. Why is it that gay couples, when they're a family, can't have sex together? 

Sarah: Mm hmm. 

Marcus: And in fact, the idea being that the sort of sexual aspect of a relationship is part of what brings people together and makes them connected. That kind of bond of intimacy is part of what makes for a lasting relationship.

Sarah: Right. And the idea of, I guess, importing the general if unspoken acceptance of that idea in straight American culture and suggesting that perhaps gay people exhibit similar behaviors. Crazy, right? 

Marcus: Right. And so, I mean, I agree with that as far as it goes. It is, of course, only part of the story because there are lots of people in long term committed relationships where sex ebbs and flows or may not be part of it. And the right to a kind of sexual privacy or a right to engage in making intimate decisions about your body doesn't start or end when you're talking about a family unit. Like a lot of the sex that we want to protect their right to engage in it is not coupled monogamous sex within a family.

Sarah: But it's kind of, I guess, tactically picking what maybe seems like an acceptable door to go through for a judge, I suppose, in this narrative. 

Marcus: The history of this particular vein of American jurisprudence, it comes from Griswold v Connecticut, which is a case about the denial of contraceptives to a married couple. Which was then later expanded in Eisenstadt and Baird to non-married couples. And it also comes from Loving v. Virginia, which is a case about anti miscegenation laws, about banning interracial marriage, and of course Roe v. Wade. But the arc of those cases begins with this kind of question about the familial or marital bond and privacy within that relationship. And so you can see why the lawyers who are making arguments about this sodomy case want to frame it up as having a parallel in those cases. 

Sarah: It also, this is a side thing, but Loving v. Virginia was decided in like what, 1965? Sometime in the mid 60s? 

Marcus: Yeah. 

Sarah: So, you know, interracial marriage is a legal right in America is younger than Julianne Moore, just pointing that out.

Marcus: So they're relying on that vein. They're also making a second argument, and there's a disagreement among the lawyers about whether this is potentially a winner, but they're describing it also as sex-based discrimination. 

Sarah: Hmm. 

Marcus: Because in this case, whether the conduct is illegal depends entirely on the gender of the defendant. Part of the discernment of a lawyer is to try to figure out what are the things that are most likely to work and to focus on those. These are the two prongs that are going to be the arguments that go all the way. And when it gets to the Supreme Court, this sex discrimination argument is going to take a back seat. 

But it's interesting because at this three-judge panel of the Court of Appeal, who, by the way, are all Republicans. They ruled on June 8th, 2000, by a two to one vote, that the homosexual conduct law is unconstitutional. They strike it down. The 14th Court of Appeal doesn't have a great reputation among legal thinkers across the country. And I, I don't think that there was any expectation that they were going to be successful here. So it's like a surprise to everybody. And it struck down as contrary to the state's equal protection legislation. 

Sarah: Do we have a sense of, of their reasoning? When you're in a circuit court, do you also write an opinion and a dissent? Do we have that? 

Marcus: Yeah, we do. And they're basing it on real lock stock classic equal protection here because you have a class of persons, which is queer people, who can break a law that straight people can't break. And the DA, when faced with this argument says, well actually no, straight people can have gay sex, they just don't. So anyone can break the law. And the court's not buying it, just like at a practical level. So they find that it's discrimination. 

At the time, the idea that an anti-gay or anti trans law could be sex discrimination, this was not yet accepted. And there was some question among activist lawyers about whether it would be ever accepted. In fact, it won't get accepted by the Supreme Court in the United States until 2020. But maybe not surprising, this is 2000. There's a huge backlash from Republicans against these two judges. And so the 14th Court of Appeal agrees to hear it en banc. And that means that all nine judges sit and they reconsider the decision of the panel of them.

Sarah: Isn't that double jeopardy or something? Are they allowed to have do overs? 

Marcus: It's not something that happens all the time. It's pretty rare. And I think it's something that they do in this case because there's a lot of pearl clutching among Republicans. Maybe even some fear about election cross backs because these judges are elected also.

Sarah: It does seem like a tough one from a nineties Texas Republican standpoint where it's like, on the one hand, is there anything more libertarian than the right to have whatever sex you want in your own home with a consenting adult? That feels very libertarian to me, and therefore Republican friendly. This is just me guessing wildly, but I can imagine a sort of like, brain breaking confusion over the matter. 

Marcus: Yeah, I mean, I think people are able to hold contradictory views when it comes to this kind of thing. You're absolutely right. 

Sarah: Evidently. 

Marcus: That a libertarian point of view, you would say this is private conduct, if it's not hurting anyone else, why should the state regulate it at all? And it's also interesting because the left doesn't love the libertarian arguments, we prefer the kind of equal protection, protecting minority groups arguments. 

Sarah: Mm hmm. 

Marcus: And so it involves the left accepting what would be a sort of classic right libertarian argument here.

Sarah: Because if you can't have anal sex in your own apartment, then like what's next? The right to hunt feral hogs with a knife? 

Marcus: Don't worry, that's safe. Well, and this is the issue, right libertarian Republicans don't see prohibitions on gay people having sex as being a slippery slope to anything.

Sarah: That's interesting. 

Marcus: Is it weird that I used ‘slippery’ in that sentence? 

Sarah: Well, I mean, now it is for anyone who missed it earlier. People often remark that I miss very obvious puns at the moment, and I really do. But I notice them later when it's too late to do anything about it. 

Marcus: Just add a little laugh track in there.

Sarah: So, okay, so they, they have a do over. 

Marcus: Well, right. So this do over, the parties are asked to submit written materials. And then the court says, we don't need to hear oral argument. 

Sarah: We need anal argument. I'm so sorry. I'm sorry. 

Marcus: We went there. Inevitably it would happen at some point. 

Sarah: I got one and that was my one. Yeah. I just can't do it again now. 

Marcus: So they don't hear oral or anal arguments. And on March the 15th, 2001, the nine-judge panel overturned the three judges’ decision by a seven to two. 

Sarah: This is what I don't like about our legal system, the arbitrary do overs, and the fact that judges sometimes apparently can just kind of do whatever they feel like. It's not good. 

Marcus: It's not a surprise to the litigants and they're just basically like, we got to burn through all of this, get through Texas in order to be able to get to the Supreme Court. So the next thing they do is they file a petition for a discretionary review with the Texas Court of Criminal Appeals. 

Basically, they sat on it for a year before denying it without hearing arguments in April of 2002. And that's what the lawyers needed. They've exhausted their levels of appeal at the state level. And now they're ready to apply for cert at the Supreme Court. 

Sarah: I'm not going to make us do too much Latin but tell us what cert is while we're brushing past it.

Marcus: Right. There are obviously thousands of cases that are heard in the United States every year, and even at courts of appeal, and the U. S. Supreme Court can't hear them all. And so you file an application, a cert application, asking the Supreme Court to agree to hear your case. The Supreme Court can say yay or nay. I believe it's any group of four judges on the Supreme Court can agree to hear the case and then it gets heard. So you don't actually need a majority to say yes, you just need four. 

Sarah: Yeah, thank God. That would take forever. 

Marcus: Well, I mean, it's kind of a dangerous terrain to be in because you can get cert based on four judges agreeing to hear it. And then you're wondering, where am I going to get my fifth vote? 

Sarah: Hmm. Hmm. 

Marcus: The case has just gotten cert. It's going to the Supreme Court. This is in 2002. It's going to be heard in the winter spring of 2003. 

Sarah: But okay, spring 2003, a very short four and a half years since the beginning of this journey. Lovely. 

Marcus: Totally. Totally. And maybe I'll just catch you up on what's happening in John and Tyrone's life while this is going up the chain. Early in the new year of 2000, Robert Eubanks files a restraining order against Tyrone. He claims that there's a string of violent encounters, including that Tyrone had punched him, hit him with a hose, stabbed him in the finger with a box cutter, and he does get a temporary restraining order. But it's dropped, and they continue to live together and that on its own obviously isn't evidence of anything. People live with their abusers, right? 

Sarah: Especially in this economy. Yeah. 

Marcus: Well, right. And both of them are precariously housed and they're doing odd jobs and it's not like they can just rent another apartment somewhere. 

Sarah: I guess you just feel like regardless of what we can believe or not, it doesn't seem like things are going very well.

Marcus: No, I think you're right. And then, late on October 10th, 2000, Robert Eubanks is beaten badly by an unknown attacker on the street, probably while he's waiting for the bus. 

Sarah: Mm hmm. 

Marcus: And he drags himself back to the apartment where he and Tyrone live together, and he's bloodied from the beating. He's got scrapes on his hands and knees from crawling home. And Tyrone calls 911 for him at 4:15 in the morning. He goes to the hospital where Tyrone's not allowed to see him at the hospital, and he dies. 

Sarah: Oh my God. 

Marcus: Robert Eubanks, yeah. And Tyrone's excluded from the funeral by the Eubanks family. The autopsy says blunt force trauma to the head. And Robert Eubanks murder remains unsolved. What do you make of those circumstances and the fact that it remains unsolved? 

Sarah: Yeah. The police involvement throughout the story is a really interesting and telling part of it. And of course, I don't know, yeah, the first thing that that makes me think of is that you have someone who could get the police to come to do a whole lot of stuff by making a false report in a moment of not making good choices. And God knows the police were very responsive to that, but if you're in real danger, then they're nowhere to be found. 

And also, I mean, I'm struck by how if it's true that he's ambushed while waiting for the bus, that one of the big parts of the story is how vulnerable people are when they don't have better transit. Because it might be irrelevant in this instance, but the fact of the story starting when people are kind of far out from the middle of the city and can't get back home easily that night. And then being in this vulnerable position, waiting for transit and public in a time and a place where you're especially vulnerable. 

Yeah, it feels like confirmation of the fact that if even if you your case is going to the Supreme Court and maybe it'll change things and rights will be different and progress is happening, that it doesn't affect the day-to-day safety in their daily lives of any of these people and everybody's life is still incredibly dangerous through no fault of their own.

Marcus: Yeah, right. The people without resources have to live their life in public or without the kind of protective layer that people who have more resources get.  It's not surprising that the history of the prosecutions of gay people for their intimate acts is one where often the people who are caught or were doing it in some degree of public. 

And that's often because of circumstances that don't allow for them to have that kind of sexual encounter in their house. And so it's kind of private sex on premises establishments and parks and places like that that tend to get raided and is the source of the bulk of the charges.

Sarah: Yeah, and I feel like, and we talked about this when we talked about George Michael, but the sort of stigma on public sex, I think, is based a lot on the sort of unspoken idea we sell of like, well, it's terrible because children will see it, and they'll be scarred, and it's very antisocial. And, that, to me, first of all, supports a dangerous and age-old conflation between gay people and, I hate to use the term, but sexual predators, because that's who's being implied. If you think about it, like, where is a child more likely to encounter sex, in their own home in their parents’ bedroom, hopefully or in a park in the middle of the night. 

Marcus: Yeah in my research on the subject, the conclusion I've come to is that people who are cruising in bathrooms and in parks take enormous steps take lots of steps to prevent  non participant witnesses and they do that I think out of care for their community and also because if they're afraid about being outed or being caught by the police, then engaging in a kind of flagrant way is counterproductive to their own goals as well. And it's something that young people learn from the adults in their life and from culture, right? So if we taught young people different things, then I think adults would believe different things about that. 

Sarah: I've been listening to That Mitchell and Webb sound, which it was a radio show and then it became a TV show, but it's a lot of the same sketches and characters. And there's a recurring sketch that's like two snooker commentators, which I just find very comforting as a concept. And there's one where they're talking about their own homophobia. And one of them is like, “What I found reassuring about the gays was when I learned that they won't have sex with you if you don't want them to.” 

Marcus: Yikes. Well, just in, I mean, just in terms of Tyrone's life during this period. He's dealing with a lot. Both Tyrone's parents get sick during this time while the case is winding its way through the appeals courts and his father has his leg amputated and actually he has to deal with the death of both of his parents prior to the Supreme Court releasing its decision. So between 2000 and 2003. 

Sarah: I don't know what that was like for him, but that makes me think about these cases stall and sort of wait and the law is slow, but life keeps happening around it. 

Marcus: Yeah, that's a good way of putting it. So I think this is a good time for us to, to talk about the history of the Supreme Court because you and Mackenzie Joy Brennan did a great episode about the rightward shift of the court, and especially about- 

Sarah: I'm so glad you liked that.

Marcus: Oh, it's so great. And especially about originalism over the last 40 or 50 years. And what I feel like was important about that episode is it kind of denaturalizes the position that we're in right now. The court that we have right now is not the natural or inevitable or only Supreme Court we could have. But one simple way of thinking about it is that basically Republican appointees have represented a majority on the Supreme Court continuously since 1970. And the last Democrat appointed chief justice was in 1946. 

Sarah: That doesn't feel great.

Marcus: It sure doesn't. Right. In 2003, when the court was deciding Lawrence v. Texas. It's about halfway through the rightward shift that you and Mackenzie were talking about. You know, at the time it felt like a very political period for this court. There's like two swing judges, Anthony Kennedy and Sandra Day O'Connor. 

And, you know, there are cases where the parties would basically go and they would write their brief, and it would be only really directed at one of these two swing judges, knowing that the other judges probably had their minds made up, and you couldn't convince them either way. Like, this is the Rehnquist Court, but it's sometimes referred to as the O'Connor Court, because she's the swing vote. She's often the decider. For our purposes, she's a Reagan appointee, and she voted to uphold Georgia's sodomy law in Bowers and Hardwick.

Sarah: There's something exciting about it from a handicapping perspective of like, what are the odds that she's going to go for it? Last sodomy case didn't look good, how much have things changed, how much of the last couple administrations moved the needle on old Sandra Day, you know? It's just so exciting.

Marcus: Yeah, that's right. So much of reporting about the Supreme Court is exactly that kind of like reporting on it as if it's a ping pong match, you know, instead of reporting on the lies. 

Sarah: The slowest ping pong match in the world.

Marcus: I also think like there's this idea that the Supreme Court, when it's operating properly, that it's neutral, that you're going to the ultimate arbitrator of your legal issue, and that what you write in your briefs, what you say at the hearing, that that's going to be dispositive, and if only I can make a strong enough argument, or be convincing enough, the better idea or the more just outcome is the one that's going to win.

Sarah: Which is a great cover story if you're just getting free RVs the whole time. 

Marcus: Well, right. I mean, things feel pretty bleak right now, but I also think the relationship between politics and the court, it's been around since the very beginning. How the political arm responds has varied over time and the results have been different. 

So if you think about, for example, maybe the most important Supreme Court case of the first hundred years was probably the Dred Scott decision. The Dred Scott decision in 1857 said that the applicant who's a Black man could not sue because neither slaves nor free Black men could be citizens. It constitutionalized literally white supremacy and overturned the Missouri Compromise. 

Now the Dred Scott decision is one of the accelerants that leads to the American Civil War. And then you have, similarly, so after the Civil War, you get the 13th, 14th, and 15th Amendments. The 13th Amendment prohibits slavery. The 14th says that everyone born in the U. S. is a citizen and that everyone's entitled to equal protection and due process.

Sarah: Took us a while to figure that one out, interestingly. 

Marcus: About 1865. And the 15th guarantees Black men the right to vote. But following these amendments, it's left for the courts to interpret them. And the Supreme Court works to uphold inequity, segregation, Jim Crow. And we see a big swing towards states’ rights. The reason I'm bringing these up is because you have this moment where the court is behaving really badly. There isn't a sufficient response. And as a result, the United States endures a long period of segregation and Jim Crow. And the official endorsement of redlining, separate but equal, all of the kind of humiliations of this essentially hundred-year period.

Sarah: What does that say to you about the role that the Supreme Court plays in this country? 

Marcus: The reason I'm trying to sift through a little bit of this history with you is to say, look, people have responded in different ways when the Supreme Court is off the rails. And essentially, the response during Reconstruction was insufficient. And all of these awful ideas were allowed to fester. It's something that requires political will and political action. And also, I mean, ultimately for overturning this set of bad laws that we were just talking about, it required a civil rights movement, people marching in the streets, in times when the Supreme Court says that you don't have rights, you don't have to agree. There were a million acts of resistance. 

Sarah: Well, I love what you said. And I really want to emphasize it. Yeah, that is, if the Supreme Court says you don't have rights, you don't have to agree, because that does feel, you know, to me quite radical in terms of just the way that my brain has accepted the idea of law and government. Yes, the dream and the goal is that the law can be better than us because it can represent sort of the sum of our wisdom and of our impartiality and that we can honor it as something that sort of holds the collective greatness of humanity and it can be that, but it doesn't have to be that and sometimes it's just racist or sometimes it's just dumb or politically motivated or homophobic. 

Because especially with Supreme Court decisions, we want to be able to sort of teach them in our history classes and to relate to them as political subjects and certainly we've been told to do this by politicians, I think especially on the right, that the law creates reality, and the law dictates reality and what must be. And really, I think the law has to instead reflect reality, right? Because gay people didn't become people in the 20 teens, it's just that the Supreme Court was forced to acknowledge that that was going on, to an extent. 

Marcus: Yeah, that's right. I mean, I think the truth is just so much smaller and meaner. The court ends up getting dragged kicking and screaming into these decisions. For example, Brown v. The Board of Education led to at least a nominal order to desegregate schools in America. It was popular. It was not popular in every individual state in the U.S. south, but overall, at a national level, it was already popular. The majority of people said that that's what they wanted.

Sarah: Yeah. 

Marcus: And the same when we get to Lawrence and Texas, a poll that's taken after oral argument says that 75 percent of people say they believe that private consensual sex should not be criminalized. And so we think of these as these like watershed moments where it's the Supreme Court that's doing the deciding, but it's not.

Sarah: Right. But we just let them think that. 

Marcus: I mean, in the case of Brown v. Board of Education, it was the act of generations of resistance by activists and by ordinary people living their lives that led to that change. And, you know, 2003, when we're talking about Lawrence in Texas, it's a moment where the political landscape has changed in part because so many people have come out as gay. People know people in their workplace and their families that are gay. 

And we've just been through the kind of horrific tragedy of the height of the AIDS pandemic. And it was the activists who were fighting against government apathy toward AIDS, for example, that sort of set in motion what ends up getting codified in the decision we're going to talk about. I don't know if you've seen it, Biden has a plan for Supreme Court reform, which is a new Supreme Court judge appointed every two years and a 18 year term limits.

Sarah: I really think that 18 years…is anyone making better decisions in their second 18 years on the Supreme Court than they were during their first 18 years? 

Marcus: It's certainly not the only available type of reform plan that could be taken up, but it's something that would have a significant change.

Sarah: But yeah, the idea of any reform plan to me is very exciting because, I'm sure this is not surprising to people because I've gone on about it enough, but the like mystical aura we cultivate around judges in this country without even making them wear wigs, I think this is ridiculous. And we treat the Supreme Court, or at least historically, I think, they're appearing a little bit less magical than they have in the past. But we have historically treated them as if they live on Mount Olympus. And the idea of having enforced term limits for people, one of the many things that does, I think, is just communicate the idea that they are human. 

Marcus: If they were four-year terms, if they were elected, or if they had to be reappointed frequently, the fear is that they would be unduly influenced by politics. And it's like, oh, well, honey, look what's happening. You know? I don't want to yada, yada, yada over the Warren court because it is a progressive court, and it is one where a lot of these rights that we think of as being important are kind of judicially granted rights, like Miranda rights or prohibiting the use of illegally obtained evidence from being entered. That's where they come in. 

This is where you get the prohibition of mandatory prayer in schools, which is now back. They also mandate that electoral districts have to have roughly the same number of people in them. Yeah, that's the Warren court. And it's interesting because this is also the moment when liberals fall in love with the idea of a constitutional challenge being the way to get a right granted to them. 

Sarah: Which, again, is fascinating to think of as a relatively recent phenomenon. 

Marcus: Yeah, well, I mean, part of it is just a turn away from economic power, unionization, those kinds of collectivist projects and toward individual rights and civil liberties is the way forward.

Sarah: My understanding is that there was a period of civil rights gains and sort of more liberal thinking in the Supreme Court in the Warren court years and that what we've seen since then has been to some extent a backlash against those advances that has become stronger than any actual advances at the time.

Marcus: Yeah. This period of backsliding, when John and Tyrone went up to the Supreme Court in 2003, it's the tail end of the Rehnquist Court, which was 1986 to 2005, that's the Rehnquist Court. So maybe this is a good example. So we were talking about Miranda rights and the prohibition on the use of illegally obtained evidence as being Warren court inventions. 

And then you get into the Rehnquist court and they're green lighting, for example, random searches of bags on a bus. I don't know if you remember that from growing up. There's a case that goes up called Hamlin in 1991 which was for life without parole for cocaine possession. And the court says it's not cruel and unusual punishment, right? The court literally says severe mandatory penalties may be cruel, but they are not unusual in the constitutional sense. 

Sarah: Well, why did we put unusual in there if we're going to use it like that? 

Marcus: Yeah, right. So like this, this like rollback on, I think, I think it's maybe most obvious on the rights of accused persons and the rights of people who are incarcerated and even the rights of people who are going to be executed. So, for example, it's the Rehnquist court that refuses to recognize the gas chamber as cruel and unusual punishment. 

Sarah: I mean, my understanding is that the Supreme Court is also the last chance for any kind of death penalty appeal. And that part of the situation, the last I checked was the lack of lethal injection chemicals available in this country because of the number of places that have ceased to manufacture them. 

So there is currently an ongoing, very slow, slow debate over how many different forms of execution that we haven't done in a really long time can we claim are humane now? Is hanging humane given the situation with lack of reliable lethal injection materials? And I think any illusions we have about being some great arbiter of human rights is again, sort of looks a little bit less convincing in light of that issue.

Marcus: I mean, do you think that because the U. S. Supreme Court does have these kind of death penalty appeals more frequently, that they're more likely to develop a callous about it? 

Sarah: I mean, you know, along with everything else in the mix. Yeah, it's hard to imagine maintaining humility in the face of that, really. And clearly some don't, look at Scalia. 

Marcus: Right. Do you want to return to John and Tyrone? 

Sarah: Let's please do, where are they and when are we and what's happening now? 

Marcus: We're at the, we're at the Supreme Court. 

Sarah: We made it. 

Marcus: Oral argument is heard on the 26th of March 2003. 

Sarah: I've heard that when you do an oral argument before the Supreme Court, they have a big red curtain, and then it parts and then they're there, which I find kind of cool, honestly, 

Marcus: It would be inadvertently humanizing if you saw them walk in and out.

Sarah: Right. That's right. And it does feel like in the grand trick of it all, the humanity of a judge is their greatest asset. But of course, that's the part that in our great wisdom, we saw fit to deny. 

Marcus: Yeah, right. John is there, but Tyrone isn't. He doesn't fly up for the occasion. But here's what John says. I'm going to send you just a quote of what his thoughts are.

Sarah: So John says, “Have you ever had that magical moment and just said, we're here. We're going to hear what they have to say. This is the court of the land, and they're listening to a case of some two little guys from Texas that supposedly broke a law that was stupid to be on the books in the first place. You get to hear the justices. You get to see the true court system of the United States at work.” 

Marcus: What do you think of that? 

Sarah: Yeah, I really love that because I think that secretly in my heart of hearts, I believe Americans should be able to bring manifest injustices to some kind of authority that like, if it at least chooses justice some of the time allows us to have faith in it that that it will for us, and I guess I believe, ultimately, in what the Supreme Court can be, not what it is, but what it can be and what it sometimes allows itself to be, which is what he's saying here, I think. 

Marcus: Right, and having that kind of hope against hope, he's been convicted almost every time, right? All the other judges have told him, no, this law is constitutional. What he's expressing in part is that he was sort of overwhelmed by the pomp and circumstance or at least the circumstance, if not the pomp. 

Sarah: At least the cruel, if not the unusual. 

Marcus: What John doesn't mention is that as they're going into the courthouse. On the steps protesting is Fred Phelps and the Westboro Baptist Church. 

Sarah: Oh, hello, Fred. I met you in Chelsey Weber-Smith's show. And in real life before that. 

Marcus: And he's out there with his anti-gay placards and also applauding 9/11 as he was doing at that time. 

Sarah: What? Oh, right. Yeah, I forgot about that one. Because, what, 9/11 killed some gays or something? 

Marcus: I think he saw it as just retribution for how rotten the United States is, I think.

Sarah: It puts him in agreement with Osama bin Laden, which is a weird position to be in. But, you know, the Westboro Baptist Church was never about consistency. 

Marcus: Honestly, Fred Phelps is maybe where I approach the limits of empathy.

I don't know if I can really empathize or put my mind there and try to figure out what it is he's thinking. But he's wormed his way into our story, nonetheless. So inside the halls of the Supreme Court, oral argument is about to begin. And for John and Tyrone, it's a lawyer from Jenner and Block, a man named Paul Smith, who's a graduate of Yale Law School, former Supreme Court clerk. He's at this time in his late 40s. He was previously married to a woman, but he's now out as gay. 

Sarah: Congrats, Paul. 

Marcus: The Lesbian Brain Trust believed it was important to put a gay or lesbian person, a gay or lesbian lawyer specifically, in front of the Supreme Court when they were making this argument. Representing Texas, it ends up being Chuck Rosenthal, who's this the D.A. for the county. Up until now, it had been handled by one of his subordinates, this guy named Bill Delmore, who knew the issue inside and out, and who drafted the written materials. 

But Rosenthal, who's never been to the Supreme Court before, never argued a case there, decides he's going to be the one to do it. And it feels, to the people who are there, like it might be a bit of a mismatch in terms of true talent levels. 

Sarah: One of the wonderful things about the right is that it has a lot of Achilles heels, and one of them is, I think, the real tendency toward hubris on the part of a lot of its members. 

Marcus: Yeah, I mean, also lawyers have that problem in general.

Sarah: Well, yeah. 

Marcus: It's weird that this is like a cast of lawyers, but they are largely reunited today. Mitch Katine, the original Houston lawyer who represented them is there and Ruth Harlow and Pat Logue, the lesbians from Lambda are there. And like I said, John is there, but not Tyrone. And as Paul Smith is waiting to begin, this is the legend, this is the story. Someone from the audience whispers in his ear that Justice Sandra Day O'Connor has recently sent a baby present to one of her former clerks who is a queer woman in a same sex relationship. 

Sarah: Hmm. Hmm. I cannot express how much I love that. That is sort of the penny drops with the baby gift. 

Marcus: Right. But I mean, it also just shows how precarious this all is. 

Sarah: Yeah, Jesus Christ, that too. It's like, well, this one lady seems to have done something nice for a lesbian. So I think we're in the clear as Americans. 

Marcus: And we're just fishing for any little morsel, any little bit of good news that could portend a favorable result. And of course, she's the one who voted with the majority to uphold the Georgia sodomy law in Bowers and Hardwick. 

Sarah: However, all these years later, look at her buying a baby gift. It's all so silly. Shouldn't there be, maybe there is, a nice big musical about the Supreme Court, just all the Supreme Court history. We've only got two and a half centuries to get through. That's nothing. 

Marcus: You know, when I was in Puerto Vallarta, I saw a musical review send up of the U.S. Supreme Court done entirely by drag queens. And it was pretty good. I think it should tour. 

Sarah: I mean, that's the only thing I was missing from my idea. Yeah. I think that sounds amazing. 

Marcus: Yeah. Shout out. Okay. Oral argument. Oral argument goes well. Paul Smith gets lots of questions. 

Sarah: How much time do you have when you make an oral Supreme Court argument? 

Marcus: Paul Smith had 30 minutes. The whole thing got argued in one hour. 

Sarah: As two people who've been talking about this case for four hours now, I think we can agree that that's obscene.

Marcus: You know, I also think there's this, just this myth that you win or lose a case in an oral argument like this when really, I don't know, I think of it now mostly as oral argument is often an advertisement for your written materials. 

Sarah: Yeah, that makes sense. It's like Shark Tank. 

Marcus: It's clear that the Supreme Court judges are just asking them questions that they sort of already know the answer to. They're like, repeat this back to me and maybe in a way that is novel to me, and I might use some of it. 

Sarah: Mm. Mm hmm. 

Marcus: So like the conservative judges are asking Rosenthal things like, if we decide in Lawrence's favor, would it not mean that the state would be forbidden from preferring straight kindergarten teachers over gay ones? Which is like, obviously containing homophobic data points in it. 

Sarah: Okay. So I feel like I understand that as a sort of layer of performance, but what to you is, is the purpose of that sort of call and response part? 

Marcus: I think my role in oral argument when I'm at my best is providing some assistance to clarify whatever sort of fuzzy around the edges. The meat in the center of it, the judge very often has an idea of what they're going to decide on those. And if there's any room to tilt someone over from one to the other, it's really usually at the edges. 

But in a case like this, where you're at the Supreme Court, you're arguing about whether the sodomy provision is constitutional or not, these judges have already mostly and maybe entirely made up their mind. And so what you're doing is maybe equipping them with various tools or weapons that they can use to bludgeon each other when they go back into the back of the court to discuss it. 

Sarah: So you're kind of equipping them with rhetorical tools.

Marcus: It's like laying out a knife roll and being like, which of these would you like to use? Nowadays. decisions of the Supreme Court are released in a PDF, right? It's just like, there's no real ceremony to it. 

Sarah: Everything's a PDF now. 

Marcus: But in 2003, they were still using the old tradition, which is that the court would schedule a day for reading decisions and not say what decisions were being read. And then if you were there, you just hear whatever decisions they were releasing that day. But by the end of the term, in the last few days, you would know whatever's left, that's the things that they're going to be reading. And at the end of the term in June 2003, there were two sets of decisions left. There's a set of decisions about race-based college admissions, and there's Lawrence v. Texas. 

So they have these two sessions, Monday and Thursday, last week of June, and they don't say which is which. And so then on Monday, they released the Bollinger decisions about race conscious college admissions, which by the way, they have now, I mean, Bollinger's not a great decision, but the current court in 2023 completely ended race conscious admissions. 

So anyway, that's a You're Wrong About for another day, but what it means is that by Monday afternoon, everyone knows Thursday is going to be Lawrence v. Texas. And these lawyers, who might not otherwise have flown to D.C. to listen to this session, not knowing what would be on the docket, they go, including Ruth Harlow from Lambda and Paul Smith, the guy who argued it. John and Tyrone aren't there. They don't have the money to drop everything and go. And no one's paying for them to go. Justice Kennedy begins to read the majority decision saying Bowers v. Hardwick was wrongly decided, it's overturned, the Texas law is unconstitutional, and it's waterworks. The gay and lesbian lawyers are just openly weeping in the courtroom. 

So Mitch Katine, the men's first lawyer, is in Houston and he gets a call from his mother to say, I just saw on CNN that you guys won. And so it's Mitch that calls Tyrone. And Tyrone's just sort of getting up out of bed. Tyrone wakes his brother up and gets him to turn on the TV so that they can follow along on CNN. 

John is, this is 2003. He's still living in the same apartment at the Colorado Club. He had set his alarm for 9am, but at that time there had been no decision. But he's just watching along, bopping along on CNN when the decision is announced. And that's how John finds out. Mitch calls him too. And everyone is just floored and so happy. 

Sarah: I mean, if something has been in the works for that long, I feel like it would, in a way, be hard to have specific hopes, you know, because it's been kicked around and mulligan’ed enough times that, until a decision actually came, I wonder how possible it would be to believe that it would ever be resolved past a certain point.

Marcus: I think if I was the lawyer advising John and Tyrone, I would be telling them that more likely than not they will lose. 

Sarah: Yeah. And why is that? 

Marcus: Well, because that court is seven Republican appointees. The two swing votes are both Republican appointees. You're pinning your hopes on somebody nominated by Reagan, who has ruled against you on this very issue in the past. What you're hoping is that the tenor, the mood of the country has shifted enough. How can you be certain of that? 

Sarah: Overestimating the willingness of the American people to change is a tough proposition. 

Marcus: Yeah. The decision itself, there's two opinions for the majority. The opinion of the court is delivered by Kennedy, and he decides it on the kind of due process privacy stuff we've been noodling around. So the kind of sphere of intimate conduct that's so private that the state ought not to regulate it. 

And O'Connor writes a concurrence. So she's with the majority here and she says the law should not be struck down under the due process and privacy clause, under that kind of line of thinking. So she's saving face for having voted for Bowers and Hardwick. But she says it should be struck down as impermissible sex discrimination.

Sarah: Hmm. Okay. Well, I don't want to go back on my previous opinion, but you've given me a side exit in a way. 

Marcus: In the materials that go to the Supreme Court in Lawrence v. Texas, the impermissible discrimination argument is very sidelined. It's very minimal. It's like the thinnest whisper. of this argument being made. And so I don't, I don't know if it's only there was left in there specifically to give O'Connor that kind of emergency escape hatch. I think they thought that it was a looser of an argument and that's why they de-emphasized it. 

Sarah: It feels worth pointing out too that the people who are supposed to be these sort of authoritative arbiters of what is and is not constitutional, we're kind of admitting that we know that they're not objective by the fact that, to some extent, your argument as presented to them has to be tailored to your understanding of these nine very particular human beings and what they have done in the past, and that you have to stalk them. 

Marcus: Yeah, that's right. There's a dissent, I mean, you can imagine it's written by Scalia.

Sarah: Just as a matter of trivia, has the Supreme Court ever had a unanimous decision on anything? And when they do that, do they not have dissents, if that's ever happened? 

Marcus: Yeah, yeah, there's lots of unanimous decisions. 

Sarah: Really? I would not have guessed that. I would not have been surprised if you'd been like, no, never.

Marcus: But even the current court releases unanimous decisions. 

Sarah: What kind of cases do they release unanimous decisions on? 

Marcus: Oh, now you're grilling me. 

Sarah: I know. I'm sorry. I'm sorry. I'm sorry. 

Marcus: Permission to file a supplementary factum. 

Sarah: Have it on my desk by 5:30! 

Marcus: The things that become known or become the touchstones of the legal system tend to be the places where things are most fractious, where there's a site of conflict, where it's a nine zero decision, it's going to be inherently less interesting, you know? 

Sarah: Yeah. Well, that can be just one number in the musical. We don't have to go on. 

Marcus: Yeah, totally. Scalia says that the majority's decision in Lawrence means that all kinds of other deviant sexual practices might now have constitutional protection.

So bigamy, sex work, adult incest, bestiality, adultery, and clutch your pearls, same sex marriage. Yeah, no, I mean, Scalia's list is interesting because I agree with him that if there is this right to a kind of zone of personal decision making where the state ought not intervene, then it might include bodily autonomy in the realm of sex work.

Sarah: Which is an interesting avenue to go down. Let's try it. 

Marcus: The court is going to say that this does actually protect same sex marriage in 2015 in Obergefell. 

Sarah: Mm. Mm. 

Marcus: He's like, can you imagine? But I'm like, okay, I can imagine. Doesn't make me mad. 

Sarah: And it's also interesting to sort of, in your capacity as an originalist, to say, well, if we find this to be true, then this would open the door to all these other things. And then, wouldn't it be very originalist of you to be like, well, if it does then we should deal with that also. 

Marcus: Yeah, right? Yeah. He's using the consequences as the boogeyman where, I don't know, I see them as an opportunity. 

Sarah: It feels like his argument is like, well, we simply can't because then we would have to do all this other stuff. And it's like, well, then maybe you have to do all this other stuff. It's your job. You should do it. 

Marcus: Wouldn't that be nice, right? Yeah, he has some thoughts about this question of precedent and the role of precedent. He looks at Lawrence in this decision and he says, well, what the majority is doing is overturning a case that's only 17 years old. And so that means that we should have license to overturn other cases that are 17 or more years old, like Roe v. Wade. And he says the quiet part out loud, in the dissent in this case. 

Sarah: And I guess that that did happen, so.

Marcus: Scalia concludes, “It is clear from this, that the court has taken sides in the culture war departing from its role of assuring as neutral observer, that the democratic rules of engagement are observed.” 

Sarah: But are you betraying your lack of neutrality by implying something along the lines of, wouldn't it be terrible if we had to talk about privacy and autonomy with regards to sex work because then you're showing that you're not neutral on the issue of sex work. So I get that this is a technicality I'm pointing out and that there are many others, but accusing someone of a lack of neutrality seems like a terrible approach because who's neutral? 

Scalia's, I think, demonstrably not neutral and I don't know, I don't know how you can accuse the rest of the Supreme Court of the same thing that you're doing to a greater extent than the other justices, I would say.

Marcus: Yeah. So this is June of 2003. It's Pride Month. There are impromptu rallies held all over the country. In LA, in Miami, Boston, Philly, Atlanta, in Seattle, people met at the courthouse and the gay men's chorus sang, You Can't Stop the Beat from Hairspray. In New York, it's Pride Weekend and there's a party at Sheridan Square. And by then, by the afternoon, Paul Smith is there. He's back in New York and he says he's celebrated as a hero, and he can't buy himself a drink all night. People are cheers-ing and celebrating and putting drinks in his hand. 

In Houston, there's an afternoon press conference in which Mitch Katine, the lawyer, and John speak, but not Tyrone. And then at 5 p. m., there's a small rally. When John and Tyrone are introduced, there's cheers. Maybe a hundred or two hundred people are there. Lane Lewis is there, the bartender who was acting to help connect John and Tyrone to legal counsel right at the beginning. And others, Annise Parker, who was a lesbian city counselor at the time, she goes on to become the first lesbian mayor of a large city in the U.S. in Houston. And Ray Hill is there who's one of the gay rights activists who had been shepherding the case from the beginning who we heard from sort of at the top of the episode. 

And two days later on the Sunday John and Tyrone ride together in an open convertible in the Houston Pride Parade. And thousands of people cheered and shouted at them and thanked them. And both of them remember it fondly. Tyrone says, “I felt like a celebrity. I’m not a hero, but we've done something good for a lot of people, and I feel kind of proud of that.” 

Sarah: I just really love that. And I think that there should be more parades for more plaintiffs. Because I think that trials seem built on ceremony, legal proceedings seem built on ceremony, but then when they're over, they just kind of end. Getting to have the ticker tape pride parade just feels like the least that they deserved. I don't know. I really love it. Also I'm curious about, yeah, what you remember of when this happened? 

Marcus: Yeah, I was in, I was in university when, when this decision came down. And I remember it being an important day but also feeling like the court was already in a position where it was playing catch up, you know? 

Sarah: Mm hmm. 

Marcus: That the idea of criminal prohibitions on consensual sex between adults was something, it just felt out of step with the moment to be continuing to prosecute. But I'll tell you, when I was doing this research and I was reading about this moment, this day in June of 2003, I just started crying because I don't think I need the state to tell me, that it loves me and that I'm a good boy. Then it does. And I'm like, oh gosh, I did need that. 

Sarah: Yeah. I don't know. What you were saying before, the Supreme Court doesn't have to recognize your human rights for you to have them. But it's really nice when it does. 

Marcus: You live your whole life with your back up a little bit. And with a decision like this, you can let your shoulders down for a second. And you didn't really realize that you were hunched, that you were tense, until you're invited to unclench in a moment, you know?

Sarah: Mm hmm. 

Marcus: Yeah, that's a good feeling. 

Sarah: In a story that began with all these awful coincidences, I love that it ends with actually some great timing, for once. 

Marcus: Yeah, what a favor of the scheduling that this decision comes down right before Pride weekend. 

Sarah: Also, don't Supreme Court justices have summers off as well?

Marcus: Yeah, that's right. So these were the last decisions before the summer session. 

Sarah: Come on! 

Marcus: They release this at the end of June, it's the last thing on the docket, and they don't reconvene until the fall. 

Sarah: I love it. 

Marcus: Most of Tyrone's words, we only have them because Dale Carpenter interviewed him in June of 2005. That's a couple of years after the decision was released and so we just have a tiny little snapshot of him then as well. Dale picks him up in front of a house, which has a barbecue pit and some chairs and a bucket and some other items on the front lawn. The apartment's still not in Tyrone's name. As Dale's driving him back to where he's staying, Tyrone borrows some money to buy a bottle of malt liquor at a gas station and hops out of the car. And that's the last we see of Tyrone Garner. Tyrone died in 2006, very young, of a chest infection. 

Sarah: Oh my God. 

Marcus: Because of the cost. There was no burial, no obituary in the local paper at the time. No memorial service for Tyrone in the gay community. He was 39 years old. I know, it's a tough thing to process. Yeah. He died at 39. 

Sarah: Well, and you know, and I don't know the nature of the infection, but it does feel like if you're living hand to mouth for your whole life, then I suspect that you can also die in a very preventable way, because it is very infuriating that you can be in part the catalyst for America changing for the better for everyone and yet the country that you belong to doesn't care enough about you and your well-being to keep you alive or to note your death in any way.

Marcus: Yeah, the failures of the American medical system are visited on millions of people. And it's unfair to all of them. And you have someone like Tyrone who holds such an important place in the history of a movement. It's sad. It just has an extra valence, an extra level of sadness. 

Sarah: Yeah. 

Marcus: As for John Lawrence, John died five years after that at his apartment, the Colorado club apartment in 2011 at the age of 68 of heart disease. In the New York Times obituary about John Lawrence, it says his death received no immediate attention whatsoever, and only came to wider attention because Mitch Katin, the lawyer, tried to call to invite him to an event, an upcoming event commemorating Lawrence v. Texas. And when he called, he found out from his partner, Jose Garcia, that he had died. 

Sarah: I realize that death is a part of life, but in America, I think one of the parts of our culture that has become a really big part of how we have to learn how to take care of each other in the face of how we're brought up is this overpowering idea that people are disposable.

Marcus: Yeah, John and Tyrone are not disposable and the fact that they went from being for at least a moment in the Houston gay pride parade in 2003, they felt like celebrities, they were celebrities, to go from that to just back to living your normal life, I think that's okay, but it's kind of a shame that we tend to only remember those people who made headlines when they're rich and famous in some way, or beautiful, and these two people maybe didn't have the kind of star power that some of the other cast members of You're Wrong About have. But I don't know, I think they nonetheless deserve a place. All of your work all these years, reclaiming the specificity of people's lives. Tyrone and John deserve that too. 

Sarah: Yeah, they do. And also just for being, I think so many of the people that we talk about on the show are people who got sort of picked up into notoriety because they were just kind of living their lives in a way that other people found unacceptable and that that is a kind of fame that often means that you won't be treated well by the public that is paying attention to you for the time that it is. And that, I don't know, I think we also have an idea in the U.S. that being known and seen by people translates to some kind of safety. Separate from the money you're able to get out of it, potentially, I mean, more now than in the past, because it's, you know, everybody can have a TikTok shop now, it's one of the things Andy Warhol failed to predict, although I think he was right on the verge of it. 

But fame used to be a lot harder to monetize and it is today, but even with that aside, money isn't. Safety pays for the avoidance of a lot of problems and creates some new ones. But the feeling of being secure within a community is something that there isn't a substitute for. And I think maybe, I don't know that there's something about the technology we have today that's more than we can process. And we know that to be safe, we need to be known and seen and held by the people around us. And so we can assume that someone in the public eye, that Tonya Harding is known and seen by so many people, the grosses are so high that surely she's fine and it's like, yeah, but they all hate her though. 

Marcus: Right. It's like also Lorena Bobbitt would be another, maybe. 

Sarah: Yeah, or the feeling that because a lot of people knew who you were at one time, you cannot be forgotten later. But that's not true. People are forgotten. And I think that part of that is just that we live in a culture that keeps in view people who are able to help generate a profit either by being beautiful or by being an interesting train wreck or whatever the third way to do that is. So that the people who fall away and who we don't remember, it's not because they deserve it or because they became less worthy of our attention. It's just because there wasn't a good way to monetize them. 

Marcus:  Yeah. I think it's interesting in this case where there was a deliberate strategy among the lawyers to sort of keep John and Tyrone out of the public view. 

Sarah: Yeah. 

Marcus: That maybe that was ultimately protective. It may have had the effect of reducing some of the worst of what you just described.

Sarah: Right. 

Marcus: Even if that did work ultimately to protect them in some ways, it also means they didn't get their flowers really. 

Sarah: If people at least think they know you, then maybe there can be a little bit of a safety net in this world we live in where they seem to be so few. 

Marcus: It doesn't seem like that was really available to John and Tyrone, but the work that Dale Carpenter did to reclaim these men's lives, especially, is more of a slow burn. But I think it's okay that it was a slow burn. I'm glad that Dale Carpenter did that work. And that here we are talking about John and Tyrone today. 

Sarah: Yes. And I'm so thankful for Dale Carpenter's work as well. Because I do think that in these stories, someone has to either ask the people involved what it's like for them when it's going on, or else maybe that moment passes, and nobody ever asks and then we never know and they just become these figures in a parable and they don't feel like real people anymore. 

Marcus: And all we have is that 70 words or whatever it is that Joe Quinn wrote about them, that the police officer wrote. Gross. 

Sarah: Do more interviews. Don't let history be written by cops. 

Marcus: Right. That's a good lesson. And then I also think that we thought of Lawrence et al v. Texas as being just settled and something that we could sort of put in the drawer and be like, we did that. It's done now. There was a whole kind of renewal of the discourse at the time that Dobbs got decided in 2022. And it was like, oh, suddenly this is really topical again. 

Sarah: Well, I mean, so is this vulnerable to being overturned? Are we going to re criminalize gay sex all of a sudden? I realize this is a very big question now, but yeah, I guess looking at sort of the way things are going Supreme Court wise, legally, what are you thinking about? What are your concerns? What are your hopes? Et cetera. 

Marcus: I mean, narrowing in on Lawrence v. Texas. So, it gets mentioned by both the majority and the concurrence and the dissent in Dobbs, the case that overturned Roe v. Wade. So the majority for Alito, Alito in that case reframes the right from, instead of thinking about a right to a zone of personal decision making, he says, is there a right to an abortion found in the constitution? And he finds that there's no such constitutional right. But he says in his majority decision, abortion rights can be distinguished from the right to contraception, the right to marry, and from Lawrence, because those cases don't involve a potential life. 

Sarah: What if you're having a threesome with sodomy in it? No, let's not tell him. It's fine. 

Marcus: You know, Clarence Thomas's decision in Dobbs is like a burn it all down kind of concurrence. He says, yeah, those contraceptive marriage and sodomy cases should all be up for reconsideration now that we've done what we did, just did to abortion rights. 

Sarah: Good God. 

Marcus: And the three liberal judges basically agree with Thomas, not that it should happen, but that Alito's line of reasoning really throws those cases all into jeopardy. The practical effect of Dobbs on day one was immediate and damning. As a result, there's now much larger abortion deserts, especially in the South in the middle of America, where access is basically not practically available. I don't want to raise Dobbs and be like, but what effect does it have on Lawrence v. Texas? Because the fact is that's less important than the immediate and very real consequences that that has for abortion access for millions of women in America. 

Sarah: But also, what effect does this have on Lawrence v. Texas? 

Marcus: There was this string of op eds that were asking that question in 2022 and it made me a bit grumpy because like, I just don't want us to take our eyes off the prize. We're heading into an election in which abortion is on the ballot in important states, including in Florida. And it's important that people get out and vote, repudiate this decision from the Supreme Court and find ways to get around it. And it's not just obviously voting, it's organizing in the larger sense.

Sarah: Yeah. 

Marcus: There is a lot of work to be done. It's true that there's no case coming up down the pike to overturn Lawrence and Texas in the Supreme Court's next calendar, but there is an important case about trans youth's rights to affirming care coming up in the next session. 

And even in August of 2024, there was a decision of the Supreme Court about another trans issue. It was about an injunction. It's a bit complicated, but the U.S. Supreme Court isn't stopping with abortion rights. It's coming for the rest of it too. And so we need to be ready and working too. You're doing work in this area and you've been thinking a lot about how change happens and how people can get involved and that these decisions are, a lot of them are, are kind of fair weather decisions that they're going to rely on precedent when it suits them and that they're going to overturn precedent when it suits them and that they'll rely on other kinds of procedural aspects of the law when it suits them and disregard them when it doesn't.

Sarah: And disregard them when it would get in the way of that free RV or whatever. Not to pick on Clarence Thomas, but gee, I guess I am, and that he also deserves it. 

Marcus: Yeah, he's got big shoulders. Yeah, but this history of the Supreme Court is full of instances where people have said, no. When the Supreme Court does something stupid, we stand up and we march, or we threaten to stack the Supreme Court with five more Supreme Court judges. And, you know, I think there's an idea that what happens at the Supreme Court is final, and it's not final. 

Sarah: Probably because they told us that. 

Marcus: Right? This case is an example of something where the Supreme Court said in 1986, it is decided, there is no constitutional right to sodomy. And a bunch of enterprising lawyers built up the arguments to say, no, I think you got that wrong. I would never say, just rely on the lawyers. The lawyers are kind of the last resort here, but marching in the street, writing to your MP, voting in these important referendums, those are all more direct ways to make your voice heard and to refuse to be cowed or made to feel small by this court and its decisions.

Sarah: Like, sure, they're the Supreme Court, and I'm sure that that's really nice for them, and everyone's very proud, but we're the people. We're who this country is about, you know? There's a lot of power in that role, arguably the most. I don't think optimism is as dangerous as we like to think it is. I think that idealism can be dangerous. Because I think that what a lot of people, especially boomers, have some memory of is sort of getting too idealistic into an idea and then becoming disappointed by the way people are, and then feeling like they were stupid for having hopes in the first place. Which is not the same thing as optimism, which I think, at least in the way that I'm sort of thinking about it here is about believing in what can be. Not because you are owed it or because it necessarily must happen, but because it could happen and it because if you believe in it and believe in it with people, then it is much easier to organize people toward a goal than toward nothing. Optimism is not the same thing as magical thinking. It's just that in America we're obsessed with magical thinking. And so I think optimism gets overshadowed a bit. 

So ends our journey. Marcus, I just want to thank you for taking me on this long ride and going down all these blind alleys that I pointed us down, and I don't know, I think I really want, especially in these sort of pre-election days, to help people find hope, not through denial of what's going on, but through remembering who we are in this equation and how much power we have collectively and in our capacity to take care of each other. I feel that. And I want to thank you for offering that to me. And getting to know the real people within it means so much. Yeah. Thank you for taking us to them. 

Marcus: Oh, thanks. Yeah. Thanks for having me. 

Sarah: And that was our episode. Thank you so much for being here with us. Thank you for learning with us. Thank you to Marcus McCann, author, again, of Park Cruising - What Happens When We Wander Off the Path. Marcus, thank you for your time and your intelligence and for joining us on this quest to find the real people in these stories and these cases. 

Thank you to Carolyn Kendrick for editing and producing. And for making it possible for you to hear all these conversations. And thank you to you. We'll be back in two weeks. Thank you so much for being here.