Lawrence v. Texas Part 1 with Marcus McCann
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I just think, look, I'm not an expert. Imagining myself into another life, I doubt my ability to maintain an erection after the police have burst into my home and held me at gunpoint, you know? Welcome to You're Wrong About. I'm Sarah Marshall, and today we're talking about Lawrence v. Texas with our friend Marcus McCann.

Marcus is a writer and a lawyer. He last was with us earlier this year to talk about George Michael, which was a wonderful, sprawling two-parter that was about one man's life and also pop music and also park cruising and also queer culture and coming of age and so much more than that. That's kind of Marcus's thing because he's

Today we bring you the first of a two-parter where we are talking about Lawrence v. Texas, a 2003 Supreme Court decision that was of tremendous importance. And I want to remind you, I guess, that 2003 was a time when the Supreme Court was in power.

with regards to America's sodomy laws, specifically, not to put too fine a point on it, whether you're allowed to have gay sex in your own home. So like some of our recent Supreme Court-focused or adjacent episodes on the concept of originalism with Mackenzie Joy Brennan and also on the Jane Collective with Moira Donegan, this is an episode about how talking about the law and its consequences

is for all of us and is something that we must do or else we will see our lives and our rights decided by a bunch of people who are willing to sell their soul for an RV. And if you must sell your soul, sell it for something more interesting.

So this is an episode about an important period in American history, an important decision in queer history, legal history in America. But it's also the kind of episode of You're Wrong About that you've been hearing all along with a very familiar cast of characters. A police officer who sees things that no one else can apparently do.

and two normal people just trying to have an ordinary day who stumble into an extraordinary legal battle and about what that battle does to them. And that's about it. Welcome to part one. Thank you so much for joining us. Thank you so much for listening. Thank you for being here. If you want to hear bonus episodes, we have some on Patreon and Apple Plus subscriptions, and we have one coming out later on this month about the mystery of Somerton Man.

something that has fascinated me for quite a while. And if you're fascinated, I hope you check it out. And if you don't know what I'm talking about, check it out as well, or do your own research, fall down a little rabbit hole. It's fun. Thank you so much for joining us again. Here's your episode.

Welcome to You're Wrong About, the podcast where every month is Pride Month and also where we talk about the Supreme Court lately, it would appear. Why not? You know, they're wacky. And with me today is Marcus McCann, who last visited us to tell us the saga of George Michael and is back. And I'm so happy you're back. Thank you for returning. Oh, thank you for inviting me. What a treat.

What kind of stuff do you do and who are you and what are you enjoying this summer? I am a lawyer and a writer and I'm the author of a book about park cruising, which was the kind of entryway into talking about George Michael's life. The topic we're going to be discussing today has some things in common and some things that are different. And I feel like it's going to have a different shape a little bit, but I'm excited to talk about it with you.

I feel like we have entered the period of the show for me personally, where, you know, we are drawing close to an American election and it feels like a lot is on the line. We are dealing at the moment with the feeling of hope.

Which is weird and scary for people. We just did an episode, I don't know if you've heard it, with Mackenzie Brennan on basically like a brief history of the Supreme Court and why they are the way that they are and sort of the concept of originalism and basically how that is.

can serve as this is my, you know, summary, how originalism as a school of thought can sort of serve as a shorthand way of saying, well, you know, I as someone who is appointed to a lifelong term as one of the nine judges who all of the legal questions of the country eventually get kicked up to, or not all of them, but you know, the final authority, the final boss in these matters, I am able to say that I'm taking an originalist view of the constitution and

based to some extent often on this idea that, like, I simply know. I am the person. I am the one who knocks. I have been appointed to this position, and therefore, how do we know that Thomas Jefferson would like this idea? Well, we just do. I just do. I mean, is that accurate to your understanding? I think that's a great summary. And, um,

There'll be a cameo from originalism in the episode. But yeah, because it's election time, I think it's worth saying, look, the Supreme Court isn't going to save you. But it is a good idea to rally around local candidates and, you know, putting progressives in the House and Senate.

There are referendums going on right now, especially on abortion in Florida and elsewhere. And, you know, the Democrats have announced a plan for Supreme Court reform. I don't know if it's practical and they're actually trying to get it

implemented or if they're pulling a FDR, if the Democrats are really trying to startle the Supreme Court into getting in line. There's like when there's a long history of a very Supreme Court reactionary court striking down progressive laws and the country has, has responded in different ways with greater and lesser degrees of success and

But I think they're instructive. People get the idea that these U.S. Supreme Court decisions are the decisive turning points in American history. Yeah, because it is a comforting idea. Wouldn't it be nice if just abortion was something that we just won in the early 70s and could never be taken away? And like, whoops, too bad for that. Right, but it's also like...

And 20 years of really intense work by women's libbers before 1973 is really the reason that we have had Roe v. Wade. And it's the same with other important U.S. Supreme Court cases. Like if you look at something like Brown v. Board of Education...

It's not the thing. It's not the reason that schools were desegregated. It was the tireless efforts of generations of civil rights activists that led to that. And then the Supreme Court's up there at the top just playing this game of sort of codifying it. Knowing that there's not some daddy in the sky that's going to save us from this.

some of the more scary government interventions that have been planned and will be planned again, is on the one hand, you know, I think that is scary. But on the other hand, it's freeing because it means that it's actually the work that happens on the ground and on the streets, that that's what's decisive in history. Like the Supreme Court decisions are just...

a piece of the puzzle and maybe not even the most significant piece. The case we're going to talk about today, Lawrence v. Texas, is a good example of how it's a story about some tenacious lawyers, but also about some tenacious non-lawyers who saw the value of challenging something that they thought was unfair. Love a tenacious non-lawyer. Same. Yeah.

So do you have a sense of Lawrence v. Texas? What do you know about the case? Blank slate. Please, please tell us. Well, great. Yeah. In that case, you're in for quite a ride. So Lawrence v. Texas is the 2003 decision of the Supreme Court, which struck down a sodomy law in Texas and by extension struck the criminal prohibitions down.

that remained in 13 other states. Lambda Legal described it this way, the decisions sweeping language about gay people's equal right to liberty marks a new era of legal respect for the LGBT community. Lawrence v. Texas is considered the most significant gay rights breakthrough of our time. Passive voice, but you know, yeah, very impressive. Yeah.

One of the things that's interesting about that formulation is the organization is calling it a case about gay people's equal rights to liberty, which is kind of de-sexing, right? This is a case that's about primarily... Sex. Yes, that's right. And has a kinship with all of the other cases that are about...

bodily autonomy and the right to make fundamental personal decisions. But that sort of sphere of intimate decision-making very often is about sex and sexuality. Mm-hmm. Why don't you tell us the story from the beginning? This story begins in 1998, which is obviously fertile ground for this podcast. Big year for sex, yeah. Absolutely.

Yeah, so let me introduce you to John Lawrence. He's a white working class kind of a guy. He's born in Texas in 1943. So he's in his 50s when we meet him in 1998. But just in terms of his background, he joined the U.S. Navy when he was 17. He was in the Navy for five years. He was even married briefly in the 1960s.

He's also engaged in having relationships with men throughout the 60s and 70s. And he's also had some brushes with the law in the past. In 1967, in his 20s, he's convicted of murder by automobile. And he gets five years probation for that. And he has two other driving while intoxicated charges. One in 1978 and one in 1988. Mm-hmm.

And I don't know, it feels like the sort of social consensus around drunk driving has changed a bit from the 60s and 70s to now. And I'm not saying that to defend John Lawrence's criminal record. I'm just noting that that's that's

That's part of his history. Now, that is interesting, though, because I think of that as like one of the worst things that you can do. Okay. So when we meet John in 1998, he's working as a medical technologist. He's got a long-term partner named Jose Garcia. And in September of 1998, when we're zeroing in, Jose is away visiting family abroad.

John and Jose, by all accounts, they're living a quiet life. They're not activists. They haven't been marching on gay rights or anything like that. John has an apartment that he's at this point lived in for 20 years, since 1978. And it's in a very working class neighborhood in East Houston. And the apartment is called the Colorado Club. Yeah.

It's a lost George Michael song. Right. Yes, exactly. It also sounds like it might be a mixed drink. My Colorado club would have like gold leaf in it for sure. Oh yeah. And maybe like an egg white. Yeah. But it's great for hangovers. And then you shit gold.

So you and I are opening a speakeasy later. Yeah, I'm fine with that. Yeah, so he's living in the Colorado Club. He's on the second floor. It's one of those apartment buildings where there's no interior corridor. He has a staircase that goes directly from the exterior up to his second floor apartment. Well, and like, yeah, and that is, you know, apartment life is...

you know, because it's, you know, you've got neighbors. That seems to be the main thing about it. And I feel like this might be relevant to our story. Well, definitely the neighbors and,

have different experiences of time. Let's put it that way. That there are sometimes late night parties. The police are called, the police are familiar with the Colorado Club. Let me put it that way. Okay. Yeah. So that's John. I guess the first you're wrong about his story is that Lawrence v. Texas is not the name of the case.

The name of the case is Lawrence et al v. Texas. And that's because there's two accused persons. It's not just John. There's a second guy, and his name is Tyrone Garner. Alphabetically first, and yet et al. Yeah, totally, right? Like, I don't know how that happened. It's just like the two cases are going to get consolidated at some point while it's winding its way through the courts in Texas. And that becomes the name. Hmm.

You know, I think you learn as a kid that things happen in a more linear way than history bears out, right? So this idea that, you know, Roe v. Wade fought its way to the Supreme Court and the next day there was abortion for all. And really there were like a bunch of different cases that were all addressing the same issues and it was just kind of

And I think as Sarah Weddington herself has written, like a kind of pure chance that Roe v. Wade happened to be the one that made it there first, you know, and that it was really, you know, that history is the work of many, but we like to simplify it for the TV movie. Yeah.

Yeah, I think that's often the way. I mean, in this case, John and Tyrone know each other and they're going to be arrested on the same night. So it's not quite as much as the kind of potpourri approach that happened when Roe v. Wade went up to the Supreme Court in 1973. But Tyrone, he is born in 1967. So he's 31 years old when we meet him.

He's a black gay man, the youngest of 10 children from a Baptist family. And he's Texan. He grew up in Houston. Most of the story of John and Tyrone, we only have it because of this guy, this law professor named Dale Carpenter, who interviewed them after the case and really dug in on things. So I want to send you what he has to say when he's describing...

Garner. I'm going to send it to you the same way if that's okay. Yeah, that's great. And then I'm also sending you a photo of John and Tyrone. Wonderful. Okay. So the quote says, he was shy, passive, and according to those who knew him, effeminate. He had a slightly bent hands on hips way of standing. When he smiled, he tended to cover his teeth with his lips as if embarrassed by their appearance. And then, yeah, the picture is

I don't know. Yeah, he looks kind of in a way like he looks his age, but he looks in a way much younger than than 31. Yeah, I think he's like kind of handsome and haunted looking a little bit. In the photo I sent you, it's during the court proceedings. So he's wearing he's wearing what looks like his funeral suit. You know, like the you can see that the tie isn't well done up.

I know. It's so weird that people like have to learn how to tie a tie at some point in their life. You know, I mean, not me, of course. And like and then suddenly it becomes imperative for stressful situations to get it right. Yeah. But yeah, it's like the black suit and like slate gray shirt.

Right. Yeah. Gray shirt and tie. Yeah. And it looks pretty big on him, too, which I'm sure is contributing. Actually, it's ruffled at the sleeves in a way that makes it look like a judge's robe. Yeah, right. Right. And I don't know, maybe it's even borrowed. So, yeah, that's him. And the other man in the photo is John Lawrence, who looks to me a little bit like Tim Waltz. Yeah. Well, Tim Waltz is like one of the five...

body types for men of a certain age, you know? And it's the one where you're like...

Okay. Yeah. I'm I'll talk to you at a cookout. I'm not afraid that I'm going to have to start hearing about guns. Right. Right. Exactly. Yeah. Yeah. Which is, you know, obviously a broad stereotype, but you know, I'll take it. I like this photo of the two of them because they're, you can tell that they're sort of out of their element, but they don't look scared to me. They look

Like they know they belong, you know? Yeah. Well, I don't know. I don't know the context of this moment, but they, yeah, they look like they're both watching and waiting to see sort of what happens next. And that is being able to stay focused on proceedings implies hope about the outcome, I feel like. Yeah, yeah.

Okay, so a little bit more about Tyrone. Tyrone graduated from high school. He took a typing course. But he mostly works odd jobs in restaurants. He cleaned houses. Dale Carpenter says he never owned a car and he never had his name on the lease of an apartment. Sort of a quiet, easygoing guy. And like John, he's got no involvement in the gay rights movement. And crucially living lives that mean that they...

you know, are just like getting by not bothering anyone and also can be crushed like ants if the, you know, system feels like it.

Yeah, that's right. And I mean, I think especially Tyrone is living in a kind of precarious way. He's often kind of couch surfing or living with family members, some of his siblings or with his parents and is kind of reliant on the other people in his life in a way. I mean, we all are, right? But...

But yeah, like in a more in a way that kind of the myth of, you know, getting the good job, getting ahead and not having to, you know, look to your family for your support, you know, in in the non-American dream kind of a way. Yeah. Yeah. And I think that's.

how so many people in America live and we are not able to talk about it in a way that's like normalizing. We either view it as something that is like a personal failing of somebody or as like a point of pity.

Yeah, we live in a country, especially, you know, lately where we're really still aggressively selling people the myth that if you can't afford, you know, food, shelter, housing, a car, clothes, sort of continuing to consume things and churn them back out the way the marketplace wants you to, that like that's the bare minimum. And yet, you know, it's really not, you know, the bare minimum thing.

I don't know. There is no bare minimum at this point that we can expect people to do individually, you know, because I think that's a dangerous idea, especially as it gets harder and more expensive. So that kind of life is something that we've culturally framed as...

having not succeeded at being American. And yet that is what Americans statistically, I think, are most likely to be doing is getting by one way or another. Right. Just getting by living in your car, that kind of thing. Yeah. And certainly not having a lawyer, you know. Well, that's right. I mean, I think one of the interesting things about this story is that Tyrone Garner becomes a pivot point for

on an important constitutional question that has affected millions of people's lives in the end. I told you a minute ago that John and Tyron know each other. So there's a third character in this story that I-- He's just in the first act, but it's worth getting to know him a little bit. His name's Robert Eubanks, and he's 40 in 1998 when we meet him. He's known John for a while.

And in fact, they used to be roommates very briefly. And John said that he couldn't live with Robert anymore because he was too wild. He also is somebody who does odd jobs. He's a cook. He works as the staff person at a boarding house, couch surfs, kind of sleeps where he can. And him and Tyrone are boyfriends, Robert and Tyrone. They live together in

Sometimes in a shared apartment and sometimes in boarding houses. And at least for one period, they lived together with Tyrone's Baptist family. By the mid-1990s, Robert and Tyrone are coming over to John's house periodically to do odd jobs for him and clean his house. Yeah.

And sometimes afterwards they'll go out for dinner or go out to the gay bar together. John lives in East Houston. It's like 20 miles from downtown. It's like quite far. On the days that they go, they take the bus. Yeah, it just feels like that would take a very long time. And you're dependent on the bus, right? Like the bus doesn't run all night. Right.

And it, in fact, runs infrequently during large parts of the time when it is in service. Yeah, there's like a special flavor to missing the bus that only comes once an hour. Oh, totally right. Yeah.

Yeah. Okay. So this is where we joined them, the three of them, in the Colorado Club apartment on September the 17th, 1998. The day, it's 90 degree weather. There's some optimism because Tyrone and Robert have got an apartment together. And John has offered to give the two of them some of his old furniture. So they've come to do some chores, to do some cleaning together.

and to prepare the furniture to take with them, they're going to take the furniture the next day or move the furniture into their apartment together the next day. You know the feeling on a moving day, right? Especially on a day that's 90 degrees, it's like...

There's hope and optimism and it's also hard work and it's easy to get grumpy. Right? Yeah. Yes. And there's like always, I feel like there's always more trips than you anticipate, you know? Totally. One task, you think you're going to take apart the bed and then you don't have the right tool. And so then the next task is getting the tool or whatever. Yeah. And it just kind of goes on and on until finally it ends and everything.

You collapse exhausted and swear never to move again. Totally right. Or in this case, at the end of their workday, they go to a Tex-Mex restaurant called Papacito's. And, you know, the kind of place that's known for fajitas and mojitos and that kind of thing. And they have dinner and drinks together. Yeah.

and go back to John's apartment around 9 p.m. Just the normalest day, you know? Yeah, just a thing that millions of Americans do. Moving day and big dinner, you know? I know it well. Totally. And I don't know what they ate or drank. I'm picturing the like fishbowl margarita. Yeah, or like, you know, there's somebody who's walking by with like sizzling fajitas for sure. And the smell. Americans were just crazy about fajitas in the late 90s. We loved that there was a

food that made a noise i think right it's still cooking and it's on our table don't touch it's very hot they don't know what's coming yet but um they're sort of marching toward it in a way yeah these three men are going to continue drinking back at john's apartment and there's going to be a disagreement

So John and Tyrone are in the kitchen watching TV. There's two TVs in the apartment, one in the kitchen and one in the living room. And Robert is in the living room by himself watching.

drinking straight vodka robert right this is like a gun in the first act straight vodka in the second act yeah and john eventually comes into the living room and says you got to knock that off and he takes away the the bottle of vodka this is what turns the evening kind of sour yeah i mean this is also the conditions under which rumors was recorded but you know yeah

Right. John has also continued to drink. I don't think he's been drinking at quite the same speed. Tyrone has stopped drinking. He's not continuing to drink. But they're having a disagreement at this point about how Tyrone and Robert are going to get home. So the bus isn't running. I mean, they've all been drinking and none of them has a car. It's just so stressful to not have a car in a spread out city. I know that's not the point, but...

I don't know, just worth noting. I mean, it leads to conflict. It can lead to conflict, as in this case, where John says to Robert, you're being belligerent, so you should leave. But Tyrone, if you want to sleep on the couch, you can stay. Robert says, no, I should be allowed to stay and Tyrone should have to go. Not that Tyrone's done anything wrong, really. Yeah.

But that's the kind of drunk logic, right? Is to be like... Yeah. God, so uncomfortable. I've been present in some of these evenings and you're just like, oh my God. Totally. Right? Yeah. And like tired and hot and stressed out about a move potentially. Like you can just imagine all of the circumstances piling on top of each other. Inevitably somewhat dehydrated, you know, based on the day. Yeah.

And so at 10.30, Robert grabs some change from the kitchen and he says he's going to go down and get a soda from the vending machine. So he goes outside, down the stairs, and when he gets to the vending machines, instead of putting his quarter in, and you can imagine the vending machines glowing in the dark in the exterior, open air, common courtyard. Instead, he uses the payphone to

next to the vending machine, and he calls in a complaint to the police. Wow. Could have gotten a Pepsi. Right? Or what was it? In 1998, is it Pepsi Clear? I don't remember when Pepsi Clear, when their moment was. I want to say it's earlier, but like,

I yeah, I there's something about the iconography of a 90s vending machine that makes the scene like really snap into focus for me because I remember I wasn't allowed to drink soda as a child, but I remember that I would get out of my swimming lesson and I would like stare at these vending machines that they had like outside the changing room because they and I don't think they really do this as much anymore. Or maybe I just don't notice. But like

the vending machine art of the nineties was like a beautiful high res image of like just a can of whatever soda surrounded by tons and tons of melting ice, you know, and like ice and water sort of like shooting up around it. And it was just like covered in condensation. And I was like, I have never had a soda and maybe I never will, but they look like the coldest thing and the most, the most refreshing thing in the world. And, uh,

this beautiful beacon of soda beckoning towards you, but it, you know, history is decided by what machine the quarter goes into and it goes into the other one. Yeah, that's right. That's right. And again, this is like pure drunk logic, right? So he calls in a report that there is a black man going crazy with a gun. Oh God, honey. Like Robert isn't realizing that the barrier to him staying over isn't Tyrone. Yeah.

it's his own bad behavior, which he's doubling down on. So at 10 to 11, the police radio goes out. The dispatcher says, clear units, beat 20. We have a weapons disturbance at the address, the Colorado Club Apartments, and his apartment number. And within minutes, there's officers on the scene. The first officer who arrives is a guy named Joe Quinn,

He's a white guy with a shaved head and like a kind of a swagger. Come on without, come on within and so on. Yeah, exactly. He's like, Carpenter describes him as having like a notoriously bad attitude towards citizens. Yikes. Like in his interview with Carpenter, he brags about the size of his internal complaints file. Yeah.

That kind of a guy. Don't you love how people act as if the public only turned against the police within the last 36 months or whatever? And it's like, no. It has been a very clear part of our culture for a long time that the police are known for not liking civilians. And we just have kind of known that and not worried about it on a large scale that much. It's like the fact that

We know something and don't appear to be bothered by it doesn't mean it isn't horrible. When the police tell you something about themselves and about their culture, you should believe them. Yes. Joe Quinn, here's a quote from Joe. He says, it's a survival mentality. I don't care what I have to do. They're not going to get me.

I'm going to, you know, if it comes down to it, if I have to run them over with a car, with a baseball bat, shoot them, grab a knife and stab them, whatever it takes, I'm going to win. Yeah, that's absolutely horrifying. And it does remind me of something about the O.J. Simpson trial I always found interesting, which was that, you know, we had, this is not a big spoiler for people who are waiting for the rest of the story from the show. And

And it will come someday, don't worry. But one of the issues that came up in the trial was that Mark Furman, who is an LAPD detective, had basically, there was a series of tapes that came to light from a female screenwriter who he gave interviews to about what it was like to work for the LAPD. And

he told stories in which he claimed to have engaged in just massive police brutality against black citizens. And one of the questions, you know, inevitably about that was, well, was how much of that appears to have actually happened. And like that area is interestingly inconclusive. And what seems to have happened is that he dramatically exaggerated the kinds of police brutality that he had engaged in, in order to,

apparently like impress and flirt with this lady screenwriter and which I think makes the whole thing interestingly mood right where you're like well even if you haven't done half the horrible things that you're bragging about you still think that you should brag about this kind of thing so it doesn't really matter you know like if those are

If that's how you think about your job, then, you know, it's an equally urgent problem, which I feel listening to that as well. Yeah, that's brutal. It says something about the kind of state of mind of at least some police officers, which is about kind of glorifying violence and control and, you know, I'm the one in charge. Right, right.

de-escalation is difficult and that's why it's worth training people to do it. And yeah, you hear a quote like that and you think of kind of our whole culture of maybe escalating conflict where there doesn't need to be any just so you can have something to dominate. Yeah, that's right. I mean, Carpenter's analysis is that

Joe Quinn is a kind of very rigid, hierarchical type of police officer. Not all police officers are like that, but like that is systemic. That is part of the structure of the police force. Right. Yeah. And also that he doesn't respond well to challenges to his authority. He's like kind of thin skinned about his masculinity. Which just, you know, it sounds like a delight. Just a joy to have in class.

Yeah. Yeah. And so putting him into this situation is not a formula for de-escalation, as you say. Yeah. So he's the first one to arrive. And by protocol, that means he's going to be in charge of the scene. And there he finds, standing about 50 feet away from the apartment, Robert Eubanks. And Robert is crying and he's like kind of visibly upset. Yeah.

And he repeats his claim that there's a black man in the apartment with a gun. Joe Quinn, Officer Joe, has his gun out and he starts barking orders at him. Like, come here, keep your hands where I can see them, that sort of thing. But like, Robert is essentially paralyzed and can't move. And so they're in this kind of like standoff for a minute until three more officers arrive. So now there's four police officers, right?

and they're able to pat down Robert, make sure that he's not armed. But they leave him kind of like shaking and crying on the streets, and they go up to the apartment. And here's the police account. So they say they try the knob, and it's unlocked.

And so they push the door, the front door all the way open. And Joe Quinn shouts, sheriff's department, sheriff's department. Four officers fan out into the apartment. The living room is empty. They check one bedroom. It's empty. The dining area is empty. And then in the kitchen, they find a fourth man named Ramon. No one expects Ramon.

He's joined them at some point, and I don't know when. I don't think we've got a really great account. He's not going to get charged with anything. He's just going to be there for the next little bit. He's just there throughout history, unexpectedly, just in the background, having a can of pay.

It's wild. So the police say they find him in the kitchen. They yell at him, don't move, let me see your hands. They order him onto his stomach on the floor. They frisk him, they handcuffed him, and they put him on the couch. Poor Ramon. Well, exactly, right? And then they go to the main bedroom. This is the last room to be checked. The door is open.

but it's dark inside and they can see in from the light in the living room. That's, that's the light that they have. Another officer, not Joe is the first one to go in. And then Joe joins him right after. So the, the, the police are in the room where they find, well, Joe says Tyrone is on the bed on all fours, completely naked. Um,

And John is behind him and they're having anal sex. The other officer says they're on the floor, not on the bed. And in 2004, he's going to say that it was

oral sex okay and later he's going to say he doesn't remember if it was oral sex or anal sex i you know i i those are different neighborhoods of the body i really feel like you would know joe says he ordered the two of them to to stop and for john to step back but they refuse and the two continue to have sex defiantly in front of the officers for another minute or so hmm now look

I really like to take people at their word, and yet this really does not sound like the most plausible thing I've heard today. What leads you to believe that? Well...

I just think, look, I'm not an expert on any of this, but I really just imagining myself into another life. I doubt my ability to maintain an erection after the police have burst into my home and held me at gunpoint, you know?

Right. So it involved, if this, if this version of the story is true, it would involve John and Tyrone persisting in their sexual encounter after Joe has knocked down the door yelling sheriff's department. And after he's yelled at Ramon to get on the floor, frisked him, handcuffed him, put him on the couch. And then after the first officer has even gone into this bedroom, um,

that they've persisted to continue having sex. It really doesn't make much sense, does it? Well, yeah, and I feel like it makes sense from the perspective that gay people and gay sex are not at all like...

normal police sex right where like when the gay sex spell is upon you like you don't care if you're being held at gunpoint that's part of the agenda you have to abuse police officers by forcing them to look at what you're doing you know and just the idea that like normal human concepts of like fear and privacy wouldn't cross a person's mind you know it's uh i don't know

Once you're in the realm of gay sex, like all kind of mores or norms or what you should expect humans to behave like is out the window. Right. Yeah. And I mean, it is, you know, it's this is, I think, a real theme and kind of if you dehumanize someone who you see as criminal, then none of their motives have to make sense. And you can just.

in my opinion in this case, make up the weirdest sounding stuff and not even have to justify why any human being could do it because you don't really see the people you're talking about as human is what I think that reveals partly. Yeah. Yeah. I mean, if you think about it in terms of human motivations, Robert's gone to get a soda. They haven't locked the front door. Yeah. Or closed the door to the bedroom. Ramon is over. Yeah.

Like, right. They're telling Ramon, just sit tight. We're going to go get it on. And please don't tell Robert when he comes back. We're just going to go have a bit of anal. Yeah. Yeah. And like, not to get gross about it also, but they've just returned from a Tex-Mex restaurant. And a long day of like physical labor in a hot, like in a hot environment. Yeah. You know, Sean is an older man. Like after a day like that, like.

Would you be interested in sex with your acquaintances? Maybe. But like, would it be sort of less physically taxing? I don't know. I feel like, yeah. Right. But the point is that it's like whatever they were doing was defined not by the kind of day they'd had by like what would be most offensive sex.

To a policeman, I guess, in this situation. I want to see, and I wonder if there is, I would like to think there is, but like a nice porno based on this scenario. I'm sure there is, yes, where they defiantly do not stop when the police officers knock down the door. Yes, and then they have no choice but to fall under the spell. Yeah.

Yeah, I'm sure that that's out there. I don't know that it's branded as Lawrence v. Texas specifically, but there's an opportunity out there, free idea. Well, you would need to do something to get her on life rights, yeah. But people would know. We both doubt the story, it's fair to say. And also to clarify, because I do feel like this is

From the beginning, a very interesting term where it's like, okay, so sodomy is a legal term. I, of course, when I hear it, think of the song from Hair, because I think there's a song in Hair that's called Sodomy. But what is sodomy as legally defined? And what's some of the baggage that this word is carrying with it by the late 90s? Yeah. I mean, if you go all the way back, most American sodomy laws have their lineage begin in England, right?

in 1533 under Henry VIII. Ironic. Totally. If you think of what he's doing, he's trying to move power away from the church and into the state. And so one of the things that he does is take a bunch of things that used to be ecclesiastical crimes, and he moves them into becoming state crimes. And one of them is

what's known as the Buggery Act of 1533. Oh, Britain. Right? The early American colonies adopt versions of it pretty quickly. So the first one in what will become the United States is in the 1610 Code in the colony of Virginia. And in both the British law and the colonial law and for some period after independence,

There's not a good definition of Sarni. And in fact, it means different things to different people and different judges. It's a category that has typically meant anal sex and oral sex, regardless of the gender of the participants. Also, typically bestiality has been under that umbrella. Yeah.

could sometimes be used to prosecute rape, child abuse. It's refined over time. So it's kind of like how we use the term sex offender today, where it's like, well, which one is it, though? Is it public urination or did they actually abuse someone? Like, did someone, you know, what is someone being accused of here? And then it feels like the elasticity of that can be used, you know, dangerously. Right. You can dial up or dial down the severity of it, depending on what you're talking about.

And you can use what might be thought of as a relatively minor infraction to do pretty serious personal or political harm to somebody if that's your goal. Mm-hmm. Texas, where we're going to be spending most of our time today. I told you, Thelma, I'm not going to Texas. Yeah.

So Texas is a republic from 1836 to 1846. And during that time, there's no specific prohibition on sodomy. And nor is there a specific prohibition during the first 15 years of statehood. So it gets its first sodomy law in 1860. Which is a very interesting time to be implementing sodomy.

laws about human behavior. It was a nice moment to choose a diversion, I imagine. Right. I mean, these kinds of laws get picked up in periods of economic uncertainty or whenever we need a kind of punching bag. And so maybe it's not surprising that 1860s

In the 19th century, there is a push to strengthen various types of social prohibitions on sexual conduct. The Texas courts in 1867, in a case called Campbell, conclude that sodomy is too poorly defined, and so we can't enforce it. And so it's not for another more than 10 years, right?

that the legislature fixes it toward the end of the 1870s. But after that, the Texas courts do enforce it. And in particular, they prosecute a lot of consensual oral sex. And yeah. And what does that look like? And what kind of punishment does that involve? Punishment is going to vary over depending on which historical period you're talking about with the Texas sodomy law. Um,

Some of them have, for some periods, the mandatory minimum is two years. And for some, it's a mandatory minimum of five years and a ceiling of 15 years. Most of the time, private acts of anal or oral sex among consenting adults are

behind closed doors are not prosecuted because how are the police going to know that it's happening? Right. So it's, you know, from the beginning, a weird thing to try and enforce or claim you can have on the books, really. That's right. And so most of the time when there is a prosecution, it's because either someone was a young person or because it involves forced sex or because it was happening in a place that was not totally private, either semi-secluded. And, you know, like...

The idea that people have private bedrooms and private houses, that everyone could afford that, it's like a really kind of 20th century idea. And so you have lots of people living in boarding houses and rooming houses in kind of congregate settings where privacy is not total, if I could put it that way. Yeah.

In 1925, there's a new penal code that's passed and they inadvertently leave out sodomy. It's blinked out of existence again. But by the mid 1930s, the Texas court says, no, that must have been an accident because they couldn't have possibly intended to decriminalize sodomy. Wow.

What kind of language is there around the necessity for this law? Do we know what people are saying is going to happen if they don't criminalize it? I mean, these are laws that are designed to promote public morals. And at this time, what we're talking about now, around the turn of the 20th century, there is an uptick of these kind of, like there's temperance movements and this kind of Christian good governance stuff where the goal is to create a

quote unquote, clean Christian population in the United States. Not at all like now. Right. We're going to see these parallels throughout the story of various things that look not all that different than what's going on now. And I do think that that's comforting because that period, we get a new sodomy law in 1943, which is explicit. It says oral or anal sex, regardless of gender,

bestiality and lewd conduct with a minor. Those all qualify as sodomy. Yeah, again, that also feels like that serves to function to stigmatize all acts of deviant sex as

equally dangerous regardless of whether they're abusive or involve a victim or are completely consensual in between adults. It puts them all on a level playing field, it seems like. Yeah, that's right. Erasing difference and gradations. Well, and it's interesting because it makes consent irrelevant as a concept, right? And that seems to still be very alive in purity culture today, where the fact that it's deviant is the problem, not the fact that it's

dangerous or that there is a victim involved. I think that's right. And, you know, this 1943 sodomy law is actually going to get struck down by the Texas Supreme Court, the Texas Court of Appeals in 1970 because they say that

If married couples want to engage in this activity, why shouldn't they be allowed to? Which is such an interesting sort of legal quandary we've put ourselves into of like, well,

if you're married, then everything is fine. So how do we square that one? Right, right. I mean, part of it is just this idea of a zone of marital privacy. The idea that a heterosexual nuclear family is sanctified. And that's the one area where the state should be reluctant to legislate. It's also this idea of marital privacy is what animates the first of the

contraception cases. Right. Prohibition on providing, on selling contraceptives to married couples is unconstitutional for essentially the same, the same reason we've been discussing. And it's only a few years later in a case called Eisenstein and Baird where that's broadened to include unmarried couples. After the Texas court

that the sodomy law is unconstitutional in 1970, we get a new law, and this is going to be the law, this is our law, this is the one that we're going to be following through the courts in 1998. It's known as the Homosexual Conduct Law, and also known as 2106. It's going to be the law that John Lawrence is charged with. It defines deviant sexual intercourse as

as contact between the genitals and the mouth or anus. Yeah, but it also, so it only prohibits this conduct if you do it with somebody of the same sex. So straight people are excluded altogether. And for one of the first times in history, lesbian sex is also criminalized. Oh, equality. That's nice. Yeah.

Now, at the same time, this law is a major relaxation in terms of penalties. It imposes fines and no risk of jail time. There's just this moment in the 70s where they're prepared to introduce a new criminal code offense, a new homosexual conduct law.

but no jail time. So I'm sure that this wasn't the plan, but I like to imagine that there would have been a meter maid going around just writing tickets for public sex.

Then you can contest it. That's it. That's it, right? Like, it is true that when you go to challenge these tickets, you're essentially going to traffic court because it's such a minor crime. It does feel kind of like an ideological compromise where it's like, we're going to keep stigmatizing this behavior, but only as much as double parking. Yeah.

I mean, it's quite odd. And other states have more, like in the 70s, other states have more significant criminal penalties for this kind of conduct. I will say also that there are efforts to repeal it almost immediately, which is delightful. There's a state legislator named Craig Washington who tries to get it repealed in 1975. And there's repeal efforts in...

1977, 1979, in the 80s, in 1993. Like, even in the period we're talking about, there are repeal efforts in the legislature in 1997, 1999, 2000. So there are efforts at every stage of this, this law's life to get it off the books.

But it gets passed and it soldiers on for a long time, it sounds like. Yeah, I mean, stop me if you've heard this one before. Sometimes they have the votes in the House, but they don't have the votes in the Senate. Yeah.

the state Senate. Sometimes it's a matter of, you know, like when it's first introduced, it's unpopular and passes, it fails by a wide margin, but at other times it's like really on a razor's edge. Yeah. And I mean, what do you, what effect do you think this law passing and surviving for, for the slung had on people generally? Yeah.

I think in a way you sort of had to be there. And what I'd love to do is send you a quote from a guy named Ray Hull, who is a longtime gay activist in Houston, about the effect of this law. So I'm sending it to you now. Yeah. Okay. Okay.

Every time you went to apply for a job, somebody thought, you're a criminal when you go home and you can't have the job. And every time that you wanted to be a police officer, they said, no, this lesbian violates Texas law when she goes home at night and she can't be a police officer. So we went through that on adoptions. We went through that on custody. We went through that in probate court. And we went through that with employment. So 2106 was enforced every day, but not as a criminal statute.

Yeah. So, I mean, it was enforced as a criminal statute. It was primarily used in cases where there was some other factor and especially in cases where it was cruising or some other public or semi-public conduct. It was very hard for the police to enforce it as a criminal statute for activity, consensual activity among adults that took place behind closed doors. In a way, I think that's what makes...

Lawrence v. Texas so interesting because it is a case about sex behind closed doors. Yeah, so I think that, I mean, the parking ticket comparison for me, I feel like, you know, like, sure, maybe they're both fines, but that feels very simplistic on my part and very flippant as well. Because really, it's like, we're talking about how laws function differently

as a tool used by people, not to quote the Joker here, but living in a society, right? And how like, like a very small minority of people actually work with the law enforcing it or, you know, dealing with it directly, but everybody else is able to use that, those laws existing in the language of them as, you know, sort of language from, like you said, the daddy in the sky saying, you know,

hey, it's not just your opinion that you don't want to live next to gay people. It's the law's opinion as well. Yeah, it's essentially like a social license to discriminate. Right. I mean, it's not surprising that the U.S. Supreme Court doesn't recognize that gay people are protected from discrimination in employment until 2020. Right.

I think people underestimate how crushing it is to have aspects of your fundamental identity become a kind of political football or like punching bag or something that is that reply guys can debate about.

I mean, we're watching this in particular around trans people right now and access to healthcare, where the idea that our very existence is something that is a political controversy or something that is, quote, reasonable people could disagree about, unquote. In all of these cases, these gay rights cases that go up in the 90s and then 2000s, there are stinging dissents around

from Supreme Court justices that are saying in argument before the Supreme Court on Lawrence v. Texas, one of the judges asks the lawyer, well, if we side with you, doesn't that mean that we're not allowed to give preference to heterosexual kindergarten teachers and we're going to have to employ gay kindergarten teachers?

And there's just like all of this underneath that question, this sort of substrata of prejudice and assumptions and stigma. And so, yes, we're very much living in that world. During the course of the appeals process, while this is going up, there's very good reason why the lawyers are going to tell John and Tyrone not to contest the underlying conducts.

And so we are never going to get Officer Joe Quinn under oath. We don't get testimony. We don't get cross-examination. By like 2005, the two of them are strongly hinting that they were not engaged in a sexual encounter. And later on in the decade, John Lawrence will out and out say, no, there was no sex that day. Yeah, yeah.

But here's where their stories reconnect. And there's agreement between what the police officer's account and John's account, which is they're questioned about the gun. And obviously there's no gun. There's no gun in a cursory search. So the officers then go and get Robert Eubanks, the guy who's like been left crying in the dark in the courtyard and bring him back in.

And so now they're all four of them sitting on the couch, handcuffed and angry. Yeah, right. Like the day has turned from a pretty normal feeling day into something unusual for them. Yeah, John Lawrence is really mad about,

As you would imagine. And he's like telling the police, I can't believe you're in, like, why are you in my house? You're not allowed to be here. He calls them stormtroopers. He calls them the Gestapo. Love it. He calls them jackboots. These are very good older man insults. Yeah. And I certainly agree with the substance. And you can imagine that Officer Joe doesn't take kindly to that lack of respect. Yeah.

Meanwhile, there's a piece of art in the bedroom, which is like a caricature drawing of James Dean with an exaggerated hard-on. Nice. So the police have seen that, and we don't know the exact sequence of events, but Tyrone's later going to say the police are using derogatory slurs. Mm-hmm.

to refer to them, calling them the F word and calling them queers. And I should say also Tyrone, Tyrone is not mouthing off to the cops. He's quiet. He's following the police's various orders. He's surrounded by white men who can't shut up. What a dream. Right? I think people in police interactions tend to know what their kind of, how much kind of power or privilege they have to push back in a particular situation. Yeah.

And maybe some white men overestimate that in the case of John Lawrence at this moment on the couch, perhaps. But it seems to me that Tyrone Garner is painfully aware of the position that it potentially puts him in. That said, Officer Quinn will later say that he remembers Tyrone as being a naggy little B-word. Gotcha.

So, yeah, with everyone on the couch, the police conduct a more thorough search. There's no gun. There's no illegal drugs. They do find porn magazines. It's the 90s. And they go through them looking for child porn, but there's no child porn. And so Joe...

apparently calls a 24-hour DA telephone line and asks the lawyer on duty, can I charge these two guys with breaching the homosexual conduct law if it takes place in private? And he's told that he can. So John and Tyrone are charged with that. And Robert Eubanks is charged, as you can imagine, with making a false police report. And Ramon is let go. And that's the last that we hear of Ramon. Wow.

All right. Happy trails, Ramon. Robert is charged with making a false police report, which is about dishonesty. Right. Right. And if we're reasonably sure that the police are making up the story about catching John and Tyrone in the act, then they're making a false report.

It's not a report to the police, but they are falsely saying what happened. And I just think it's like a parallel that, you know, you've got these two angry men who are looking for a way to cause havoc in John and Tyrone's life. And they're successful. Yeah. Honestly. Yeah, and I think it also shows that, you know, what comes up

I think often in stories and cases about how the law applies to marginalized groups is this idea that American law is constructed. I think it's easy to see on the unspoken belief that technically it applies to everyone, but it literally only applies to people who the powers that be feel the need to keep in line. Yeah, and that feels really salient for this story.

Joe Quinn's pissed off. And when he's pissed off, he's going to act out. And now we're going to see the consequences of that. Joe Quinn makes one more decision, which is to take the men down to the station. He doesn't need to do that. Like this is a extremely minor misdemeanor. Yeah. Punishable by a fine. And instead he drags them out of the apartment. John is so pissed off.

that he refuses to walk down the concrete stairs and he's dragged down the stairs. He refuses to put on shoes and he's taken their, he's wearing like a shirt and kind of underwear, but he's not wearing pants and he's not wearing shoes. And so he's dragged out of his apartment.

him and Tyrone are taken to the police station. Not really a fun place to leave them for this week, but there's more to the story. And we get some good moments with John and Tyrone soon. Yeah. Yeah. Well, and I'm looking forward to that. And also just, I don't know, I love in a way that like, this is a story that actually, that went somewhere that had, you know, that there were, that it didn't all just end after a couple of days and become one of

uncounted injustices that just befall people and that have no, you know, don't lead anywhere bigger. Yeah. Well, yeah. And it could just as easily have never seen the light of day. Yeah. And the reason that it gets out is because of queer gossip, which is delightful. I can't wait to get back to everyone. And that was part one. Thank you so much for joining us. Thank you for learning with us.

Thank you to Marcus McCann, our guest today and author of Park Cruising, What Happens When We Wander Off the Path. Thank you, as always, to Carolyn Kendrick for editing and for producing part two of this episode. Part two of this episode will be out in a week, and we can't wait to share it with you. See you next time.