Before Lawrence v. Texas Q&A

Q&A with Wesley G. Phelps, author of Before Lawrence v. Texas

In a Washington Post op-ed titled “The fall of Roe forecasts trouble ahead for key LGBTQ rights,” author Wesley Phelps outlines the connections among several Supreme Court battles that have served as critical building blocks for decades of advancement in constitutional protections for LGBTQ Americans. “By overturning Roe,” Phelps writes, “the U.S. Supreme Court has removed a significant pillar in the foundation of equality and created the potential for dramatic changes in the lives of millions of people who depend on a constitutional right to privacy in their daily lives.”

Roe paved the way for another landmark SCOTUS case. In 2003 the Supreme Court overturned anti-sodomy laws across the country, ruling in Lawrence v. Texas that the Constitution protects private consensual sex between adults. Wesley Phelps has a new book on the grassroots queer activism and legal challenges that led to that decision. Before Lawrence v. Texas: The Making of a Queer Social Movement officially publishes today! We asked Phelps a few questions about his book, its significance to today’s Supreme Court, and why the landmark ruling might never have happened were it not for the passionate struggle of Texans who rejected their state’s discriminatory laws.

Lawrence and Garner’s legal team raised a number of constitutional objections to Texas sodomy laws, but only the privacy argument prevailed before the court. Given the Supreme Court’s recent ruling and how Dobbs impacts privacy protections in particular, what are the other constitutional objections that could be used to protect LGBTQ rights?

The Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization is worrisome for proponents of queer equality because the same constitutional right to privacy at the core of abortion rights decisions is central to many judicial rulings on LGBTQ rights. Every constitutional challenge to the Texas sodomy statute leading up to Lawrence v. Texas in 2003 relied on the right to privacy as established in Griswold v. Connecticut in 1965 and affirmed in Roe v. Wade in 1973. Although Lawrence and Garner’s attorneys raised additional constitutional objections, it was the argument centered on privacy that ultimately convinced the majority of the Supreme Court to strike down the Texas sodomy law in Lawrence. In Dobbs, Justice Samuel Alito asserted that although the high court found that “Roe was egregiously wrong from the start,” the decision did not threaten other judicial precedents that rely on privacy. Yet Justice Clarence Thomas made it clear in his concurring opinion that landmark decisions like Lawrence v. Texas and Obergefell v. Hodges were now in the court’s crosshairs in the wake of Dobbs.

Although invoking the right to privacy has been the most effective strategy in the judicial struggle for queer rights, it has not been the only one. Most of the legal challenges to the Texas sodomy law, including Lawrence v. Texas, also appealed to the equal protection clause of the Fourteenth Amendment. In 1982, for example, in a case known as Baker v. Wade, a federal district judge struck down Section 21.06 of the Texas penal code, also called the homosexual conduct law, on the grounds of both privacy and equal protection. Although an appellate court reinstated 21.06 a few years later, legal strategists and queer activists used similar arguments in Lawrence v. Texas in 2003. Supreme Court Justice Sandra Day O’Connor, in fact, found the equal protection argument more persuasive than the privacy argument. In her concurring opinion in Lawrence, O’Connor agreed to strike down the homosexual conduct law because it singled out gay and lesbian Texans and punished them for sexual conduct that was legal for opposite-sex partners. “A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class,” O’Connor wrote, “runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review” (p. 585). In the post-Dobbs era, it might become necessary to revisit some of these alternative constitutional protections for queer Americans.

Some people associate political organizations with providing resources to people in need or under threat. Can you outline how historically influential many grassroots organizations have been in legal fights and in shaping the trajectory of equal rights protections in this country?

The gains of the queer rights movement over the last two decades are the products of grassroots activism largely carried out through political organizations. In Texas, for example, it was the Circle of Friends (COF), Dallas’s first gay organization, that provided what little support it could to the first constitutional challenge to the state’s sodomy law in 1969 in Buchanan v. Batchelor. In 1974, Fort Worth resident Ken Cyr created the Awareness, Unity and Research Association (AURA) and relied on the organization in his successful harassment lawsuit against the Fort Worth Police Department. Two years later, several grassroots activists affiliated with the Houston Gay Political Caucus (HGPC) created the Texas Human Rights Foundation (THRF), which sponsored Don Baker’s case against the state’s homosexual conduct law in 1979. With help from the Dallas Gay and Lesbian Alliance (DGLA) and kindred groups from around the state, Baker v. Wade became the first case in which a federal district court struck down a state sodomy law based on the constitutional rights of gay and lesbian citizens. Unfortunately, an appellate court reinstated the law in 1985. THRF activists tried again to eradicate the state sodomy law in 1989 with Morales v. Texas, but this time the Texas Supreme Court defeated their efforts. Nevertheless, these early cases laid the groundwork for the eventual invalidation of the homosexual conduct law in Lawrence v. Texas in 2003.

Queer political organizations were instrumental in these efforts to eliminate the discriminatory sodomy law from the Texas criminal code. With the creation of COF, AURA, HGPC, THRF, DGLA, and similar groups all over the state, queer activists raised the necessary funding and provided the essential organizational support to challenge state sodomy laws, which they rightly viewed as the primary justification for the harassment, discrimination, and violence they faced. When police arrested John Lawrence and Tyron Garner for violating the state homosexual conduct law in 1998, the two men and their attorneys never had to create a legal strategy out of thin air or scramble to find organizations to support their efforts. The requisite elements were well established by that time, and the successful outcome of Lawrence v. Texas depended on a long history of activism and organizational momentum in the state of Texas extending back several decades.

What is your favorite personal story behind the many battles and organizing efforts covered in your book?

Don Baker’s constitutional challenge to the Texas homosexual conduct law is what first drew me to writing about this topic. In 2016, I came across Baker’s story while I was conducting research in the records of the Texas Human Rights Foundation at the Briscoe Center for American History at the University of Texas at Austin. At the time I was writing an article about the struggle for a non-discrimination ordinance to protect gay and lesbian city employees in Houston during the 1980s, and I thought the Baker v. Wade case might be an interesting way to contextualize this local battle and provide a statewide picture of the gay and lesbian rights movement. When I discovered the intricacies of this case, however, and especially Don Baker’s compelling life story, I knew a book was waiting to be written.

Don Baker grew up in a very religious household in Dallas’s Oak Cliff neighborhood during the 1950s and early 1960s, the grandson of a fiery Pentecostal preacher. He struggled with his sexual orientation for much of his teenage and young adult life, only accepting that he was gay in his late twenties. Going to work in 1975 as a teacher at an elementary school in the same Oak Cliff neighborhood in which he had grown up, Baker kept a fairly low profile and exceled at his job. When the superintendent of the Dallas Independent School District announced that gay and lesbian teachers would be terminated if district officials discovered their sexual orientation, however, Baker felt powerfully drawn to activism. When members of the Texas Human Rights Foundation went searching for the perfect plaintiff for their legal challenge to the state sodomy law, Baker became the obvious choice.

At heart, Baker was an educator, and he spent most of his time as a plaintiff in Baker v. Wade between 1979 and 1986 trying to educate the public about gay and lesbian people and explain how the homosexual conduct law affected their lives. He was an expert at this, crisscrossing the state with an evangelical fervor, speaking with both friendly and hostile audiences, and using his own life to illustrate how the sodomy law rendered people like him second-class citizens. Baker also had an astute sense of history and a remarkable awareness of his place within the larger movement for queer equality. “I am very aware of the fact that we may lose the decision,” he reflected as it became clear that Baker v. Wade would not bring an end to the homosexual conduct law. “Long after the debate and arguments of this case, I hope to say we brought something to Texas and a better understanding of gay people. You have to look at the long term, not the short term in this case.” Baker could hardly have foretold that it would take another seventeen years to overturn the Texas sodomy law or that unfortunately his goal would be achieved after his death from cancer in December 2000. He understood, however, that the struggle for equality waged by queer Americans would be a long one and that despite short-term setbacks, activists must remain vigilant in their quest to be treated as first-class citizens and as human beings.

Wesley G. Phelps is an associate professor of history at the University of North Texas and the author of A People’s War on Poverty: Urban Politics and Grassroots Activists in Houston.