Author Chats
Historian Wesley G. Phelps Traces the Long Road to LGBTQ Equality
June 13, 2023
It’s been 20 years since the U.S. Supreme Court decriminalized consensual gay sex with its landmark decision in Lawrence v. Texas, setting the stage for the legalization of same-sex marriage in 2015 with Obergefell v. Hodges.
In his absorbing new book, Before Lawrence v. Texas: The Making of a Queer Social Movement, history professor Wesley G. Phelps of the University of North Texas takes readers back to the decades-long effort to strike down the Lone Star State’s sodomy law, which was often used to prevent members of the LGBTQ community from obtaining certain jobs, housing, and government assistance. 
“I am really interested in the history of how democracy works at the local level and how marginalized people have struggled to be a part of the democratic experiment in America,” Phelps says of his decision to write about the groundwork, activism, and litigation that made Lawrence possible.
What inspired you to write Before Lawrence v. Texas?
My first book, A People’s War on Poverty, is about civil rights and anti-poverty activism in Houston. [It involves] Louie Welch, the mayor from 1964 to 1973 — pretty much the whole scope of the book. He ran for mayor again in 1985 and had one of those hot mic moments when he was about to go on a newscast and did not know that they had already gone live. He was joking with the camera guy about his plan to end the AIDS crisis in Houston. He said the first point of his plan would be to “shoot the queers.” I came across that story when I was researching for my dissertation, and I just thought at some point I should go back and revisit [it].
After my first book came out in 2014, I [looked into that] incident and discovered that [Welch’s] statement was uttered amidst a vicious battle in Houston over a nondiscrimination ordinance that the city council had passed protecting gay and lesbian workers in municipal employment. I wrote an article about the politics of sexuality around that ordinance. As I was writing, I learned that Texas’s sodomy law, the Homosexual Conduct Law, [had been in effect] since 1973.
I thought, what an interesting coincidence that this battle over the nondiscrimination ordinance happened in the precise window where the sodomy law had been ruled unconstitutional. I was not even aware that it was still in effect until 2003, when I read Dale Carpenter’s book, Flagrant Conduct: The Story of Lawrence v. Texas.
I thought, we have got a great history of Lawrence. But what are the cases that came before Lawrence? That is really what inspired me to write this book.
Talk about how you conducted your research.
I operate as a lot of historians do — [working] backwards. The first case I came across was Baker v. Wade, which was filed in 1979. I discovered there were records of this case in Austin at the [Dolph] Briscoe Center [for American History]. As I was doing research there, I found records of an organization called the Texas Human Rights Foundation. They are the ones who launched Baker v. Wade, and I found just pages and pages of legal documents that, as far as I know, researchers had not really used before. I had never seen any of these materials cited.
[From the Baker case], I found Judge Jerry Buchmeyer’s decision [in 1982] and the Fifth Circuit Court of Appeals’ ruling from 1985. There were legal briefs filed by both sides in the case. There were transcribed depositions in there. There were letters and memos that passed between the Texas Human Rights Foundation and Don Baker and other activists. Not only that, but there were discarded drafts of these legal briefs too, which allowed me some insight into how this constitutional argument evolved over time.
I discovered a case that was filed in 1970 called Buchanan v. Batchelor, [involving] Alvin Buchanan, who was arrested in a quasi-public place but nevertheless filed a constitutional challenge against the Texas sodomy law.
I thought, surely there are cases even before that. The earliest case I was able to find was from 1867. What makes cases before Buchanan [different] is that there were really no constitutional arguments. There were arguments about the vagueness of the law. A lot of times, when people would be arrested for violating the state sodomy law, the language of the law was so vague that it didn’t really define a crime. In the 19th century, the sodomy law was stated as the abominable and detestable crime against nature. A lot of defendants would say, “What is that?”
[Defendants] got charges against them dropped, or their cases were thrown out by judges, who agreed that [the sodomy law] did not specify a crime. The Texas legislature took a while to specify. But in 1943, it did. It wrote a new law very specifically criminalizing oral and anal sex among everyone — members of the same sex, opposite sex, married, unmarried. It was illegal for everyone.
That is when we started to see courts upholding convictions, because the law was more specifically defined. It was not really until 1970, with Buchanan, that we got constitutional arguments. So, that is really the focus of my book.
From there, it was fascinating to see this almost straight line from Buchanan to Baker in 1979 to Morales v. Texas in 1989 to England v. City of Dallas in 1990. It was really interesting to see the evolution of that constitutional argument all the way up through Lawrence.
Tell us a personal story you uncovered while writing the book.
One was [about] Don Baker, who seemed to be an extremely remarkable individual. He was born in Dallas and grew up in Oak Cliff, Texas. His grandfather was an Assemblies of God minister. Don Baker grew up in the Assemblies of God church and had internalized its messages about homosexuality. His sister, Maggie Watt, told me that Don would often go to prayer lines and beg to be cured of his sexual orientation.
This continued into his high school and college years. He had not yet had a sexual encounter with another person, but was just racked by guilt over his desires. He tells the story of sinning in
the Student Union at [the University of Texas] one day, watching football. He was a big football fan, and another student approached him. Don got the feeling that something might happen with this man. They went to the restroom, but Don just could not go through with it; he was too guilt-ridden.
So, he dropped out of UT and started seeing a psychotherapist at the time who told him, “Look, if you want to be cured of your homosexuality, maybe you should join the military.” Seems like an odd choice, but that is what he did.
He served in the Navy for four years and never had a single sexual experience there. This was between 1968 and 1972. He loved the military. I guess it took his mind off his sexual orientation. But when he got back to Texas in 1972, [his guilt] started up again. He considered taking his own life — it got that bad. He moved to New York and went to graduate school in education there.
[Don] discovered that there were gay and lesbian people in New York who were not the monsters that he thought they were. They were regular people who happened to be gay. [He] started his process of coming out and accepting himself. He moved back to Dallas. He came out to his family, which was quite supportive. He became a substitute teacher at an elementary school in the same town he grew up in.
[Later,] the superintendent of Dallas schools announced that if there were any gay or lesbian teachers in his district, they would be fired immediately. This really sparked something in Don. Over the next year, he decided that he needed to be a public activist about this issue. He went back to get a graduate degree at Southern Methodist University in Dallas. While he was there, the Texas Human Rights Foundation approached him about being the plaintiff in Baker v. Wade, which he agreed to do. This meant having a public life like he had never experienced before.
He was the public face of this case, which got a tremendous amount of media attention, and he handled it beautifully. Don Baker was a born educator, and he knew from the very beginning that this case was not just about a discriminatory law. It was not just about getting rid of this [sodomy] law that targeted gays and lesbians. It was about eliminating the criminal stigma from the lives of regular gay and lesbian people.
If you start thinking about all the things you could not do in the state of Texas if you were gay or lesbian, like becoming a police officer, lawyer, doctor, or even hairdresser, you needed a license and had to sign a form [declaring that you upheld] all of Texas’s state laws. For gay and lesbian people, you were either shut out from those professions or had to commit perjury to get those jobs.
But the discrimination went even further than that. You could be legally denied housing because you were gay or lesbian. You could be legally denied food stamp assistance. You were subject to police harassment. You were subject to harassment and violence from your fellow citizens, all because this law placed that stigma of criminality on your life.
Don Baker understood that and was able to explain that the Texas sodomy law was not just about police officers breaking down the doors of people in their bedrooms having sex. This law was about providing a justification for rampant discrimination. Unfortunately, Don Baker died in 2000 from cancer, but his sister Maggie really offered me a glimpse into what he was like as a person.
I understand that you’re launching a complementary 10-episode podcast, Queering the Lone State. Talk a bit about it.
Our official release date is June 22. When I first submitted the book, I turned in a manuscript that was about 170,000 words, and [the publishers] told me I had to cut it down to 110,000 words. There are a lot of things I had to take out of the book.
A lot of times, historians use that extra material and publish it as journal articles, book chapters, or essays. I did a little bit of that, but I thought [having a podcast] might be more interesting for people who don’t read historical journals or books.
Each episode takes one single case from the book, then gives a little more detail than what I am able to provide in the book. We will hear the voices of people who were actually involved. In fact, our first episode is about Buchanan v. Batchelor.
