Chapter 20: Decisions, Decisions

Wednesday, September 4, 1985

Whatever Gene’s news was, it certainly wasn’t in the morning paper. Nor the news, nor the Batt.

Besides the general feeling of angst we probably all felt waiting for whatever news was coming, the day was pretty unremarkable. I felt mostly back in the rhythm of classes, and wasn’t seeing this as a particularly challenging semester class-wise.

That might have been different if I didn’t have so many friends and study buddies, but I did.

Cammie’s pager went off as we were walking from Martial Arts to the cafeteria for lunch. She abandoned us to return the call, saying she’d find us when she could.

Sure enough, she turned up about fifteen minutes into lunch, saying Maxine had an issue and wanted Cammie’s thoughts. I wasn’t sure Candice or Sherry would pick up on it, but I was pretty sure Cammie was avoiding saying some things simply because they were there.

Once they left, Cammie confirmed that. We didn’t have time now, but she wanted to have a real estate discussion after dinner.

The evening news finally explained what we had been waiting for. It was probably lucky that Candice and Sherry hadn’t joined us, because I think they would have realized there was something going on just from our faces.

The newscaster said, “In other news, the Fifth Circuit Court of Appeals issued an en banc decision in the case of ‘Baker v Wade’. In a ten to six ruling, the court held that Texas’s Sodomy Law was unconstitutional...”

A wave of cheers and shouting drowned out a bit.

“ ... say they will appeal the ruling to the Supreme Court.”

“Well, of course they will,” Cammie said.

I, meanwhile, was stunned. Angie looked stunned, too, if less so.

Mel, looking at me, said, “I take it this is a surprise?”

“This ... it’s a monumental surprise,” I said.

“Tell us?” Paige asked.

“So...” I said. “This ... obviously ... didn’t happen in my first life.”

“Nor mine,” Angie said. “It was illegal the whole time. They used to threaten us with prosecution. Never did, but it was a routine threat.”

I said, “In my first life, there was another case ... um ... Bowers v Hardwick? I’m pretty sure that’s right. Anyway, another case. Georgia, I think. That circuit struck down the sodomy law there. It got to the Supreme Court and they reversed, so we were stuck with sodomy laws until ‘Lawrence v Texas’ in... 2000-ish. Early 2000s. That’s the one that did away with them for good.”

“So maybe this one gets reversed,” Angie said.

“Perhaps,” I said. “It’s still a huge change. But ... well, it’s a different decision. Maybe whoever wrote it did a better job and wrote something the Supreme Court would uphold. If I remember right, one of the Justices — pretty sure it was Powell — was really on the fence until the last minute. Swing Powell’s vote, and we get ‘Lawrence’ nearly two decades sooner. The effect of that is ... incalculable.”

“Curtis?” Angie said, stating the probably obvious.

“I have to wonder,” I said. “This would be a pretty big unintended consequence!”

“You think?” Cammie said, giggling. “A damn good one! But still.”

We were chuckling over that when we heard footsteps on the stairs. A second later, Candice and Sherry appeared.

“Did you hear?” Sherry said, bouncing.

“We just did!” Angie said.

There was a flurry of hugs and celebration, of course.

“The insulation is working,” Paige said, giggling.

“Oh?” Candice said.

“We were cheering our heads off about five minutes ago.”

“Didn’t hear a thing,” Sherry said.

“Which is good,” Candice said, smirking. “We don’t want to hear you, sometimes!”

“Nor get heard,” Sherry said, giggling a bit.

“It looked like a lot of insulation when they were putting it in during the remodel,” Cammie said. “Makes sense. If you’re renting an apartment, you don’t want to hear your neighbors or have them hear you.”

“Yeah,” Sherry said. “It’s been really nice and quiet.”

“We love it here!” Candice said.

“We do!” Sherry said.

Candice and Sherry headed downstairs after a bit of conversation and celebrating. We called the parents and a few friends (Janet and Lizzie first and foremost). Everyone was thrilled about the ruling. We didn’t get Gene, but that wasn’t a huge surprise. His phone was busy part of the time and just went to their machine others. Most likely he was either talking about it himself or out to dinner.

By the time we’d heard, it felt too late to call Professor Berman and Grandmother. Hopefully, we could talk to them tomorrow.

Once we were off the phone, Cammie got us together.

“Okay!” she said. “We have some updates. On the first house — the one near us — there’s a bit of a bidding war. Well, maybe. There’s another offer, and it’s slightly above ours, but below the seller’s asking price. Before you ask...”

She was looking at me when she said that, but was smiling.

“ ... we will still do well at ten percent above our current bid.”

“So, you’re counter-offering?” Angie asked.

Cammie nodded.

“I just wanted to let you know where things stand. We’ll stick with it for a while.”

Everyone looked like they agreed.

“On the other two, the seller has countered below their original ask but above our bid. We’ll be countering their counter around the midpoint between the two offers.”

“Sounds good,” Jas said.

“We’re still in the hunt, anyway!” Cammie said. “This is good news, really. It’d be nice if people just gave us rental properties, but...”

Everyone chuckled about that. She had a point. It would be nice. Unlikely, but nice.

Thursday, September, 5, 1985

The ruling was front-page news for every major paper in the area. I headed to the library and found it was front page news for the ‘national’ papers (New York Times, Washington Post, and the Wall Street Journal), too.

It took me until the NYT’s coverage to find out one key element. I made photocopies of the article and brought them to lunch.

With Candice and Sherry at lunch, some things had to be left unsaid. Still, there it was in ‘the newspaper of record’: ‘The ten-to-six decision was authored by Judge Curtis Richardson, the most recently seated member of the Fifth Circuit.’

We had set out to make one little change: keep Gene’s dad alive. The ripples from that ‘little change’ just kept getting bigger. There was no question: this was a ripple we very much liked. But it was, from Angie’s and my perspective, the epitome of a ripple.

It might not have been from Jas and Paige’s. Or Cammie or Mel’s. They would have a reasonable argument, too: perhaps Curtis was never going to die in a car wreck here.

Occam’s Razor, though. The simplest explanation was that sending the letter changed something. Something which had become much bigger than we could have foreseen.

It was clear from the Times’ coverage that Curtis had done his best to write a decision for the ages. He fully expected this to reach the Supreme Court and had done his best to knock out any of the reasonable arguments for keeping the ban.

While the article didn’t quote the ruling extensively, it included a few quotes I found fascinating. First was a bit about ‘standing,’ which had been a key issue: ‘This court initially declined to review this case. Yet, upon inspection, the very nature of the appellant argues against appellant’s own position. Surely, if such conduct was abhorrent to the general public, an appellant with clear standing would have taken up the cause.’

He had a point. The original defendant had declined to appeal, as had the attorney general. The actual appellant was a DA with no connection to the case. Unlike the GSS appeal, the attorney general hadn’t even acted to permit the appeal.

Since the backbone of the entire case was that homosexual conduct could be criminalized because people thought it was ‘abhorrent,’ pointing out that elected officials didn’t seem to think voters would reward them for standing up against it was a pretty major point.

The second quote was just as good: ‘Allowing one set of citizens [heterosexuals] the freedom to do something but denying it to another set of citizens [homosexuals] without a compelling state issue justifying such a denial is fundamentally antithetical to equal treatment under the law.’

The shortest quote was one of the best: ‘What prevents a court from denying equal protection under the law to the members of any historically maligned group, simply because of that history and nothing else, if it is permissible in this case?’

The final quote in the article was spectacular, too: ‘No compelling state interest has been shown [... ] in this case. The core of the question thus becomes: does the Constitution permit the extreme violations of privacy required to fairly implement such a law in the absence of such an interest? [... ] Neither [‘historical precedent’ nor ‘implementing morality’] is sufficient to justify systematically denying citizens their privacy, especially when only certain citizens are targeted.’

I very much wanted to read the actual decision, but it likely wouldn’t be available here for some time. A&M had no law school (and wouldn’t, if history held, until somewhere in the 2010s). I had no access to LEXIS, either.

Or ... maybe I did? It would be worth seeing if the library had a subscription that mere undergraduates could use. It wasn’t urgent, though. I could also check with the growing number of attorneys in my life.

Asking Curtis to send a copy by mail would probably be the fastest way to get it, honestly. I wasn’t going to do that, though. Soon enough was soon enough.

When we got home, there were a dozen calls waiting on the answering machine. The tape only held that many, so I had no idea how many we’d missed.

There were only three seconds of the last call before the tape ran out. Fortunately, I recognized Professor Berman’s voice.

Jas, Angie, Paige, Cammie, and I gathered around the speakerphone and called him (with Mel, Candice, and Sherry listening in), but missed him the first time. We called back other friends (many of whom were in GSS) and parents (all of our parents had called), then tried Professor Berman again around six.

This time, we got him.

“I assume you have heard about the Fifth Circuit ruling!” he said, once we’d gotten him.

“We have!” Angie said.

“Ah...” he said, sighing. “This makes me so happy! My student, leading a group of his fellows and making the right ruling for the right reasons, and that decision also doing right by my granddaughter and her wonderful girlfriend. What could be sweeter?”

Angie said, “We all agree, of course! It’s amazing to know the author of such an important ruling!”