Unidentified Speaker: More perfect.

Jad Abumrad: Hey, I'm Jad Abumrad. This is More Perfect. Today, two stories from reporter Katherine Wells. The first has some adult content in it so be warned. If you're listening with kids, you might want to skip this one. Here's Katherine.

Katherine Wells: Maybe we can just start with the night that it started. We can start with the start.

Jad: Yes, so give me the who, what, when, where.

Joseph Quinn: The best way to describe being a patrol officer on the street is you have a front-row seat to the greatest show on earth.

Katherine: September 17th, 1998 on the outskirts of Houston, there's a deputy sheriff named Joseph Quinn.

Joseph: Hadn't been on duty very long at all.

Katherine: He's driving around and he hears this call go out on the radio.

Joseph: I heard a call.

Katherine: Somebody's called in and said there's a man gone crazy with a gun in an apartment. He happens to be driving right by the apartment complex.

Joseph: Pretty familiar with the complex. I knew where the building was.

Katherine: He's like, "Hey, I've got this. I'm right here. I'm going in."

Joseph: I parked and I tried to be as tactical as I could. Listening to see if I hear any sounds of disturbance, walked into the breezeway on high alert, senses heightened, adrenaline's pumping. Out in the middle of the courtyard, there was a gentleman standing out there. Since he saw me he started yelling, "Over here. Over here." I could tell he was upset, he was crying. He said, "He's up there. He's up there." I said, "Up where?"

Katherine: He points up to this apartment on the second floor.

Joseph: I said, "The man with the gun is up there? Is that what you're saying? That apartment right there?" He said, "Yes."

Katherine: A couple other officers arrive and they get in formation.

Joseph: We took our time. Control your breathing to get the adrenaline rush and the blood pressure down to where you don't get tunnel vision. Went up the stairs, the four of us.

Katherine: When they get up to the top of the stairs-

Joseph: Got to the apartment door and the door was ajar. It was open. I listened for a second. I gave them the hand sign that I couldn't detect anything in the apartment so we got ready and I pushed the door open, all the way open. I announced our presence, "The sheriff's department, anyone in the apartment come out where we can see you. Keep your hands in plain sight." I did this two or three times very loudly. Still no response.

Katherine: There's a bedroom in the back of the apartment.

Joseph: There was a door to a back bedroom that was closed.

Katherine: These two officers start walking towards it.

Joseph: The deputy was in front of me. He opened the door, pushed it open, and as soon as he did, he lurched back like he was startled.

Katherine: He goes into the bedroom-

Joseph: Finger's on the trigger, pressures build. If I see a gun and it's pointed at me I'm going to take him out.

Katherine: -but then-

Joseph: It's like, "You got to be kidding me. Really?"

[music]

Jad: What was it? What was it?

Katherine: It was two guys having sex.

Jad: Oh.

Joseph: Something I'll never forget. I was just flabbergasted.

Katherine: Okay. Here's the story. The two guys that were in the apartment were John Lawrence and Tyron Garner. John was an older white guy. He was in his 50s and Tyron was a younger Black guy in his 30s.

Joseph: I come to find out basically the gentleman downstairs-

Katherine: This is the guy who called 911.

Joseph: -was former lover or on-again, off-again lover of one and he was upset that they were engaged in some kind of activity.

Katherine: The guy in the parking lot was the boyfriend of Tyron, and we don't really know why he called 911, but the thought is that maybe he was jealous of whatever was going on in the apartment and he decided he wanted to get them in trouble.

Joseph: It was a lover's triangle kind of thing.

Katherine: The cops come in and John and Tyron have no idea what's going on. They didn't know that the boyfriend had gone and called 911 so they're shocked and Quinn says they start yelling at him.

Joseph: Just combative, belligerent, refusing to comply with anything. We hated gays. We were homophobes. We were jackbooted Nazi thugs.

Katherine: At a certain point, Quinn just decides-

Joseph: If we leave them here and the way they're acting and they're intoxicated we're going to have further calls here. It's not the end if we leave them here.

Katherine: He decides to arrest them.

Jad: Really? On what charge? They're just in their house.

Katherine: That's the question.

Joseph: I've been a patrolman for 15 years and I'm blessed with the ability to have somewhat of what you would call a photographic memory.

Katherine: Meaning he knew the penal code really well so he starts thinking. He starts going through all the possible laws that could apply to this and he lands on this one.

Joseph: I know it pretty well, 2106.

Katherine: Statute 2106.

Joseph: It says that members of the same sex can't engage in sexual conduct.

Katherine: It's a law banning sodomy.

Joseph: Deviant sexual intercourse.

Joseph Lawrence: We were not even treated like civilized citizens.

Katherine: This is John Lawrence from an interview he did with Lambda Legal in 2008. It's one of the few bits of tape that we have of him.

John: It was just all of a sudden, "We're taking you downtown." I wasn't allowed to put clothes on. I was handcuffed and dragged down the stairs.

Katherine: Officer Joe Quinn has a different version of that story.

Joseph: Took them in custody, afforded them the opportunity to get dressed and they refused, so we forced them to put some underwear on. We actually held him down and put underwear on them and escorted them out of the apartment like that. It was a struggle just to get them to put underwear on.

Jad: I'll just jump in for a second. Whatever happened in that room which Katherine we'll go into more in a second, this moment of two guys supposedly having sex and then being charged with sodomy.

Dale Carpenter: It was like a strike of lightning.

Jad: It would begin a process that would profoundly reshape America. What's interesting, and this is one of the first things that you bump into if you were an idiot about the law, which I am, and then you try and make a podcast about the law which I'm trying to do, is that there's often this disconnect like laws are these things that float up of us all, these beautiful abstractions. Yet, if you want to challenge the law you've got to find a person down here in the mud, whose experience perfectly somehow captures what you feel is wrong with the law. You've got to find a perfect plaintiff, but how do you find that person? What happens if they're not so perfect?

These two stories that you are going to hear are about a particular tactic that is sometimes called test case litigation, that I wasn't too aware of before Katherine's reporting. The second story actually touches on a very current case that was just decided a few days ago. It's the case on affirmative action. We'll meet the guy who brought that case, who critics say is basically destroying some of the most iconic civil rights law from the '60s but first, we'll get back to Katherine Wells with the story of a case called Lawrence V. Texas.

Mitchell Katine: Okay. Come on in. I brought out my Lawrence V. Texas box of stuff.

Katherine: I went to Houston and I visited a guy named Mitchell Katine, he's a lawyer there and he showed me the arrest papers. He had the arrest papers for these two guys.

Mitchell: Jay Lawrence criminal officers observed the defendant engaged in deviant sexual conduct, charged with homosexual conduct. It's right there in writing.

Katherine: It really is strange to see those words on a piece of paper. It seems like such an anachronism, but it was not actually-

Mitchell: It's not and this is dated December 17th, 1998.

Katherine: Now in 1998-

Mitchell: I have a few other things here.

Katherine: -Texas wasn't the only state that had this kind of law on the books, at least 13 other states also had an anti-sodomy law.

Mitchell: It's important to note that this law wasn't used very much. People were not arrested for this law.

Dale: Because when would police be present in your home to observe you having sex?

Katherine: This is Dale Carpenter.

Dale: I teach constitutional aw, SMU Law School. Sodomy laws weren't really about stopping anybody from having sex. They were really about ensuring that we could label people criminal.

Mitchell: It was a label that people could point to.

Katherine: So that people who disapproved of homosexuality could say, "Look."

Speaker 12: The defining act of homosexuality, a crime [crosstalk]

Katherine: If it's a crime and you commit the crime-

Mitchell: Well, you're a criminal. It's a criminal statute.

Katherine: -people can say you're a criminal, which then gives the state a legal basis to justify all sorts of housing discrimination, employment discrimination.

Dale: Military in every context, it had an effect.

Katherine: Many people argued that these laws also sent a strong cultural message.

Speaker 13: Oh, it's being called gay-bashing but the most recent example here in Houston is better described as a vicious killing.

Katherine: This was at a time when hate crimes in Houston were surprisingly common.

Speaker 13: Paul Broussard, 27 years old died after being beaten where they nail-studded two-by-four.

Speaker 14: The second senseless killing in the Montrose area in less than three months.

Speaker 15: It was a lot of blood and it was really apparent that he'd been shot.

Katherine: To make a long story short-

Dale: The gay rights movement was very eager to repeal that sodomy law.

Katherine: John and Tyron were arrested on a Thursday night. The next day-

Dale: It so happened that because of the location of John Lawrence's apartment, the case landed in a justice of the peace court.

Katherine: Meaning after Quinn made the arrest, the report was sent to that court for processing. Now, this court mostly deals with traffic. It's mostly a traffic court, but the happens to be this clerk in the court-

Dale: -who was gay and he couldn't believe that somebody had actually been arrested for homosexual conduct in their home.

Katherine: That night. this clerk and his partner go to a bar.

Dale: They start talking to the bartender.

Lane Lewis: I believe it was a Friday night.

Katherine: This is Lane Lewis. He was the bartender.

Lane: It's what I was doing, I was a bartender in 1998.

Katherine: These two guys come in and they tell Lane, "You're not going to believe what happened."

Lane: He said a couple of guys were arrested and charged with sodomy.

Katherine: Lane was like-

Lane: Yes, yes, yes.

Dale: You just can't believe that such a thing happened. It's such an unusual occurrence.

Katherine: They were like, "No, no, it really happened." Lane said, "Send me the report."

Lane: Monday morning, bright and early [fax beeping] I could hear my fax machine go off. I went in there and pulled it off.

Reporter 1: Officers observed the defendant engaged in deviant sexual conduct.

Lane: That's when it hit me, "Oh." It was so clear night and day to me. I immediately knew what I had in my hand.

Jad: Why does he care so much about this?

Katherine: Well, so when he wasn't being a bartender, Lane was a community organizer.

Lane: Particularly around LGBT issues. I was president of the Gay and Lesbian Political Caucus.

Katherine: That's one of the oldest LGBT civil rights groups in the South. He'd been waiting for this moment. How long had you been looking for a case?

Lane: Seven or eight years.

Katherine: Just to lay it out explicitly, why did you need-

Lane: I needed a test case. You can't change a law like that if you don't have a case.

Katherine: People in the Texas legislature had been trying to remove this law from the books for years, according to Dale Carpenter.

Dale: Every time someone would introduce a proposal to repeal the law, it would get snickers and catcalls in the state legislature.

Katherine: It just wasn't really going anywhere. Activists had decided the only way to get this done is to bypass the legislature and go straight to the courts.

Lane: I needed a case. I had to have someone guilty.

Katherine: Lane starts trying to track them down. At this point, the two guys had been released from jail and he eventually gets John on the phone.

Lane: Conversation basically went like this, "Hi, My name is Lane Lewis. I'm a gay activist here in town. You don't know me. That's not important, but I understand you've been arrested. I'm begging you not to plead out."

Katherine: Meaning, "Don't just say you did it and pay the fine."

Lane: I knew I couldn't have him plead out.

Katherine: Because then there'd be nothing Lane could do.

Lane: I said, "I will find you, lawyers. I will raise the money. I will pay for everything. Just don't do anything until you and I have an opportunity to meet."

Katherine: A few weeks later, they all meet at Mitchell Katine's office, and it immediately becomes clear that these guys are an odd couple.

Dale: John Lawrence at that time was about-- I think he was 55 years old.

Katherine: Tall, white, a big guy.

Dale: He worked as a lab technician.

Lane: For a hospital.

Katherine: Tyron Garner was a young, skinny, Black guy, 24 years younger than John.

Dale: No steady job.

Katherine: He bounced around between friends' apartments.

Dale: Just went from place to place and job to job.

Lane: No idea what their connection was. They weren't lovers. Both heavy drinkers, very heavy.

Katherine: Both had criminal records?

Lane: Yes.

Katherine: Tyron had been convicted of assault and drug possession, and John had been convicted in the '60s of murder by automobile.

Lane: Yes, they were not the perfect plaintiffs. They were not the poster boys. These were not pretty twinks.

Katherine: They weren't political?

Lane: Oh, no, not at all. Not at all.

Katherine: In fact, when Lane told John Lawrence-

Lane: I'm a gay activist here in town.

Dale: John Lawrence didn't even know what that was. "I don't know what a gay activist is."

Katherine: Basically, neither of them had any interest, no interest in being a public figure.

Lane: I gave him the whole-

John F. Kennedy: "Ask not what your country can do for you."

Lane: -"Ask not what you can do for your country," speech. Literally, I reminded them of who Harry Hay was.

Harry Hay: I just simply thought, "Well, now it's time for me to organize my people."

Lane: Harry Hay was arguably the founder of the original LGBT movement. You listeners may not remember, but at one time it was illegal for a certain number of gay males and the LGBT community to get together in one location. It was illegal. You couldn't do it.

Harry: I dreamt even then of the idea that there would be networks of sanctuaries and places where we could come and out of which we would be able to move and organize and change things across the country.

Lane: I told him a little bit about that history and how far we'd come and how far we had to go, and that they had an opportunity to change that. I told him, I said, "I'll be able to protect you for maybe the first year or two but there's going to come a time where it will no longer be about you, it'll be about something much, much bigger." They agreed. Tyron's attitude was, "Okay, what do you need me to do?" John was much more indignant.

John: I was pissed. They picked the wrong person to pull this on. It was a ridiculous law, but Texas loves to keep some antiquated things around.

Lane: He was mad, he was angry.

Katherine: Here's where the story gets complicated. Because at one point, according to Lane Lewis, they were having this conversation and John was ranting about how he'd been treated. He said, "You know what the worst part is?"

Lane: "We weren't even in fact [unintelligible 00:15:12]. We weren't dah, dah, dah." He said that they were not having sex.

Jad: Wait, what?

Lane: That they were not having sex. They were sitting in their underwear on the couch watching the late-night news.

Katherine: They say they were sitting there doing nothing. The cops just burst in and started pushing them around and that they were never even having sex.

Jad: Wait, but isn't this whole case about them having sex?

Katherine: Yes.

Jad: You're saying the thing that this case is supposed to be about might not be true?

Katherine: Right.

Dale: I interviewed three of the four police officers.

Katherine: Dale carpenter says, when he talked to the police officers, he did find that their stories were all over the place. One guy said it was anal sex he saw, one guy later said he thought it might've been oral.

Dale: The other two officers said they never saw anything.

Katherine: Dale says he believes John's story.

Dale: There, probably, was actually no sex.

Katherine: He thinks what might've happened is that the cops walked in and saw some gay art on the wall, and some gay magazines lying around.

Dale: I have a feeling that really set off the officers and they said, "Well, we know they're homosexuals. They've probably engaged in homosexual conduct at some point, and that's illegal in Texas."

Joseph: No. There was no doubt about it. I have no reason to lie.

Lane: Quinn to this day, still insists that he walked in on them and copulating.

Katherine: He says he saw what he saw and he just did his job.

Joseph: If you want to be homosexual, and that's the way you want to leave your lifestyle, that's fine. I don't agree with your lifestyle, but that's my opinion. That's what it is. It's an opinion.

Katherine: There's no way to know what actually happened, obviously, but in a way, it doesn't matter because when John said that to Lane that they weren't even having sex-

Lane: I said, "John, don't ever say that again. Don't ever say that to anybody again because we couldn't have people know that, we couldn't have people find that out."

Jad: Wait, they're going to go forward to this?

Katherine: Yes.

Lane: We were scared that the case would get screwed up at that point and potentially the DA dropping the charges.

Katherine: Basically, if Joe Quinn was lying on that police report, you had to preserve the lie?

John: Correct.

Lane: Correct.

Jad: Dumb question. You can just do that? You can just preserve a lie to keep a case going? You say that's okay?

Lane: Keep in mind that it wasn't our job to prove or disprove the lie.

Katherine: To Lane, the thing that mattered was not what did or didn't happen that night. The thing that mattered was what the arrest report said.

Jad: If what the arrest report said potentially didn't happen, shouldn't that matter?

Dale: No. Our legal system is not designed to bring out the truth. This is a misconception. It does not bring out the truth.

Katherine: That's Dale carpenter again.

Dale: It is people who play their roles in pursuing whatever they think their best interests are. That's exactly what happened.

[music]

Lane: For the first few years, my job was to keep the boys out of the news.

Katherine: Then why was that?

Lane: They had a tendency to drink and get rowdy and fight. They liked to go to city hotels, rent rooms, and get really, really high, drunk, whatever. Inevitably they would start fighting with each other. What I would do is I knew the different places they stayed.

Katherine: He says he would go to these city hotels and talk to the clerks.

Lane: Give him a business card, tell him, "If these boys come and check in, they cause problems, call me first." On more than one occasion, it happened. I'd get a call at two o'clock in the morning, "You're your guys are here. They're causing trouble. I'm going to have to call the cops." I would jump out of bed, put on my clothes. They're already on the front page of the Houston Chronicle, we could not have our defendants doing a perp walk for drugs and alcohol.

I would drive down there and I would figure out which one was causing the most problems, put them in my car and I would drive them somewhere else. I would separate them out. That happened more than once.

Katherine: Lane said he had this fear that John and Tyron would start talking to the media and let something slip about their version of the story so he gave them these little cards.

Lane: Kept it in their wallet and a small little sentence basically said, "Thank you for contacting me. Please refer to Lane Lewis," it had my phone number and my email. I said, "Anytime the media contacts you don't think about what you say because that's where you get screwed up, when you start thinking about what you want to say to the media. Pull this out of your wallet, read it and hang up."

Katherine: Even so, there were these close calls, as the case wound its way through the court system. Mitchell Katine told me about this one time, there was this press conference.

Mitchell: We came outside to the normal media group that was out there wanting quotes and talk to us. They didn't want to hear from the lawyers, they wanted to hear from the clients.

Katherine: It was like, "All right, just this once."

Mitchell: Tyron gets up to the mic. I think a reporter asked him, "How do you feel about this?" He said, "We didn't do anything wrong." He just yelled that out in an angry way, "We didn't do anything wrong".

Katherine: Mitchell pulled him back and was like-

Mitchell: Uh-oh, that's enough. That's enough.

Katherine: Next day-

Mitchell: "We didn't anything wrong," that was the quote on the headlines of the morning's paper the next day, and certainly I knew what he meant.

Katherine: That they weren't having sex.

Mitchell: It could also be interpreted as homosexual conduct is nothing wrong.

Katherine: He says luckily that's how people took it.

[music]

Mitchell: It was very nerve-wracking.

Katherine: This went on for years. This was years?

Mitchell: Yes. A couple of years.

Katherine: Here's how it went down. They started at this justice of the peace court. They were sentenced to a fine of $125. They appealed, then the case gets kicked up one level to the Harris County Criminal Court. They're fined again, they appeal it again.

Dale: Then it went to another level.

Katherine: To the 14th Court of Appeals. One more level.

Dale: Ultimately, the Texas Criminal Court of Appeals which is the highest court in Texas for criminal appeals refused even to hear the case, so the only next step is the Supreme Court.

Chief Justice: We'll hear argument next to number 102 John Geddes Lawrence and Tyron Garner versus Texas.

Katherine: March 26, 2003, almost five years after the arrest the case lands at the Supreme Court. By the time it gets up there-

Chief Justice: Mr. Smith.

Mr. Smith: Mr. Chief justice, may I please record?

Katherine: -the story is not dwelled upon at all. They didn't say these guys weren't in a relationship. They didn't say if these guys were having sex, one of them was cheating on his partner. Seems like they might have not been having sex anyway. They didn't say any of those things. They said-

Mr. Smith: There are gay families that family relationships are established that there are hundreds of thousands of people.

Katherine: -that this is about families and relationships, how people in loving relationships have the right to express themselves in whatever they want. It's none of the state's business.

Mr. Smith: The opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context.

Katherine: Basically people in relationships have the right to have sex with each other regardless of their gender.

Mr. Smith: -should protect it for everyone that this is a fundamental matter of American values.

Jad: Wow. It's like watching something float up from the mucky-like realm of real life and then it just gets prettier as it floats upwards.

Katherine: It was such a pretty story that people were suspicious of it. People were asking, "How did this arrest even happen?"

Mitchell: "This was the setup. You all set this up." That was their big battle cry.

Katherine: Mitchell Katine says he heard this over and over again.

Mitchell: It wasn't a setup but I always wanted to say, "What if it was? Does that make it any less of a case? Who cares?"

Mr. Smith: Unless the court has further questions, thank you very much.

Chief Justice: Thank you Mr. Smith the case is submitted.

Court Official: The honorable court is now adjourned until Monday next at 10 o'clock.

Katherine: Three months later-

Chief Justice: The opinion of the court number 02 102 Lawrence against Texas will be announced by Justice Kennedy.

Dale: Justice Kennedy begins reading a summary of his opinion.

Justice Kennedy: The question before the court is the validity of the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

Dale: Everybody's waiting for the outcome.

Justice Kennedy: In Houston Texas, police officers [crosstalk]

Katherine: For context, it wasn't totally clear how this case was going to come out because 17 years earlier there had been a case called Bowers v. Hardwick. Then they had ruled that sodomy laws were fine.

Attorney: I would suggest to the court that there is no constitutional warrant to conclude that there should be a fundamental right to engage in homosexual sodomy.

Katherine: The Supreme Court almost never overrules things that are recent.

Justice Kennedy: Bowers v. Hardwick has some factual similarities to this case.

Katherine: Justice Kennedy starts talking about all the similarities between the cases.

Justice Kennedy: -police officers were dispatched to a private residence.

Dale: The tension starts building.

Justice Kennedy: The officers observed Lawrence and another man, Tyron Garner engaging in a sexual way.

Dale: Then finally he got to the moment where he said-

Justice Kennedy: Bowers was not correct when it was decided and it's not correct today.

Dale: At the point Justice Kennedy said that there were people sobbing in the Supreme Court.

Justice Kennedy: Bowers v. Hardwick should be and now is overruled.

[music]

Reporter 2: At rallies across the nation gay rights advocates celebrated their legal victory, a ruling so broad it surprised even many of them. The court ruled in favor of two Texas men who challenged the state law that made homosexual sex a crime.

Reporter 3: The ruling overturns a Texas law that allowed police to arrest gays for having sex. 12 other states have similar laws including a law [crosstalk]

Katherine: That morning, John Lawrence was at home in his apartment in Houston watching the news.

John: I'm laying in bed trying to go back and get my 40 [unintelligible 00:25:00] and all of a sudden it says, "Has ruled the law unconstitutional." [crying] I came out of bed quite happy.

Katherine: Obviously, not everybody was happy about it.

Justice Scalia: Let me be clear that I have nothing against homosexuals or any other group promoting their agenda through normal democratic means.

Katherine: Justice Scalia said basically, "If you want this to happen, that's fine, but you're going about it the wrong way. The court is not the place where this decision should be made. You need to go talk to your fellow citizens and convince them that this law needs to change. Coming to us and asking us to bypass what your fellow citizens seem to want, that is not how democracy should work."

Justice Scalia: Persuading one's fellow citizens is one thing and imposing one's views in absence of democratic majority will is something else.

Katherine: He sees this as a small minority imposing their views on everybody else, and then he said he was worried about something else.

Justice Scalia: Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.

Katherine: That this decision would open the floodgates and that it would only be a matter of time before the court was being asked to decide on gay marriage.

Justice Kennedy: The second relevant principle-

Katherine: He was right. When Kennedy read the marriage decision in 2015-

Justice Kennedy: -in Lawrence v. Texas-

Katherine: -he talked about Lawrence.

Justice Kennedy: -the court held that private intimacy of same-sex couples cannot be declared a crime, yet it does not follow that freedom stops there. Outlaw to outcast may be a step forward but it does not achieve the full promise of liberty.

Katherine: What happened to Garner and Lawrence? John Lawrence and Tyron Garner didn't live to see this. Tyron died in 2006 from meningitis.

Dale: No job, had no money.

Katherine: He was 39.

Dale: His family was very poor and they didn't have the money to bury him. They didn't even have the money to reclaim his body from the county morgue.

Katherine: As for John Lawrence, he died in 2011 at 68 from heart problems.

Dale: We didn't even find out about it until a month after he was dead. This hero of the gay rights movement was unknown and unmourned at his passing.

[music]

Katherine: What does that say about the practice of bringing things to the supreme court that the two people whose story this case revolves around could fade into the background afterwards?

Dale: One is tempted to be very cynical in some ways because it means that these people were useful as long as they were useful and after that, they could be forgotten.

Jad: I have to say I actually had that reaction a little bit. This is a story of social progress but there's something a little funny at the center of it for me. As we were playing this for our legal editor, Elie Mystal, we talked about this a bit.

Elie Mystal: I think that in a lot of ways, our legal system devolves into it and justifies the means kind of justice. We care about the process so much. Look, the process is extremely important.

Jad: Elie, isn't this just weird to you? This is a dumb law, a dumb, dumb, dumb, dumb law. Shouldn't there be an avenue to say, "This is a dumb law. Let's take it away."? Why do you have to find some people who didn't have sex, they say, pretend that they have sex then march them up all the way through the court system and then forget about them? It just seems weird to me. It seems like an empty theater. Why do we have to do it that way?

Elie: Because if you wanted to put a ballot initiative up in 2003 in Texas saying, "Is gay sex okay?" it would fail. It would fail in 2003 in Texas. It would probably fail in 2016 in Texas. It will probably fail in 2032 in Texas. That's why. That's why. The majority isn't always right. You basically take the democratic hit. Again, this goes back right to the founding of our country like, "When are you going to let popular will run wild? When are you going to constrain it, not just restrain it, constrain it? When are you going to just stop it?" Lawrence v. Texas is an example of, "We're just going to stop it." It was the right call.

[music]

Katherine: After this Supreme Court decision to Texas immediately go and repeal the law?

Dale: No, actually the law is still on the books in Texas. No, the Texas legislature like other legislatures around the country refuses to repeal the law. It stays there remnant of a dark almost forgotten past.

Jad: Keep in mind they can't enforce the law now that it's unconstitutional but they refuse to take it off. Coming up, a very deep dive into the guy behind one of the most controversial cases this term, a case that just got decided late last week. This is More Perfect.

Supreme Court Marshal: The Honorable, the Chief Justice, and the associate justices of the Supreme Court of the United States. Oyez. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention for the Court is now sitting. Oyez. God save the United States and this Honorable Court.

Jad: This More Perfect. I'm Jad Abumrad. If Supreme Court cases can sometimes feel like plays where the activists and lawyers are like the directors pulling the strings and the people in the center of the case, the plaintiffs are just like these imperfect actors who've been cast and the script's already been written for them, that dynamic was definitely in effect this term, in fact just last week.

Court Official 2: We have had a decision just handed down in what was billed as the landmark affirmative action case of this term.

?Speaker: Josh, this is a decision that will impact college admissions nationwide.

Jad: The case Fisher v. the University of Texas centered around the following questions.

?Speaker Should universities be able to use racial preferences in college admissions?

Jad: Now the University of Texas has this policy where the top 10% of every high school class automatically get in but for everybody else they will consider factors like race. The question was, is that okay? A couple of days ago the court decided barely that yes it is okay.

Reporter 4: The Supreme Court has upheld the affirmative action program at the University of Texas.

Reporter 5: Affirmative action and higher education is constitutional.

Jad: Now the case was brought by a young white woman named Abigail Fisher.

Reporter 5: Abigail Fisher believed her race may have heard her chances to attend the University of Texas.

Abigail Fisher: There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT and the only other difference between us was the color of our skin.

Jad: She was arguing that affirmative action discriminates against her as a white person. Now, what you saw in the wake of that decision and even before especially online was this just torrent of hate directed squarely at her.

?Speaker: I'm trying to hold my tongue but I'm about to tell Abby to have a seat.

?Speaker: I can't get into a good college. Black people have it better.

?Speaker: Bitch, if you don't take your little ass on somewhere.

?Speaker: Maybe if your grades didn't suck, you dumb ass, maybe you would've gotten into a good college.

?Speaker: Becky with the bad grades, really happy you and your racist lawyer got shot down.

Jad: It's all been pointed right at Abby Fisher which you could argue honestly isn't fair because this case may have very little to do with Abby Fisher. If you look at the press conferences-

Abigail: I don't believe that students should be treated differently based on their race.

Jad: -Abby Fisher is the one at the podium but behind her far in the background you'll see this guy. He's there in every single press conference back at the edge of the frame. Not too many people know about him. His name is Edward Blum. He's the one who actually brought the case. When it comes to this case and so many others he is the architect.

[sound effect]

He's brought dozens of lawsuits not just this one, and he seems to be a maestro of getting cases to the Supreme Court that challenge civil rights law. Critics paint him as this one-man wrecking crew for civil rights. He's almost single-handedly rolling back decades of civil rights law. When it comes to affirmative action he says he's not done. Just to make a long story short we wanted to meet him, figure out how he does it.

Katherine: I went to Tallahassee.

Jad: Reporter Katherine Wells takes it from here.

Katherine: That's where he lives or he winters in Tallahassee. Oh, man.

?Speaker: Golden retriever [unintelligible 00:34:47]

Jad: You walk in, what initially struck you?

Katherine: His golden retriever is what initially struck me literally physically. Nice to meet you.

Edward Blum: Nice meeting you.

Katherine: Thanks for having me.

?Speaker: Of course.

Katherine: I don't know what I was expecting, but when you hear about these cases, you know, critics are really-- People are mad about these cases.

Unidentified Speaker: It is deeply disturbing, truly outrageous. It's a betrayal all of the American people.

Katherine: I go to meet him and-

Edward: Your flight from Austin to Dallas, to Tallahassee, uneventful and on time and good? Good.

Katherine: -he's like a totally nice guy. A regular guy.

Jad: What does he look like?

Katherine: Like a dad.

Edward: There is something in me that just loves tradition and custom.

Katherine: He loves listening to the Great American Songbook.

[song playing]

Edward: Frank Sinatra

[song playing]

and Ella Fitzgerald. I love art and museums, independent films, golf.

Jad: What's his story? What's his backstory?

Katherine: Well, he's 64.

Edward: I was born in a small town in Michigan. My dad owned a shoe store there. My mom worked with him in the shoe store.

Katherine: What had been your kind of political leanings up to this point?

Edward: Well, I'm the first Republican my mother ever met. I hate to use the word typical, but it really was a typical liberal Jewish household. My mother and father were Franklin Roosevelt, Harry Truman Democrats, always voted Democrat.

Katherine: He said, he was that way too all the way through college.

Edward: The University of Texas.

Katherine: Grad school.

Edward: State University of New York, where I spent a year studying of all things, African literature.

Katherine: He says, somewhere along the way, his political leanings started to shift.

Edward: I spent a summer in Israel living on a kibbutz.

Katherine: He says, he came out of that experience a little less liberal than he was before.

[music]

He got married. Then in the early '80s, he's living in Houston, working as a stock broker.

Edward: We met our neighbors.

Katherine: This particular couple.

Edward: They were New Yorkers who had moved to Houston, both grew up as liberals and-

Katherine: The guy.

Edward: -he opened my eyes to the world of the Neo-cons.

Katherine: The guy introduced him to these magazines.

Edward: Weekly Standard, The National Review, Commentary Magazine.

Katherine: Conservative magazines. This was around the time that the neo-con movement was really hitting its stride. You had all these New York liberals defecting, is what he says.

Edward: Thousands of individuals who grew up in the 1960s that started to question the wisdom of these liberal policies.

Katherine: He said, slowly-

Edward: Slowly.

Katherine: -over time-

Edward: Very gradually.

Katherine: -he became one of those people. In any case, fast forward a little bit, he's living in Houston.

Edward: Kind of a garden variety existence.

Katherine: Something happens that sends him on this entirely new path. Basically, he and his wife moved to a new neighborhood. They moved from the suburbs into the downtown area, more urban.

Edward: In 1990, when we went to vote for the first time in our new neighborhood, I realized that the Republican Party had not fielded a candidate to oppose the Democrat incumbent running for Congress. This is a district that has almost 600,000 people and you don't have a choice? You've only got one person running.

Katherine: Blum decided to run himself.

Edward: I lost. I know that was no great surprise to anyone.

Katherine: He actually lost by 32 points.

Edward: But-

Katherine: Along the way-

Edward: -something really unusual happened.

Katherine: -during that campaign, he and his wife, Lark, they decided they were going to go meet voters in their district. They got a giant printout of all of the addresses in the 18th Congressional District.

Edward: What was then called a walking list.

Katherine: They just started going door to door.

Edward: Meeting people, handing out literature.

Katherine: They'd walk down, say, Oak Street.

Edward: I would take the even side of Oak Street, and my wife would take the odd-numbered side of Oak Street, and we would start to walk.

Katherine: He says, very quickly, they realized that the district's shape was funny. Some houses on one side of the street would be in the district and then houses on the other side wouldn't. Sometimes the district would sneak down a highway, catch an apartment complex, come back.

Lark: It just didn't make sense. This is Lark Blum, wife of Edward Blum. It was peculiar because we had maps that we had to follow. It was very odd the way some streets were in the district, and some weren't. Took a while for it all to really sink in as to how this could happen.

Edward: After I guess about a week of this, we realized that neighbors had been separated almost house by house because of their race.

Katherine: He comes to believe that the reason this was done was for the explicit purpose to create a majority African-American district.

[music]

This is an untrue.

Edward: This act flows from a clear and simple wrong.

Katherine: Part of the reason this was done was the Voting Rights Act of 1965.

Unidentified Speaker: Millions of Americans are denied the right to vote because of their color.

Katherine: This act was a giant step forward in civil rights. One of the primary things it did is, eliminate barriers to voting like poll taxes and literacy tests, all these strategies that had been used to keep minorities from voting. Then this other thing it did, in a roundabout way through a series of interpretations is, it encouraged the creation of districts where the majority of voters were minorities. That's because one of the strategies that had been used previously to dilute the minority vote, was to take minority communities and they called it cracking, they split them apart into many different districts so that they were never in the majority enough to elect a representative. The Voting Rights Act tried to correct that. The 18th congressional district was one of these majority minority districts.

Edward: The district was drawn by the Texas Legislature to have a slight African-American majority, I think about 51% African-American.

Katherine: This was the problem, according to Blum. The way they got to that African-American majority, was by creating this district that zigzagged all over the city and cut through neighborhoods.

Edward: I could not understand. People lived close together, they sent their kids to these neighborhood schools, they shopped in the neighborhood shopping centers, they were worried about neighborhood issues. To break these neighborhoods apart by race seemed so wrong to me.

Katherine: In his mind, this law was actually not limiting discrimination but actually perpetuating it.

Edward: Well, yes.

Katherine: I don't know what the average person upon realizing this would have done.

Edward: I decided to file a lawsuit.

[music]

Katherine: He decided to sue the state of Texas.

Edward: Called a few friends who lived in the 18th District.

Katherine: And a few other districts in Texas.

Edward: An African-American, Hispanic, and an Asian, kept looking and looking and looking until I found a lawyer that I could afford.

Katherine: $7,000 a month.

Edward: We filed a lawsuit challenging the constitutionality of Texas's redistricting plan.

Katherine: The basic charge was, yes, the Voting Rights Act was good in its day, but now it was being used as this excuse to segregate people into racially polarized districts.

Edward: It worked its way through the lower courts and to my shock and surprise, in 1995-

Unidentified Speaker: We'll hear argument now number 94805, George W. Bush versus Al Vera.

Edward: The Supreme Court took it up.

Katherine: You went to oral argument?

Edward: Yes, we all did.

Unidentified Speaker: Mr. Chief Justice, and may it please the Court.

Edward: There we all are, our opponents stepped to the lectern and-

Unidentified Speaker: At issue this direct appeal, is the constitutionality of three congressional districts-

Edward: -they make their arguments.

Unidentified Speaker: -that the court below erroneously rule were racially gerrymandered.

Katherine: Texas basically said, "We have to put people together by race."

Unidentified Speaker: The Texas Legislature has the obligation to satisfy Federal requirements, and the Voting Rights Act is a Federal requirement.

Katherine: Remember the Voting Rights Act? We're trying to make sure that there are enough minorities in this district so that they have a chance to elect a representative.

Edward: And/or advocate.

Unidentified Speaker: Mr [unintelligible 00:44:02], we'll hear from you.

Edward: Made his arguments.

Unidentified Speaker: We go back to the point that was just being made.

Katherine: Blum's lawyer basically said, "Look at the map. The map is bizarre, and the only reason it could have gotten this way is, because you're only thinking about race, only race. Think about it. That seems messed up. Isn't that messed up?"

Unidentified Speaker: It doesn't matter what your ultimate goal is. You cannot use certain forbidden tools. Race is forbidden by the 14th amendment to be used as a tool.

Unidentified Speaker: In his example, the people of St. Mary's--

Edward: That was a very tense situation.

Unidentified Speaker: I'm not asking about this situation. Do you know any other situation in the law in which we allow race to be used as a surrogate, it can be unconstitutional, but to use it as a more [crosstalk] races, how is this done? I got to tell you [unintelligible 00:44:47].

Unidentified Speaker: Counsel, if you can see that or did you say it would require strict scrutiny?

Unidentified Speaker: You did say that, didn't you?

Unidentified Speaker: Let me explain.

Unidentified Speaker: Did you say that or not? Let me find out, did you say that or not?

Katherine: In the end, the Supreme court gives out this very hairsplitting decision, that I think gets at this deeper question that in our society and in our discourse we just haven't figured out how to talk about in a way. It basically said this, look, if you're defining race just as the color of someone's skin, the government cannot use that in any way, that's against the constitution. On the other hand, if you take this wider view and you look at race in the context of history, social context, then how can the government address discrimination without taking race into account? They have to. So it's this difficult balance.

You can't look at race but you have to look at race. The Supreme court says to Texas, look, all you're doing in this case is sorting people based on how they're labeled on a census. You're not looking at that wider context. You're not looking at, if these communities live next to each other. If they share common interests. You're just sorting them based on race alone and that's not good enough. You can't do that.

Edward: When the opinion came down, the Supreme Court ruled in our favor five to four. That was quite a day. The day that we won that lawsuit I was

[song playing]

hooked forever.

Katherine: After that, Edward Blum decided that this would be his thing.

Edward: It became a passion.

Katherine: He would use the courts to try to strike down every race-based policy he could.

Edward: The legal team was taken on the road. I recruited plaintiffs in New York, Virginia, South Carolina, to challenge congressional district plans and we won in each of those states.

Katherine: He helped sue school districts in Florida and Texas.

Edward: The use of racial quotas in K through 12 magnet schools.

Katherine: He went after affirmative action in Houston City contracting.

Unidentified Speaker: Today, Houston could become the first city to kill affirmative action.

Katherine: That one was actually a ballot initiative and it failed.

Edward: I've been the architect of over two dozen lawsuits.

Katherine: Six of which made it to the Supreme court including in 2013.

Unidentified Speaker: In a five to four vote. Five to four, very divided court. The Supreme court today struck down a key part of the Voting Rights Act of 1965.

Unidentified Speaker: The Supreme Court today struck down a very important part of the Voting Rights Act.

Unidentified Speaker: That key 1965 landmark law. It's considered one of the most important pieces of civil rights legislation ever passed.

Katherine: Shelby County versus Holder. This decision gutted the Voting Rights Act. Specifically, there was this part of it that said, states and counties with a history of discrimination, have to check with the federal government first before they go about changing their voting laws. Basically, the federal government was saying, look, you've been up to all this stuff where, now we're watching you. The Supreme Court said, times have changed. That list was made a long time ago and it's outdated.

Edward: This decision restores an important constitutional order to our system of government.

Katherine: This was Blum's biggest victory.

Unidentified Speaker: When Shelby County came down, I burst into tears. I think a lot of people burst into tears when that came down.

Edward: I understand it.

Unidentified Speaker: It is deeply disturbing.

Unidentified Speaker: I am deeply disappointed with the court's decision in this matter.

Unidentified Speaker: This decision is a betrayal of the American people.

Unidentified Speaker: It is a game changer.

Unidentified Speaker: During the civil rights movement, people died for the precious right to vote.

Katherine: This is Congresswoman Sheila Jackson Lee of Houston Texas.

Sheila: I would like to have the Supreme Court justices go back in time. Go back in time and march with those who marched after bloody Sunday from Selma to Montgomery. Ed Blum has a right to his opinion. It doesn't mean that it has to be the opinion of the United States.

Edward: I understand that people were gravely upset. I also know that there were people who were gravely relieved and gravely gratified.

Sheila: I think what gets a lot of people is that, you look at these civil rights videos, you see tens of thousands, 40,000 people in the streets marching. You hold that and if you make a split screen in your mind, hold that, tens of thousands of people on one side, on the other side, you, one guy, it does make you ask basic questions about democracy.

Edward: That's a false paradigm. That may be your split screen but that's really not the reality of all of this. Look, in 1964 1965, America was held hostage by the legacies of slavery and the chokehold of Jim Crow. Fast forward to 2006, the re-authorization of the Voting Rights Act. The chokehold had gone away. African-Americans in the Deep South registered to vote in numbers that often exceeded whites. Participated in elections in numbers that exceeded whites. In terms of electoral opportunities, we have come 180 degrees from 1965. [crosstalk]

Sheila: We turn those degrees because of the law which you helped overturn. We don't know to what degree that is the psychology of America changing, or the fact that we had a law that kept people in line. Now that law is gone, and now we see voter ID laws coming back into play, which I think any sane person would admit is a blatant attempt to disenfranchise people. It feels a little bit strange to-- I completely agree with you, things have gotten better. At the same time, I think, that was because of the law that's now gone.

Edward: Look, laws change, laws evolve, and at some point they need to come to an end.

[music]

Katherine: Just to jump back in.

Edward: Yes, please.

Katherine: Something we haven't actually talked about yet is, our original question. How does this actually happen? How does it work? How is one person able to be so effective?

Edward: To do this work, you need a computer, a printer, a cell phone. That's really about it.

Jad: Wait, who pays for the lawyer fees?

Katherine: Who do you go to?

Edward: There are individuals that know of my work and there are foundations. [crosstalk]

Katherine: He's a 501(c)(3) like the NAACP and Lambda Legal that funded the Lawrence versus Texas case. If you're a 501(c)(3) public charity, as he is, you don't have to reveal your donors to the public. We do know a couple of his donors though, and they're wealthy, very conservative foundations. In the end what he does is, just maybe a more strategic or sophisticated version of what Lynn Lewis did in the first story. In this case that he just lost last week, he knew he wanted to challenge affirmative action, so the first thing he did was do a casting call.

Unidentified Speaker: He set out to find the perfect white student.

Katherine: He set up a website.

Unidentified Speaker: Called utnotfair.org.

Katherine: He made a recruiting video.

Edward: It's time for UT to stop using race as a factor in the admissions policy.

Katherine: Pretty budget, it's just him looking at the camera in front of a poster that says, "UT Not Fair."

Edward: I encourage all high school students who have been rejected from UT, to visit at utnotfair.org. Tell us your story. [crosstalk]

Katherine: Then he started talking to the people who responded.

Edward: I think I ended up with about 175 responses. Of those, about 100 were viable.

Jad: Were the 75 your threw out just flat-out racist?

Edward: Yes. Just didn't think they would be sympathetic.

Katherine: He whittled the 100 down to 7 that he thought would be sympathetic.

Edward: Of those seven, there were one or two that did not really want to go forward.

Jad: Like, "I don't want the attention?"

Edward: They were fearful.

Katherine: Of the backlash. Anyway, to make a long story short, he ended up finding Abby Fisher because a friend of his called and said, "Hey, my daughter just got rejected from UT. I heard you were looking."

Abby: I think I'm a very introverted person, so I feel like sometimes there's a lot of pressure. In the end it's totally worth it. To be able to have a voice in this and to know that my voice is making a difference is really rewarding.

Katherine: She seemed like the perfect plaintiff. Strawberry blonde hair. She's petite. She's shy in front of the camera in a good way but last week they lost. We talked to him before all this happened, so we weren't able to get a reaction from him. He did tell an Austin newspaper that the night after the decision came down, he had three glasses of wine. He took an Ambien and he thought about these particular lyrics in a Billy Joel song.

Singer: Lost a lot of fights, but it taught me how to lose, okay. Oh oh.

Katherine: The song’s called Keeping the Faith.

Edward: I'm a long distance runner. If there's something just emblematic about my personality, I run long distances.

Katherine: He says he's definitely not done. He's actually already has two more cases against affirmative action in the works.

Edward: I have retained counsel to litigate Harvard's admissions policies and University of North Carolina's admissions policies.

Jad: I'm sorry. It just doesn't strike anyone-- Forget the politics, whether you're on Blum side or not, this is just the tactic, doesn't strike anyone, it's like fishy?

Elie: I resist giving Ed Blum that much credit.

Jad: That's Elie Mystal again.

Elie: I would say, that fundamentally he's just implementing a strategy that was perfected by the people who now ironically seeks to disenfranchise. This is Civil Rights Movement 101. He's got laws that he doesn't like, that he knows he can't overturn through an election. Remember this, Blum's a failed congressional candidate. He had that lust for political power. He couldn't get it through the electoral system but he found this other way to do it. This is exactly what the Civil Rights Movement did.

Katherine: To me, this is one of the most fascinating things about this story. If we go back, do you remember this case, there's a famous case called Plessy versus Ferguson?

Jad: Not really.

Susan Carle: Plessy versus Ferguson I think is a good example. This is Susan Carle, law professor at American University Washington College of Law.

Katherine: Plessy versus Ferguson 1892.

Susan: That was a case where the state of Louisiana had adopted a new Separate Cars Law which said that, people of color and white people could not ride in the same train cars.

Katherine: If you heard this story, this is how it goes.

Susan: Somebody named Homer Plessy.

Katherine: A Black man sits down in a white car.

Susan: He is arrested.

Katherine: He decides to sue and his case goes all the way to the Supreme court. Now, the thing about that case is that it was a total setup.

Jad: What do you mean?

Katherine: If we go back, when Louisiana passed that law requiring separate cars, early civil rights groups were obviously horrified by this, but the railroad companies were actually mad about this too.

Susan: They thought it would be much more expensive to run the trains if they had to have add additional trains, so they have white cars and cars of color.

Katherine: Civil rights activists.

Susan: And the railroad companies, they recruited somebody named Homer Plessy who was 7/8 white.

Katherine: 1/8 African-American. They sent him to go sit in a white car on a train.

Susan: He got into a first-class white people's car, and they sent somebody to go arrest him.

Katherine: Like they got a off-duty police officer or something?

Susan: They actually hired a detective. You could do that at the time, that you can hire a private detective to make an arrest. They hired that person too.

Katherine: Plessy gets onto the train. The conductor comes by and Plessy was like, "Just thought I should let you know, I'm actually 1/8 Black." The conductor says, "Well, in that case, you're going to need to be on the other car in this train." Homer Plessy says, "I'm good actually. I'm going to be staying right here." The conductor says, "No, really you have to move". Homer Plessy says, "No, really not going to". Things get heated and eventually this detective that they've hired comes in and arrest him.

Susan: They brought a lawsuit.

Jad: That's amazing. The whole thing is cooked.

Susan: Starting with the arrest, to challenge the separate cars law and they were able to get it up to the Supreme Court. They were hoping that they would be able to establish that the idea of separating races was unconstitutional. Unfortunately, they miscalculated.

Katherine: The court ruled that the law was constitutional.

Susan: What they got instead was separate but equal.

Katherine: Totally backfired. It was this early example of this other way. If you can find a plaintiff or create a plaintiff, you might be able to bypass the legislature and go to the Supreme court instead. The NAACP later picked up on this.

Susan: They were the true geniuses. They perfected it and they perfected it under circumstances where victories were highly unlikely.

Katherine: For example, in the early 1900s, they do things like send a Black guy and a white guy all over New York City to segregated theaters.

Susan: See if one of them was prevented from being seated.

Katherine: If they were?

Susan: They would sue those theaters and won victories that way.

Katherine: Then there was this other law in Louisville Kentucky that said--

Susan: Nobody could buy a house or live on a block in which white people lived, if they were African-American.

Katherine: They recruited a white guy to sell a house to a Black guy and then they had the Black guy refused to take the house. The white guy could say--

Susan: "You said, you would buy the house but now you're reneging on it". The African-American said, "I'm not buying the house because I can't live there".

Katherine: White guy sues the Black guy.

Susan: Again it was a manufactured case. That was one of the NAACP's first victories. That's the case where Justice Holmes said in a dissent that he ended up not publishing, "Hey, wait a minute, this isn't even a real case." At the time, anything that involves manufacturing a case or fomenting litigation, all of those things were illegal.

Katherine: Not just unethical, but actually illegal.

Susan: Yes. Criminally illegal.

Katherine: It was seen as something like how we see ambulance chasing today.

Susan: The lawyers for the NAACP were very aware of the statutes.

Katherine: This came to a head in the 1950s. The NAACP wanted to get the court to end segregated schools. Basically, they wanted to overturn Plessy versus Ferguson, and the way they were doing this they needed a plaintiff. The way they were looking for plaintiffs is going to meetings with parents, and quietly, subtly, trying to ask parents if they wanted to be the face of these cases.

Now, Virginia knew that they were doing this, and they tightened up these regulations that said, “You can't drum up litigation," to try to stop them from doing this. The NAACP sued, and they took this issue all the way to the Supreme Court.

Unidentified Speaker: Test litigation is essential because no matter how illegal it is, public officials are free [inaudible 01:01:00].

Katherine: In that case, the Supreme Court said, “Actually, manufacturing litigation is a form of political expression.”

Jad: Really?

Katherine: And it is totally okay.

Jad: Like free speech, basically?

Katherine: Yes. Like it's a way of expressing your political viewpoint. Test case litigation exploded after this.

Susan: Then, in the '60s and '70s, a lot of other movements, the women's movement, poor people's movement, saw the success the civil rights movement was having with these strategies, and they adopted them as well.

Jad: Now I guess that includes Ed Blum.

Katherine: Yes.

Edward: The founding principles of the civil rights movement have been embraced by the vast majority of Americans in this country. Those founding principles guide these lawsuits. That basic fundamental guiding principle of the civil rights movement, and how it needs to be applied today.

Unidentified Speaker: I can't say what I think of that on family radio. [laughs] That is not accurate. Ed Blum is not carrying the standard forward for civil rights in America. That is not what he's doing.

Jad: Elie says, he is actually doing something that's deeply important to our political system.

Elie: Look at the current election cycle. I see a lot of people who agree with Ed Blum. They agreed with him in a way that couldn't be expressed in the polls. They're out there, this is one way for that. Again, that's another call back to the civil rights movement, when you have a minority population who believes in something. They just get trampled in popular elections, okay, but do they still have a voice? Should they still have a voice? Should they still have a way to enact change on their behalf over the will of the majority?

Again, that seems to me textbook what courts are supposed to be able to do, to look out for the rights of minorities, political minorities, more than ethnic, racial, and religious, and see that they are not being trampled by a majoritarian tyranny. Ed Blum is helping a minority of people who believe what he believes.

Jad: I am so not prepared for you saying any of this. [laughs] This is really surprising to me.

[music]

Thank you to Katherine Wells, sincere thanks to her for reporting these two segments, and Elie Mystal, our legal editor. More Perfect is produced by me, Jad Abumrad with Tobin Low, Kelsey Paget, and Suzie Lechtenberg, who'll take it from here.

[music]

Suzie Lechtenberg: With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Sean Ramasrun, Katherine Wells, Barry Finkle, Amy Mills, Dylan Keefe, and Michelle Harris. Special thanks to Dale Carpenter, his book Flagrant Conduct is all about Lawrence versus Texas. Thanks also to Lambda Legal, Lisa Hardaway, JD Doyle, Ari Berman, Amy Howe, and Geek Charles.

Supreme Court audio is from OEA, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, The Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.

 

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