Landmark gay rights case courtroom drama explored in new book

By Arnold Fleischmann

Dale Carpenter's new book, Flagrant Conduct: The Story of Lawrence v. Texas, examines the history of the June 2003 case in which the U.S. Supreme Court ruled state sodomy laws unconstitutional.

It's easy to romanticize important court cases like this. But the lawsuit would not have happened without a lying call to a police dispatcher, what seems like police misconduct, great legal strategy by Lambda Legal Defense, frequent ineptitude by the lawyers representing Texas, some sympathetic officials, and just plain luck.

Carpenter, a law professor at the University of Minnesota, provides important background in chapters on the history of sodomy laws, Houston, the defendants, the arrest, analysis of what probably really happened on the night of the "crime," and other topics. The majority of the book, though, follows the case through the courts. It is based on media accounts, the legal record, and his years of extensive interviews with participants and observers associated with the case and LGBT politics. The 345 pages include almost 60 pages of endnotes, bibliography, and a thorough index.

John Lawrence and Tyron Garner were arrested in September 1998 when a third gay man made a false report to police about an armed man. The cops entered Lawrence's Houston apartment, where he voiced strong hostility to their presence. He and Garner were then arrested for allegedly violating Texas's "homosexual conduct law." That law had been revised in 1973 to include both anal and oral sex - and to apply only to same-sex couples, which became a key issue.

The case was not "staged" to challenge the Texas law. Indeed, Lawrence and Garner were angry, not political. Convicted of this misdemeanor carried only a small fine.

A gay clerk for a judge passed along the arrest record to an acquaintance, an activist who spoke with both men and eventually met Lawrence in a parking lot late at night to discuss the case. Local leaders and attorneys then sought help from Lambda Legal. They got Lawrence and Garner to commit to challenging the law, starting with a "no contest" plea, which meant that there was never an actual trial. From that point on, everything was done on appeal, where there are no witnesses or evidence, just written (briefs) and oral legal arguments to judges about the underlying issues.

The basic claim was that the Texas law violated the "equal protection" guarantees of the U.S. Constitution, because of the way it singled out homosexuals, and basic liberty rights. They also argued that the law violated the "right to privacy," which isn't explicit in the Constitution, but has evolved through court decisions.

The legal team worked through the Texas courts and then appealed to the U.S. Supreme Court. Winning meant getting the U.S. Supreme Court to agree to hear the case and then overturn its ruling in Bowers v. Hardwick, the notorious 1986 case in which a 5-4 majority upheld Georgia's sodomy law.

Each hurdle included important strategic decisions. The legal team shielded Lawrence and Garner from the media, avoided discussing the details of the arrest, emphasized previous cases on contraception rather than abortion, and tried to make the Supreme Court think narrowly about sodomy laws rather than other issues. They even orchestrated supportive "friend of the court" briefs filed by other organizations, including the American Bar Association and the Episcopal Church.

The other side was overmatched. The state attorney general (John Cornyn) was running for the U.S. Senate, and his office refused to defend the law. That left it to the district attorney's office back in Houston, which tried defending the law based on "public morality." They had limited appellate experience and made a dismal oral argument before the Supreme Court.

Lawrence and Garner won on every level in a 6-3 decision. In reading the court's ruling, Justice Anthony Kennedy said, "Bowers was not correct when it was decided and it is not correct today." As many expected, Justice Antonin Scalia responded by reading from a vehement dissent (joined by Rehnquist and Thomas) with scare tactics and the claim that the Court had "largely signed on to the so-called homosexual agenda."

The book is an excellent account of one of the landmark rulings for LGBT rights. Carpenter is not neutral about the case, but his interviews and analysis are balanced. For those who don't remember their college American government course, he provides careful explanations of legal procedures and terms.

Carpenter even recounts some humorous episodes. The attorneys for Garner and Lawrence asked the original judge who convicted them to raise their fine above $100 - otherwise they couldn't appeal. Luckily, the lesbian representing the DA's office agreed. Then there is Justice Breyer growing frustrated with the Houston DA's presentation to the Supreme Court. He finally asks the poor fellow for a "straight answer" to a question." Breyer didn't understand the laughter that erupted until Clarence Thomas leaned over and explained the joke.

Carpenter takes the time to examine how sodomy laws served to discriminate against individuals and also were used to threaten groups, such as public officials refusing to recognize gay or gay-friendly student organizations because they would "encourage" law-breaking. The only minor gap is a discussion of the backlash in 2004-2006 in which more than 20 states adopted constitutional amendments banning same-sex marriage. The Lawrence case was less important for that conservative crusade, however, than the ruling by the Massachusetts Supreme Court a few months later to recognize same-sex marriage in that state.

John Lawrence and Tyron Garner are now dead. The important case the bears their name, however, will live on for a long, long time.

Arnold Fleischmann is a professor of political science at Eastern Michigan University. arnie1950@gmail.com

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