In 1986, in Bowers v. Hardwick, the Chief Justice of the United States, Warren Burger, drawing on the English jurist William Blackstone, described homosexual sodomy as “an offense of ‘deeper malignity’ than rape,” and “a crime not fit to be named.” He did so in a concurrence to a decision upholding a Georgia sodomy statute. Seventeen years later, in Lawrence v. Texas, the Supreme Court declared that same conduct to be a fundamental right, a constitutionally protected aspect of personal liberty when engaged in by consenting adults in private.
It is rare enough for conduct long considered criminal, indeed worse than rape, to be transformed into a constitutional right. But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.
The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.
Unlike the Court, Carpenter revels in the factual details and the personalities involved in the struggle, as he takes us from the recesses of a private bedroom in a seedy condominium on the outskirts of Houston to the oral argument in the grand chamber of the United States Supreme Court. Along the way, he offers sharp insights into the politics, ironies, and strategies behind the Brown v. Board of Education of the gay rights movement.
It wasn’t only the Supreme Court justices, Carpenter reveals, who did not want to focus on the facts. It was no accident that in Lawrence v. Texas there had been no trial, no testimony, no witnesses. On advice of their lawyers, the defendants, John Lawrence and Tyron Garner, pleaded “no contest,” meaning that they accepted the facts as asserted in a single sixty-eight-word police report filed with the court, and chose instead to fight their convictions only by challenging the validity of the law they were alleged to have violated. The silence extended beyond the courtroom. Their attorneys counseled the two men not to talk about what happened in the apartment, not only to the press while the case was ongoing, but even to Carpenter himself long after the case had ended in victory.
As Carpenter tells it, however, the story of what actually happened in John Lawrence’s apartment on the night of September 17, 1998, is far more complicated than the unchallenged police report suggests. Indeed, he maintains, there may have been no sex, much less sodomy, at the core of this case about the constitutional status of homosexual sexual activity.
What is undisputed is that four officers of the Harris County Sheriff’s Office responded to a call that there was a “black male going crazy with a gun” in a condominium apartment. The call had been made by Robert Eubanks, the sometime partner of Tyron Garner, in a drunken rage that may have been sparked by jealousy about Garner and Lawrence. The three men had been in Lawrence’s apartment on a hot September evening, and Lawrence and Eubanks were drunk. At some point, Eubanks left the apartment, angry, and called the police with the false report. The officers arrived, found Eubanks crying and shaking outside, and approached the apartment. When they found its door ajar, they announced themselves and entered.
What they found inside is entirely in dispute. The lead officer, Joseph Quinn, reported that after announcing the officers’ presence, entering the apartment, and moving to a back bedroom, he observed Lawrence and Garner there, engaged in anal sex. His partner William Lilly said he observed oral sex, but also said he wasn’t sure whether it was anal or oral. Lawrence claimed that he and Garner were not engaged in sex of any kind with each other, then or ever, and were actually seated fifteen feet apart when the officers entered. The other two officers said they saw no sex take place. Quinn’s account is undermined by his implausible claim that the men continued to engage in sex well after they knew police officers had entered their apartment, guns drawn, and continued even after Quinn entered the bedroom and directly ordered them to stop.
Lawrence was drunk, and refused to cooperate with the police. They had to drag him out of the apartment to the patrol car. He refused even to put his pants on, and went to the station in his underwear. Quinn, the lead officer on the scene, did not tolerate such defiance. He had a reputation for being overzealous, and had previously arrested two mothers for parking briefly in a no-parking zone while picking up their children from middle school, and a soccer coach for stopping temporarily in a disabled space while she unloaded her team’s equipment—even though she had a disabled tag on her car. Quinn had been the subject of citizen complaints, and his own department had sent him to anger management school.
Most police officers would not have charged two men, found in the privacy of their own bedroom, with having sex, even if they happened to observe it, and even if it happened to violate the law. Sodomy statutes had long been on the books in many states, but were enforced exceedingly rarely, almost exclusively against public or coerced sexual conduct. This enforcement pattern had posed a problem for gay rights litigators, who ever since the 1986 decision of Bowers v. Hardwick held that Georgia’s sodomy statute was constitutional had sought a good vehicle to challenge it, namely, a case involving two consenting adults in the privacy of their own bedroom. Without a prosecution, it was difficult to establish standing to challenge the laws. Officer Quinn, perhaps because he was enraged by Lawrence’s disobedient attitude, had given gay rights litigators exactly what they wanted.
Well, not exactly. The most sympathetic defendants would have been a long-standing committed couple, upright members of their community with flawless records, articulate about their relationship, facing jail for their private intimate choices. The drunken triangle that had led to the charges against Lawrence and Garner did not exactly fit the bill. Lawrence, a fifty-five-year-old white man, had been arrested for drunk driving twice, and convicted of “murder-by-automobile” in 1967. He had a long-term relationship with another man, but not with Tyron Garner. Garner, a young black man raised in Houston’s poverty-stricken inner city, never owned a car or house, never held a steady job, and never even rented an apartment. He had been convicted twice for assaults and arrested three more times for other crimes. And Robert Eubanks, who made the call that precipitated the whole affair, was described by one person close to the case as a “gun-totin’, beer-swillin’, Gilley’s kickin’ bubba from Pasadena.” In short, these were not exactly the “poster children” that the gay rights movement wanted.
But of course the ideal defendants would be unlikely to be arrested or charged with such a crime. So the gay rights community took what it could get. The case made its way to a local gay attorney, Mitchell Katine, who contacted lawyers with Lambda Legal, a national gay rights public interest law organization in New York. Lambda lawyers saw their opportunity, and swiftly assumed a lead role. At their recommendation, Lawrence and Garner withdrew their initial pleas of “not guilty,” which would have necessitated a trial and factual defense, and instead pleaded “no contest,” which focused the case solely on whether the law was valid.
From that point on, Lawrence and Garner receded into the background, as the lawyers portrayed the case as a challenge to a statute that affected all gay and lesbian persons, treating them as criminals for engaging in the same consensual intimate sexual acts in which heterosexuals were free to engage. Since 1974, Texas’s law made anal and oral sex a crime only when committed by persons of the same sex. So the lawyers challenged the law as both a violation of the Constitution’s guarantee of equal protection by impermissibly singling out gays and lesbians, and a violation of the liberty of consenting adults to engage in sexual acts of their choice in the privacy of their own homes.
In a sense, it is entirely fitting that we do not know whether Lawrence and Garner were actually engaged in sex when arrested. The sodomy statutes, after all, were significant not because they actually deterred private intimate sexual activity among same-sex couples. Since they were so rarely enforced, few would avoid private sexual relations out of fear of being prosecuted. Rather, the statutes worked more insidiously, as a symbolic marker of second-class status for all gays and lesbians. Sodomy laws treated all but the celibate homosexual as presumptively criminal. And that status had ripple effects down the line, since it could be used to deny gay parents custody or adoption, to bar them from renting a home (on the ground that they would inevitably commit crimes there), or to disqualify them from jobs.
In November 1999, Lambda’s Ruth Harlow argued the case to an initial appeals panel in Texas comprised of three Republican judges. Remarkably enough, she prevailed, 2–1. The Texas Republican Party, however, immediately rebuked the two judges in the majority, and vowed to oppose them in their reelection campaigns. The full Texas appeals court (also all elected judges) apparently heeded the warning and reversed the panel, 7–2, without even hearing oral argument. The Texas Criminal Court of Appeals, the state’s highest court for criminal matters, declined to hear a further appeal, and the case was ready to be presented to the US Supreme Court.
At this point, Harlow enlisted as co-counsel Bill Hohengarten, of Jenner & Block, a leading corporate law firm. And Harlow selflessly elected to have the case argued by Paul Smith, an experienced Supreme Court litigator, also at Jenner & Block. Harlow and others felt it essential that a gay or lesbian lawyer argue a case that so centrally implicated the status of gays and lesbians. Smith was openly gay, but was primarily known to the Court not as a gay rights advocate, but as a talented, trustworthy, and seasoned Supreme Court litigator who had a thriving appellate practice representing corporations. Lambda also coordinated the filing of “friend-of-court” briefs from some of the nation’s best lawyers, representing such establishment organizations as the American Psychological Association, the Episcopal Church, the American Bar Association, and even the Republican Unity Coalition.