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 …