Many people know that Lawrence v. Texas was a landmark 2003 Supreme Court case that declared the state's anti-sodomy law unconstitutional, but what about the story behind the case? Flagrant Conduct, a new book by University of Minnesota Law School professor Dale Carpenter, pulls back the curtain and tells the story of John Geddes Lawrence and Tyron Garner, the men at the center of the case.
Lawrence and Garner (pictured above, at left, with their lawyer) were arrested in 1998 after Harris County sheriff's deputies, who responded to a call about an argument at a seedy East Houston apartment, said they saw the men having sex. But in his book, Carpenter theorizes that the two men were acquaintances, not lovers, and that the pair was not engaged in any sexual act.
"[I]f there was no sex, let alone an intimate relationship, in John Lawrence's apartment that night, how did the case come to be about both?" Dahlia Lithwick asks in her review the book in last week's New Yorker.
Lawrence and Garner became "accidental plaintiffs" after gay activists got wind of their arrests and decided their case could be the perfect test of the constitutionality of the law because the pair had "little to lose" in admitting they had violated sodomy laws.
Civil rights attorneys persuaded them to plea no contest to the charges and employed a litigation strategy that was "deliberately framed" to show that homosexual conduct must be decriminalized "as a means of recognizing and legitimatizing same-sex 'relationships' and 'families,'" Lithwick writes. "In short, the legal issue was not that free societies must let drunken gay Texans have sex; it was that gay families around the country, in the words of one of the lawyers in the case, 'are essentially just like everybody else.'"
Carpenter's book, based on extensive research and interviews, reveals the pair "not only weren't having sex but were clothed," Lithwick writes.
That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.
Flagrant Conduct has been making a splash: Sanford Levinson reviewed the book in the March issue of TEXAS MONTHLY , and David Oshinsky tackled it in the New York Times, delving into the history of laws criminalizing homosexual conduct in Texas:
Texas, like most states, has a long history of criminalizing sodomy. What makes it special, however, is its obsession with the issue, which led Lone Star lawmakers to repeatedly refine their statutes over time. In 1943, Texas added oral sex to a long list of prohibited offenses. Thirty years later, it passed a law containing the “Homosexual Conduct” provision, which banned both oral and anal sex, but only when performed “with another individual of the same sex.” As such, the new law expanded the sexual freedom of heterosexuals while doing just the opposite for homosexuals. Put bluntly, it was now legal in Texas to have sex with a farm animal, but not with someone of the same gender.