It is difficult now—though in some quarters perhaps not difficult enough—to imagine a time when gay men could be arrested for having sex behind closed doors, in the privacy of their own bedrooms. Like witch-burning and pleated denim trousers, sodomy laws criminalizing homosexual relations between consenting adults would seem to belong to some distant, barbarous age, as inconceivable to progressive moderns as, say, “colored” toilets and drinking fountains. If only it were so. With its recent success, the movement for same-sex equality has acquired a powerful aura of inevitability inconceivable as few as 10 years ago, when sodomy laws remained in effect in 13 states.
The Supreme Court’s overturning of American sodomy laws in 2003 of course belongs to the larger history of gay rights and, indeed, of human rights writ large. But until now, the story of Lawrence v. Texas has seemed more abstractly jurisprudential—and so more distant—than dramatic or human. In his sinuous, elegant new book, Flagrant Conduct, Dale Carpenter, a professor at the University of Minnesota Law School, gives this landmark case the bold, intimate face it has long deserved, even as he conducts a captivating, forensic tour of its legal subterrain. The result, from its first pages, is a book that sets a benchmark for the writing of civil-rights history, a book with all the stirring social consciousness and staying power of Taylor Branch’s trilogy, America in the King Years.
Much of what we know about Lawrence v. Texas proves, in Carpenter’s persuasive telling, to be untrue. What we know, or thought we knew, is this: on the evening of September 17, 1998, at a dingy, blue-collar apartment complex outside Houston, four sheriff’s deputies responded “to a report of ‘a black male going crazy with a gun.’ ” What they found, on entering the apartment of John Lawrence, was almost certainly not what even the most knowledgeable gay-rights advocates believe to this day. There was indeed a black man in the apartment—Tyron Garner—although he had no gun. But just what, exactly, were he and Lawrence doing at the time of their arrest? Deputy Joseph Quinn, the lead officer, claimed to have discovered the pair in flagrante delicto, engaged in anal intercourse. The other three deputies offered differing accounts, none mentioning anal sex (the author’s subsequent interviews turned up still further inconsistencies—as well as retractions).
And so, Carpenter explains, the entire story of one of the most significant civil rights cases of our time comes apart. Charged with violating Texas’s “Homosexual Conduct” law, Lawrence and Tyron immediately protested that they hadn’t once had sex—not on September 17, not ever. No matter: the men soon found themselves swept up in a legal drama of almost Shakespearean dimensions, the unwitting centerpieces of a case predicated on the very unlikely fact of their sexual liaison (and non-existent relationship). When, in 2003, the Supreme Court issued its opinion in Lawrence, Justice Anthony Kennedy, writing for the majority, had this to say: “When sexuality finds overt expression in intimate conduct, the conduct can be but one element in a bond that is more enduring.” What had begun as a sodomy case ended up being about a great deal more: the recognition “that gay sex, too, might lead to—and might be an integral part of—lasting relationships.”
A more ingenious legal strategy is hard to imagine. Since 1986, when the Supreme Court upheld the constitutionality of Georgia’s sodomy law in Bowers v. Hardwick, lawyers at the Lambda Legal Defense and Education Fund had been waiting to reverse the Court’s ruling and with it strike down all sodomy laws. Now they had their chance. But it wasn’t quite the chance they’d been hoping for. “The background facts in Lawrence v. Texas do not make for an easily packaged story with idealized characters,” Carpenter writes. Lawrence and Garner, he adds, were scarcely the “poster people” on whom Lambda’s lawyers surely would have aspired to pin their hopes—presumably successful, respectable, white middle-class men in a committed relationship. But if by conventional standards Lawrence and Garner’s led less than exemplary lives, it’s worth pointing out that both became civil-rights heroes when they willingly lent their names to a sodomy case, which few comfortably situated defendants would have been likely to do.
“Lawrence,” he writes, “did not cause all of this change, but it ratified and intensified the underlying cultural shift that made it possible.It also furnished a constitutional basis for further changes to come.”
For a case so conspicuously bound up with two men’s lives, and those of a substantial supporting cast, Lawrence v. Texas lacked visible key players to an incredible degree. In the general public’s eye—as in the eyes of most gays and lesbians—the trial has chiefly been about “constitutional theories and doctrines.” Not so. “It was,” Carpenter says, “about lives.” There can be no understanding Lawrence v. Texas without taking stock of the two men themselves. And so, in some of book’s most affecting pages, Carpenter reconstructs the hardscrabble lives of Lawrence and Garner, who no more sought the spotlight than they did careers as gay activists.
If, as they say, timing is everything, then Lawrence reached the Supreme Court at a propitious moment indeed. By 2003 public opinion had shifted on the subject of homosexuality. The Supreme Court, notorious for its proud isolation from the poloi, would hardly seem a reliable barometer of such things. Carpenter says otherwise. He takes us not only inside the justices' chambers, but leads us into their hearts as well. Like tens of thousands of Americans, members of the Supreme Court could no longer claim, as Justice Lewis F. Powell Jr. did at the time of Bowers, to have “never met a homosexual.” Consider, as Carpenter does, the instance of Justice Sandra Day O’Conner’s then-recent gift to the child of a former clerk and her lesbian companion. Seventeen years earlier, O’Connor had voted with the majority in Bowers. This time, she joined the majority in reversing the 1986 ruling. Carpenter’s exquisite sensitivity to such details stands as a breathtaking reminder of history’s vast psychological dimensions.
Carpenter’s crackerjack sleuthing gives Flagrant Conduct the delectable air of a fine mystery novel. In his practiced hands, legal arcana become as transparent as glass. But the book has large points to make as well. Carpenter, happily, is too fine a scholar to speculate overmuch on the ultimate fate of Proposition 8. But he’s right to emphasize Lawrence’s enormous impact on subsequent policy, including the “Don’t Ask, Don’t Tell” statute. “Lawrence,” he writes, “did not cause all of this change, but it ratified and intensified the underlying cultural shift that made it possible. It also furnished a constitutional basis for further changes to come.” Exactly what the future holds for same-sex marriage is anyone’s guess. Dale Carpenter, in this outstanding book, tempers hope with caution. He reminds us that recent triumphs are more fragile than we are wise to forget.