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Another look at Lawrence v. Texas

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By Jacob Combs

This week’s New Yorker has a great article by Slate’s excellent legal analyst, Dahlia Lithwick, about ‘the story behind the story’ of Lawrence v. Texas, the 2003 Supreme Court decision that invalidated the state sodomy laws that remained on the books in parts of the U.S.  The events that led up to the court case that would become Lawrence are almost as well known as the decision itself: responding to a 911 call about a crazy man with a gun, Houston police officers burst into the apartment of John Geddes Lawrence and caught him in flagrante delicto with his lover, Tyron Garner.  The two were charged under and then challenged Texas’s sodomy law, leading to a sweeping Supreme Court opinion in which Justice Anthony Kennedy not only acknowledged gay and lesbian individuals’ right to personal sexual privacy, but also their right to engage in intimate relationships, writing, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”

The only thing is, that’s not really what happened.  In her New Yorker piece, Lithwick reviews Dale Carpenter’s new book “Flagrant Conduct,” a painstaking piece of research that aims to explore the personal lives of the Lawrence defendants and recreate the situation that led up to the arrest.  Based on his interviews, Carpenter discovered, the famous backstory to the Lawrence case is in fact both more ambiguous and less dramatic.  Garner and Lawrence weren’t lovers, before of after the case; in fact, on the night of the arrest, Garner was with his actual lover, Robert Eubanks, at Lawrence’s house, along with a possible fourth man.  It was Eubanks, jealous of the attention he thought Garner was showing to Lawrence, who made the anonymous call to police about the gun.  What’s even more surprising is that there may not have been any sex.  The police officers who arrested the two men in 1998 never agreed on what they saw in the apartment: one reported seeing the two men having anal sex, another said he saw oral sex, and the other two said they saw no sex at all.

But no matter what the truth of that September night in 1998 may be, the real story of Lawrence v. Texas is the brilliant case that the lawyers who chose to represent the two men devised and argued successfully all the way to the Supreme Court.  As Lithwick points out, the gay rights advocates who were still stinging from the Supreme Court’s defense of sodomy laws in Bowers v. Hardwick knew how difficult it would be to find another test case to challenge the Texas statute.  Lawrence presented an excellent opportunity when it came to the law; what it didn’t present were the perfect plaintiffs.  Lawrence and Garner were both lower-middle class and had had personal problems in the past.  As Lithwick writes, “They were not the type to tug at judicial heartstrings.”

So the lawyers came up with a clever way of reframing the entire case: they focused on the law and not the individuals.  They asked the court to respect the plaintiffs’ personal privacy, urged Lawrence and Garner to avoid speaking to the press, and spent their time in court focusing on the unfair and unconstitutional way that sodomy laws were enforced so that they targeted gay couples.  During oral arguments, the district attorney who attempted to defend the law before the Supreme Court had trouble coming up with a single reason why the law should stand.

Unlike Lawrence, the Prop 8 trial not only provides the opportunity for a great legal case, it presents great plaintiffs, too.  Kristin Perry and Sandra Steir are a committed couple raising four children in Berkeley; Paul Katami and Jeff Zarrillo, who live in Burbank, are eager to start a family of their own.  These four plaintiffs show that Prop 8 is not only a law that has no rational governmental justification that benefits society, it in fact harms the state of California by discriminating against the very couples and families that could strengthen and contribute to society if their unions were fully recognized.

In closing her New Yorker piece, Lithwick asks, “Does it matter that, in Justice Kennedy’s stirring meditation on privacy and dignity and the “manifold possibilities” of liberty, the truth of the non-relationship between the non-lovers John Lawrence and Tyron Garner was lost? Does it matter that our collective memory locks the two men together in a mythic embrace?”

No.  As important as they are, the plaintiffs of the great civil rights cases in our nation’s history, from Oliver and Darlene Brown to Mildred and Richard Loving to John Lawrence to Kristin Perry, are representatives of a much larger class of Americans: those who history has marked out as less than others, but who changing hearts and the power of the law have brought (or in the case of Prop 8, are bringing) into the fold of full, true equality.  John Lawrence and Tyron Gardner may not even have had sex on that September night, but their very existence as individuals who were victimized by the law rather than protected by it, has made them a part of history.

7 Comments Leave a Comment

  • 1. Sagesse  |  March 6, 2012 at 12:11 pm

    @

  • 2. Alan_Eckert  |  March 6, 2012 at 1:34 pm

    "Does it matter that our collective memory locks the two men together in a mythic embrace?”

    No, because the default should be ignorance about the situation from the government's point of view.

  • 3. James Sweet  |  March 6, 2012 at 1:58 pm

    Lawrence presented an excellent opportunity when it came to the law; what it didn’t present were the perfect plaintiffs. Lawrence and Garner were both lower-middle class and had had personal problems in the past. As Lithwick writes, “They were not the type to tug at judicial heartstrings.”

    True enough, though it bares saying that those very things that made Lawrence and Garner not the perfect plaintiffs also make them a prefect example of why anti-sodomy laws needed to be struck from the lawbooks, even in states when they were almost never enforced. You think that if the exact same scenario had played out, but with the participants all being upper-middle class whites with no troubled past, that a single arrest would have been made? I tend to doubt it.

    (Lawrence was white and Garner is black — excuse me if I wonder if shades of Loving v. Virginia may have played into the officers' decision to book an arrest on this seldom-enforced statute)

    Obviously anti-sodomy laws were wrong simply because they criminalized and demonized consensual activity between two loving adults. But in addition to being explicitly homophobic, unevenly enforced laws like that are implicitly classist and racist. Lawrence's and Garner's arrest was a perfect demonstration of that added inequity, even if it made them less-than-ideal plaintiffs.

  • 4. James Sweet  |  March 6, 2012 at 2:18 pm

    Small correction: I had said "Lawrence was white and Garner is black", emphasis added, because I thought Garner was still alive. Then I finished reading the New Yorker article. Holy crap, he died at 39. No funeral. Sad.

  • 5. rocketeer500  |  March 6, 2012 at 2:56 pm

    James, I agree, very sad.

    Here is the link for the obituary for John Geddes Lawrence Jr :
    http://lezgetreal.com/2011/12/a-belated-obituary-

    Here is a link to the reported death (obituary) of Tyron Garner:
    http://www.nytimes.com/2006/09/14/obituaries/14ga

    They, themselves, may not be famous, but what they overcame and fought for will be remembered for many years to come.

  • 6. icapricorn  |  March 7, 2012 at 4:44 am

    Two excerpts from the article:

    "The plaintiffs who seek redress at the Supreme Court are rarely as polished as the movie versions that the Court can bring itself to love."

    "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."

  • 7. James Sweet  |  March 7, 2012 at 6:16 am

    Yeah, I lol'd at that last sentence.

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