Flagrant Conduct: The Story of Lawrence v. Texas

  • Dale Carpenter
  • W. W. Norton & Co.
  • 368 pp.
  • May 4, 2012

A meticulous account of the landmark Supreme Court case — and the personal cost to the defendants who relinquished their privacy in order to secure it for others.

Reviewed by Peter Nicolas

For decades, gay rights advocates awaited the perfect test case to challenge the constitutionality of sodomy laws. Although rarely enforced directly, their mere existence — coupled with the U.S. Supreme Court’s 1986 decision in Bowers v. Hardwick upholding their constitutionality — has been used to justify denying gays and lesbians such things as the right to marry, to serve in the military and even to retain custody of their own children. When police in Houston, Texas, entered the home of John Lawrence in 1998 and arrested him and Tyron Garner, gay rights advocates had their perfect test case. Indeed, it was almost too perfect.

In Flagrant Conduct, Professor Dale Carpenter tells the intriguing story behind the sanitized facts of the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which overturned Bowers and declared sodomy laws unconstitutional. Relying on personal interviews with nearly everyone involved in the case, Carpenter demonstrates that the perfect test case was almost no case at all. Rather, human imperfection — including a lovers’ spat, probable police misconduct, and ego — coupled with a few gays in the right place at the right time and masterful lawyering by gay rights advocates, brought an end to sodomy laws and their collateral effects. Ironically, Carpenter provides strong evidence that there may not actually have been any sex at all in this landmark case that decriminalized gay sex.

Were one to rely only on the Supreme Court’s opinion in Lawrence, one might conclude that Lawrence and Garner were in a long-term committed relationship and were sharing an intimate moment when the police barged into their home and arrested them for violating Texas’ Homosexual Conduct law. That, as Carpenter notes, is exactly the picture that gay rights advocates wanted the courts and the public to see; yet, it bore very little resemblance to what actually happened. According to Carpenter, Garner was in a relationship with a third person, Robert Eubanks, and all three were at Lawrence’s apartment the night of the arrest. After Eubanks became drunk and belligerent, Lawrence kicked him out, but allowed Garner to stay. Eubanks, jealous over what he perceived as flirting between Lawrence and Garner, called the sheriff’s office and falsely reported a weapons disturbance at the apartment, which brought several officers to the scene and resulted in the arrest of Lawrence and Garner.

Carpenter’s interviews with the defendants and most of the arresting officers lead him to conclude that the men were not, in fact, having sexual intercourse. Rather, the charge was likely falsified by one of the officers with a reputation as a “rough cop” who — if not given the respect he felt he was entitled to — might cross the line from law enforcer to law breaker. Lawrence, not the least bit pleased to have the officers in his home, was in no mood to treat them with great respect. And so, Carpenter concludes, the officer — who was the first to arrive on the scene — probably never witnessed them violating the state’s sodomy law.

As Carpenter demonstrates throughout the book, the underlying facts of the case are truly stranger than fiction, so much so that, in retrospect, the odds of the case making its way to the U.S. Supreme Court seem like a longer shot than winning the lottery two weeks in a row. The most likely obstacle would have been the high likelihood that the defendants would either have paid the fine or defended themselves on the ground that they did not violate the statute. As it turned out, however, a closeted gay file clerk in the court where Lawrence and Garner had been arraigned and his partner — a police officer who worked with the officers that arrested them — casually mentioned the incident to a bartender at a gay bar they went to that evening. The bartender immediately grasped the case’s legal significance, contacted the defendants, and connected them with attorneys tied into the gay rights movement. Later on, a closeted lesbian prosecutor in the district attorney’s office who could have stopped the case dead in its tracks by declining to pursue it (or demanding a fine below the amount that would allow the defendants to appeal) cooperated with the attorneys for the defendants who wanted to plead no contest and have the fine set high enough that they could appeal the case and challenge the statute’s constitutionality.

In addition to uncovering the real story behind the case, Carpenter also reveals the facts and motivations that led to a clear mismatch of attorneys representing each side before the U.S. Supreme Court. As Carpenter tells it, the ego of the district attorney was such that, despite his lack of appellate experience, let alone any experience before the U.S. Supreme Court, he decided to argue the case himself instead of relying on those with greater experience.

While the facts behind the litigants and the lawyers of Lawrence are interesting themselves, perhaps the most eye-opening aspect of Carpenter’s story is the size of the personal sacrifice the defendants in Lawrence made for the larger cause of gay rights. Further, Carpenter’s story demonstrates that the gay rights community failed them in the end. The defendants gave up not only their privacy but also their right to defend themselves on the ground that they did not actually violate the statute in order to make it possible to challenge the constitutionality of the sodomy law itself and thus to secure privacy for everyone else. Yet, when Tyron Garner died, his family could not afford to bury or cremate him, and despite an appeal by his family, the gay rights legal community failed to raise even enough money to pay for his obituary or urn. His family had to collect his ashes from the morgue in a plastic bag.

Carpenter’s book is exhaustively researched, extraordinarily well written and difficult to put down. With Flagrant Conduct, he has injected a good dose of the real world into one of the most important legal cases in the fight for gay and lesbian equality. Moreover, he has revealed the often hidden costs of the “perfect” test case and, in doing so, has shed needed light on both the benefits and the burdens of impact litigation.

Peter Nicolas is the Jeffrey & Susan Brotman Professor of Law at the University of Washington School of Law. He is the author of The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) as well as a forthcoming constitutional law textbook focused on gay and transgendered rights with Carolina Academic Press.

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