Several things made the scene in the U.S. Supreme Court building on June 26, 2003, unusual. First, the court, by a solid 6 to 3 majority, had just overturned a decision issued only seventeen years earlier. Second, many of the lawyers assembled in the room, some of them former court clerks, openly wept, in a venue where expressions of emotion are usually held in check. And, oh yes, for the first time ever, the highest judicial body in the land had declared that Americans have a constitutional right to engage in what was genteelly referred to as “homosexual conduct.”
In the years since, the case decided that day, Lawrence v. Texas, has joined Brown v. Board of Education and, more controversially, Roe v. Wade in a long line of landmark decisions extending the Constitution’s protection of civil liberties. One of Dale Carpenter’s achievements in Flagrant Conduct: The Story of Lawrence v. Texas (Norton, $29.95) is to examine how such decisions arise. Brown, for instance, featured a well-chosen plaintiff who was represented by skilled lawyers committed to a tactically precise litigation campaign. Roe, on the other hand, was an almost accidental case that occasioned the young and inexperienced Sarah Weddington’s first trip to the Supreme Court. Lawrence is an interesting combination of these two models.
As Carpenter laconically writes, “The background facts in Lawrence v. Texas do not make for an easily packaged story with idealized characters.” In fact, the case’s development was so haphazard that the story almost reads like a comedy of errors. On September 17, 1998 (Constitution Day, for what that’s worth), John Lawrence was hanging out in his apartment east of the Houston city limits, drinking with his friend Robert Eubanks and Eubanks’s boyfriend, Tyron Garner. All three men were gay, but none could be described as an activist. Lawrence, 55 years old at the time, was a medical technician with a history of drunk-driving arrests. Eubanks was a sporadically employed heavy drinker. Garner was unemployed, with no fixed residence.
That evening a drunk Eubanks became angry at Lawrence and Garner and walked out the door. He then called the Harris County Sheriff’s Office, falsely claiming that a black man with a gun (Garner was black) was acting in a threatening manner in Lawrence’s apartment. Four sheriff’s deputies showed up, entered the residence, and, according to their report, discovered Lawrence and Garner engaging in a sexual act that violated Texas’s homosexual conduct law and arrested them.
Normally such a case would have wended its way through the local judicial system and been quietly resolved. But Lane Lewis, a bartender at a Houston gay bar, heard about the arrest—from a closeted sergeant in the sheriff’s office who was a frequent customer—and encouraged Lawrence to contact a sympathetic lawyer. Though the arrest was an embarrassment for both men, it was an answer to the prayers of organizations fighting for gay rights. While complaints about harassment of gays were common, arrests for committing sodomy within one’s own home were virtually unheard of. Unsurprisingly, several attorneys proved eager to argue the case.
There was a problem, however. According to Carpenter, the alleged sexual encounter between Lawrence and Garner never took place . The two Harris County deputies who claimed they observed the men having sex differed in their recollections of what they saw; one said anal sex, the other oral—a major point of confusion. What’s more, in a 2011 interview with Carpenter, Lawrence explicitly denied that he and Garner were having sex. And so their first act as “gay activists” was to plead no contest instead of not guilty, in order to create a constitutional test case.
Once the case made it to the Harris County Criminal Court, defense counsel found what it regarded as an unlikely ally: the chief prosecutor, Angela Jewel Beavers, was a lesbian who recognized the importance of the case. The book is full of such appearances by closeted members of the Houston legal and police communities, many of whom did what they could to help the cause.
Carpenter, a law professor, skillfully brings this world to life, perhaps because he was once part of it. Raised in Corpus Christi, he clerked for Fifth Circuit judge Edith Jones, practiced law with the Houston firm Vinson and Elkins, and served as president of the Texas Log Cabin Republicans, an organization devoted to integrating gays into the Republican party. He well understands the people, places, and legal arguments that make up this story. Carpenter does a particularly effective job, for example, of portraying the intense consultations that Houston gay activists—including now-mayor Annise Parker—engaged in after the arrest. And he recognizes the meaning of fine cultural distinctions that an outsider would likely miss, such as Parker’s saying to Lewis, “Tell me it’s not a Houston police officer who did this,” and then feeling reassured when she learns that the arresting officer was, in fact, a county sheriff’s deputy.
One might think that when the case reached Washington, D.C., Texas would have been capably represented before the highest court in the land. But one would be wrong. The state was represented by Houston district attorney Charles “Chuck” Rosenthal (who, in a bit of poetic justice, later resigned from office after engaging in an extramarital affair with his secretary). Despite little or no experience as an appellate attorney, Rosenthal insisted on having his moment in the sun and made a fool of himself when trying to explain why Texas decriminalized almost all sexual conduct in 1973 (including bestiality) save for “homosexual sodomy.” Perhaps the outcome would have been the same even if Texas had received competent representation, given that the zeitgeist had certainly changed since 1986, when the court, in Bowers v. Hardwick , found that homosexual acts were not constitutionally protected. And so Justice Anthony Kennedy declared for the court that Texas was “seek[ing] to control a personal relationship that is within the liberty of persons to choose without being punished as criminals.” And the audience wept.