A DISCUSSION OF LAW AND JOURNALISM

A Public Conversation About “Flagrant Conduct”

By Drew Carroll

Thursday, March 22, 6:00 p.m.

On a beautiful summer-like evening in New York City, just outside Columbus Circle, the Institute for American Values’ Center for Public Conversation hosted University of Minnesota Civil Liberties Law Professor Dale Carpenter, author of the acclaimed new book “Flagrant Conduct.”

The book demythologizes the facts behind Lawrence v. Texas, the landmark 2003 Supreme Court case that challenged a Texas law criminalizing sexual conduct between homosexuals; the decision sanctified the right of gay Americans to engage in sexual intimacy.

At the talk, Professor Carpenter offered this beautiful summation of his work, saying that it is the tale of “how gay rights lawyers rewrote a snarled human story into a pristine legal argument for basically a conservative Supreme Court.”

The snarled history began on an autumn evening in 1998, when four men were hanging out in a modest apartment in a poor section of Houston, Texas. John Lawrence and Tyron Garner had been talking in the kitchen when Mr. Garner’s boyfriend became jealous of what he perceived as flirtation between the two, and, wanting to cause trouble, went outside and called the police, saying that there was a man wielding a gun inside the apartment. It wasn’t true.

Several versions exist of what happened when Deputy Joseph Quinn arrived at the apartment with three other officers. Deputy Quinn’s version, described as the “most salacious” by Professor Carpenter, had Mr. Lawrence and Mr. Garner having sex when the cops walked in. With police officers screaming and guns drawn, this version had the two men ignoring repeated requests to disengage from their sexual activity, continuing to have sex for almost a full minute until being forcibly plied apart.

At our evening discussion, Professor Carpenter threatened to halt the discussion for a “full minute” so that the group could feel the force of  the passage of time. Over the years, he explained, many people have been skeptical of Deputy Quinn’s account, because, practically speaking, “the moment would have been over,” well before a forced separation.

Shortly before  his death on November 20, 2011, Mr. Lawrence told Professor Carpenter that the deputy’s version of events was pure and unadulterated fiction.  

Because Mr. Lawrence and Mr. Garner were not having sex when the deputy walked in that night.

They didn’t have sex at all that night.

In fact — and here is the part that’s kind of unbelievable –they never had sex.  Not ever.

Astounding, considering this case came to stand for the notion that “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

Lawrence, in the opinion of Professor Carpenter, is an All American case, in the sense that it would never have unfolded as it did elsewhere. Most foreign justice systems follow an inquisitorial model, where judges investigate the facts to determine truth. American courts, however, pit two opposing parties against each other, leaving it to the each side to uncover the truth and decide strategy. If there had been a neutral investigation of the facts in Lawrence, the charges would likely have been dropped — justice for the gentlemen involved in the case, perhaps, but a loss for gay rights activists.

In 1986 the Court had held in Bowers v. Hardwick that the Constitution did not provide homosexuals with a fundamental right to sex. This meant that states could criminalize sexual conduct between homosexuals, while at the same time, shockingly, decriminalizing bestiality, which many did, including Texas.

Since it’s rare for the police to catch people doing what they usually do in the privacy of their own home, the laws remained on the books, but were seldom enforced.  And because courts only hear cases when there is a live controversy, nobody was able to challenge the laws – which, despite not leading to actual arrests, had real world consequences.  The law was used to justify discriminating against gays and lesbians in housing, adoption rights, and employment.

That’s why once gay rights advocates got wind of this case, their mission became to challenge the law itself, not the facts that led to the charges.  As David Oshinsky of the New York Times put it, Deputy Quinn had three options that night in Texas: “He could warn the two and let them go; he could charge them and issue citations; or he could arrest them and haul them off to jail. Quinn chose Option 3,” and the rest is history.

The officers on that fateful evening in Houston didn’t do anything out of the ordinary, though, for that time and for that place.  In fact, their behavior was exactly what the Texas homosexual conduct law encouraged.

As Professor Carpenter explained it, this case was set in motion purely because the occupants of the apartment the officers walked into were gay. John Lawrence had a pencil drawing of a naked James Dean with oversized genitals hanging on his bedroom wall – and it was evidence of a gay lifestyle, not actual sex, that the officers saw and which precipitated the arrests.

Which is all the more amazing when you stop to think that during the same period, and in the same part of the country, the typical police reaction to finding a heterosexual couple having sex in the backseat of a car was to admonish them “just go home.” Of course, Deputy Quinn could not tell John Lawrence to go home. He was already there.

Professor Carpenter believes the shift in attitudes towards homosexuality between 1986 when Bowers was decided and 2003 when Lawrence made it to the Supreme Court was critical to the outcome of the case. The Lawrence team leveraged that shift, which was prevalent in the D.C. legal community where many of the justices had worked and maintained connections. In 2003, several of the justices knew gay people, or were even friends with them.  In fact, the lawyer who argued the case for Mr. Lawrence and Mr. Garner at the Supreme Court, had, earlier in his career, served as Justice Lewis Powell’s law clerk. Justice Powell cast the deciding vote in Bowers to uphold a Georgia statute banning gay sex.

Professor Carpenter shared the following story to sum up the change in attitudes about homosexuality by members of the Court. In 1986, while considering the Bowers case, Justice Powell told one of his law clerks that he did not actually know any gay people and was not sure what he thought about the lifestyle. The clerk he was speaking to was a closeted gay man, as were several other clerks of his throughout the late-seventies and early-eighties.

Seventeen years later, one of those former clerks, Paul Smith, would argue in front of the Court that the justices should reverse Bowers. Just before the oral argument, the most important argument of his career, Mr. Smith learned that Justice Sandra Day O’Connor, who had also voted to uphold the anti-gay law in Bowers, had recently sent a baby gift to her friends who’d become new parents.  Mr. Smith was encouraged by this news; the parents were two women.

Both Justices Powell and O’Connor voted with the majority in Lawrence, holding that pursuant to the U.S. Constitution, being gay is okay.

A groundbreaking decision and a fascinating case, handled deftly and compassionately in Professor Carpenter’s book.

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