Book Club: Flagrant Conduct

Although books have shaped much of my political thinking, until recently I never did much reading about LGBTQ equality. My own reasoning made me an ally, so I wasn’t as well versed as I could have been. That’s why I never knew the full importance and the unlikely history of the 2003 Supreme Court decision in Lawrence v. Texas — the landmark case that put sodomy laws on trial — until I picked up Dale Carpenter’s recently published history of the case, Flagrant Conduct: The Story of Lawrence v. Texas (W. W. Norton, 2012).

Sodomy laws gave police leverage to harass members of the LGBTQ community.

Flagrant Conduct tells the story of two men who were arrested for what they didn’t even know was a crime. They could have paid fines to put the incident behind them quietly, but activists and legal counsel convinced them to take their case all the way to the Supreme Court. Although they were strangers to activism, the two men agreed to use their case to defeat an unfair law. Five years later, the two men and their attorneys won a high-stakes victory in a conservative Supreme Court.

The arrest of John Lawrence and Tyron Garner in Houston on September 17, 1998 — 14 years ago today — was the event that led to Lawrence v. Texas. That night, deputies responded to a 911 call reporting that a man was “going crazy with a gun” in Lawrence’s apartment. The deputies who arrived never encountered a man with a gun, but they arrested Lawrence and Garner for engaging in, as the offense report put it, “deviate sexual intercourse[,] namely anal sex.” The two men were charged with violating the state’s “Homosexual Conduct” law, Section 21.06 of the Texas Penal Code. The law, which criminalized same-sex sexual intimacy, was put in place when Texas revised its sex laws in 1973, giving more sexual freedoms to heterosexuals but fewer to gays and lesbians.

The person who had made the 911 call was Tyron Garner’s partner, Robert Eubanks, who was jealous of Garner’s attention to Lawrence that night. His judgment impaired from drinking, he told Lawrence and Garner that we was leaving to get a soda from a nearby vending machine. Instead, he called 911 to separate the two of them by police intervention. It’s doubtful that his jealousy was well founded, and exactly what transpired after his 911 call is largely a mystery. Carpenter sorts through many conflicting accounts, casting doubt on the deputies’ claims.

Most likely Lawrence and Garner never had sex with each other. Arresting gays and lesbians for fabricated sex crimes was a “harassment tactic” that had a long history; for an egregious example, Carpenter tells of “a San Antonio park ranger [who] arrested more than 500 presumed gay men in a public park simply because ‘he wanted to rid the park of gays.’” Carpenter reviews the implausible details in the deputies’ accounts, among them that two men with no history of romantic involvement or exhibitionism would initiate sex just minutes after Eubanks stepped out to buy a soda — and continue having sex after deputies entered Lawrence’s bedroom. The first deputy on the scene, according to Carpenter, had a history of arresting people for minor provocations and a dismissive attitude toward proper protocols. Carpenter speculates that he concocted the anal sex story — and the other deputies went along with it — out of homophobia, and out of annoyance at the false domestic disturbance call. Garner recalled that the deputies used homophobic slurs while they were in the apartment.

However true or false the charges were, civil rights advocates, starting with Lane Lewis of the Houston Gay and Lesbian Political Caucus, took an immediate interest in the case and convinced Lawrence and Garner to plead no contest. That plea would allow them to escalate the case through the higher courts, and make a legal challenge against Section 21.06. At the time of the two men’s arrest, 13 other states had similar laws that criminalized same-sex sexual intimacy. Although not often enforced, the laws were commonly used to stigmatize people for their sexual orientation. Gays and lesbians were often denied housing, employment, and child custody because they were viewed as lawbreakers. When Lawrence v. Texas went to the Supreme Court, those other states’ laws, by extension, were also under challenge.

In researching his book, Carpenter conducted in-depth interviews with many of the key players in Lawrence v. Texas. He chronicles how the gay rights advocates who litigated the case crafted a careful legal argument to minimize concerns among the conservative Supreme Court justices over the precedent their decision would set — namely, whether it would invalidate other laws governing marriage and sexual conduct. He chronicles, too, the missteps of the Texas prosecutors, who fumbled at providing a compelling reason for outlawing consensual sexual conduct between same-sex couples. Rejecting the prosecutors’ argument, on June 26, 2003, the Supreme Court announced its ruling, striking down the Texas law. Justice Anthony Kennedy wrote in his majority opinion “that there is a realm of personal liberty that the government may not enter.”

From beginning to end, Carpenter puts Lawrence v. Texas in the context of other landmark civil rights decisions and the history of gay rights activism. Just as importantly, he illuminates the personal meaning of Lawrence v. Texas to those whose private sexual conduct had been targeted for so long. For many, it meant the beginning of full acceptance into civic life. It meant they could be who they were with less fear.

With hundreds of locations nationwide, Planned Parenthood health centers provide health care, health information, and sex education to millions of people annually. Additionally, Planned Parenthood’s staff and volunteer educators provide educational programs at schools, civic organizations, religious institutions, and other settings on numerous topics, including safe sex, family life education, sexual orientation, and homophobia.