How Anti-Sodomy Laws Were Sunk

If you love John Grisham’s fictional legal thrillers, you’ll be riveted to Dale Carpenter’s nonfiction page-turner “Flagrant Conduct: The Story of Lawrence v. Texas.” Carpenter is a law professor at the University of Minnesota and is involved with LGBTQ legal issues.

Told from the perspectives of the plaintiffs, arresting officers, attorneys, judges, and prosecutors, “Flagrant Conduct” is a detailed account of the 2003 landmark case of Lawrence v. Texas, in which the U.S. Supreme Court overturned its 1986 decision in the “Bowers v. Hardwick” sodomy case, making same-gender sexual activity legal throughout the country.

I remember this case vividly. A bogus call to the Houston, Tex. police from a prying neighbor about an alleged burglary resulted in the police entering the home of John Lawrence and Tyron Garner. The men were allegedly engaging in consensual sex. Reports on what the officers saw vary widely, with one officer reporting that the men were not even in the same room. The men were arrested and held overnight in jail. They were charged with violating the state’s anti-sodomy law. Both men pleaded “no contest” to the charge.

The man who called the police to report a domestic disturbance, Robert Eubanks, was later charged with filing a false police report and spent 15 days in jail.

Writing in favor of the ruling, Justice Kennedy stated:

“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
It was great to awake on the morning of June 27, 2003 to read the headlines stating that the highest court of this land struck down the Texas law that had criminalized sexual relationships between consenting adults. The Supreme Court’s 6-3 decision was momentous — especially given the conservative composition of the court and the reactionary times in which we resided.

Seeing photos of John Lawrence and Tyron Garner giving the nation a victory smile signaled a shift, at least legislatively, in protecting the private lives of lesbian, gay, bisexual, transgender, and queer (LGBTQ) Americans. But for some Americans the photo of Lawrence and Garner was disturbing, and not just because they were two gay men. The silent issue in the “Lawrence v. Texas” case was race. While race was not on trial, it was certainly the elephant in the room. The interracial component of Garner’s and Lawrence’s relationship disgusted some folks — black and white — just as much as, if not more than, their homosexuality. Many have speculated that the false call to the police was motivated by racism.

For many of these same Americans, this victory was seen as a signed decree sanctioning sexual depravity. “Newsweek” reported on its “ick factor,” the revulsion some heterosexuals feel toward the way we LGBTQ people engage in sexual intimacy. (Obviously, the “Will & Grace theory” — named for the 1998-2006 television sitcom featuring two gay characters, and according to which the most important indicator of supporting LGBTQ civil rights is whether one knows, has frequent contact with, or frequently sees someone who is LGBTQ — did not apply to such people.)

Although Carpenter successfully conveys the fact that the legal heart of “Lawrence v. Texas” was the issue of privacy and the right of consenting adults — heterosexual and LGBTQ — to feel safe from unwarranted intrusions into our homes by the government, many still feel that the moral soul of the issue was the belief that an act of sodomy is an abomination to God.

Sodomy was a crime defined, according to 18th-century British commentator William Blackstone, as “not fit to be named.” And sodomy laws once targeted both homosexuals and heterosexuals.

The idea of sodomy is rooted in Christian theology. The anti-sodomitic theological tradition derives from a homophobic and misogynistic reading of the Sodom and Gomorrah narrative in Genesis 19. As one of the most frequently quoted passages of scripture used to argue for compulsory heterosexuality, the Sodom and Gomorrah narrative has become authoritatively damaging not only to LGBTQ people but to women, as well, because women are the real victims in the text, and LGBTQ people are the scapegoats who are read into the text.

Overturning Texas’ sodomy law marked a new era not only for LGBTQ people but for all Americans. The sanctity of our private sexual lives must be protected, because the issue of our private lives is a matter of justice not only to be argued openly in the courtrooms but to be acted out privately in our bedrooms.

But Carpenter makes an assertion that may be a melodramatic twist in this landmark case: he says that the plaintiffs, John Lawrence and Tyron Garner, weren’t lovers. Carpenter claims that in a drunken act of jealous rage on the night of Sept. 17, 1998, Tyron Garner’s white lover, Robert Eubanks, phoned police warning that a black man was “going crazy with a gun” in John Lawrence’s apartment.

As New Yorker writer Dahlia Lithwick writes in her article “Extreme Makeover: The Story Behind the Story of Lawrence v. Texas,” a review of Carpenter’s book:

“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.”
Carpenter asserts that when police arrived they arrested Garner because he was African American, and Lawrence because it was his apartment.

Both Lawrence and Garner have died, but their landmark case will live on in legal perpetuity. What won’t be remembered about them that Carpenter’s “Flagrant Conduct” reminds us is that they were accidental plaintiffs with little to lose in admitting that they violated Texas’s sodomy laws.

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