Unlike Plessy, which hardened over decades into an ugly barricade of intolerance, Bowers survived for only seventeen years. The Court reversed it in the 2003 case Lawrence v. Texas, by far the most important gay rights decision issued by a court in this country. The Court threw out the convictions of two men under the Texas homosexual sodomy law, finding that the law—and, implicitly, all others like it around the country—violated the Fourteenth Amendment’s due process clause. Notably, Justice Anthony Kennedy’s opinion went a step further than Chief Justice Earl Warren’s in Brown. Whereas the Brown Court—no doubt in an effort to ensure a unanimous decision—took pains to avoid saying that Plessy had been wrong from the beginning, the Lawrence Court swept all the litter from the table. “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Dale Carpenter, a libertarian law professor at the University of Minnesota and a specialist in gay civil rights law, tells the history of Lawrence in Flagrant Conduct. He has written an exceptional book, in the tradition of Anthony Lewis’s Gideon’s Trumpet (1964), expertly guiding the reader from the moment of the arrest through the culminating oral argument in the Supreme Court. Flagrant Conduct is also a moving and deeply humane study of the law’s effect on ordinary people. One of Carpenter’s best passages recounts the way Justice Kennedy’s voice wavered as he announced the reversal of Bowers, and the way gay men and women wept openly in the courtroom as he uttered the words. “As long as Lawrence shielded them,” Carpenter writes, “never again would gay men and lesbians be presumptive criminals because of their sexual orientation.”
The case began in Houston, where the gay rights movement had suffered a calamitous setback in 1985, the year before Bowers was decided. In June 1984 the Houston City Council passed a measure barring discrimination on the basis of sexual orientation in city employment. The vote prompted a backlash among religious conservatives, who advanced a referendum to repeal the law. Advocacy groups published lurid screeds claiming that “half of all sex murderers are homosexuals,” and stating, “Homosexuals are not merely parasites—they are more apt to be predatory…. Homosexuality ought to be suppressed with all deliberate speed, lets [sic] get on with it.” Wittingly or not, the authors of this ghastly pamphlet had invoked famous language from Brown, which ordered Southern schools to desegregate “with all deliberate speed,” thereby inviting resistance and foot-dragging. Houston’s anti-gay referendum was approved by a devastating margin of 80 to 20 percent in January 1985.
Against this backdrop appear the main players in Lawrence v. Texas, which began with an arrest on September 17, 1998. John Lawrence was a 55-year-old Navy veteran with few ties to the gay community. He was a white, blue-collar medical technician who lived in an apartment complex in a high-crime area of Houston; he had a criminal record that included murder-by-automobile and several arrests for drunk driving. A friend described him as “more like a small-town banker than a social activist.” Tyron Garner was an African-American in his early 30s who was shy and passive and had trouble holding down a job. Garner also had a criminal record, which included drug possession, drunk driving and assaulting a police officer.
On the night of September 17, Lawrence, Garner and Garner’s boyfriend, Robert Eubanks, were spending the evening together at Lawrence’s apartment. Garner and Eubanks were planning to move in together, and Lawrence had given them some furniture he had been looking for an opportunity to replace. After returning from dinner, the three watched TV together and began drinking—especially Eubanks, who had a history of unstable behavior. For reasons that remain obscure, Eubanks began to grow belligerent. He grabbed change from a drawer and announced that he was going to the vending machines for a soda. He left the apartment and went to a pay phone downstairs, where he placed a call to the Harris County Sheriff’s Office, falsely claiming that there was “a black male going crazy with a gun” in Lawrence’s apartment. Eubanks later admitted to the police that he had made up the story.
Four officers arrived on the scene and approached Lawrence’s apartment with their guns drawn. The apartment door was ajar. They opened it and loudly announced their presence. (The lead officer on the scene, Joseph Quinn, boasted to Carpenter that he had the largest internal affairs file in the entire police department. He had been reprimanded for such gallantries as choking a woman and violently handcuffing two mothers who had parked illegally while waiting to pick up their children from school.) Both Quinn and a secondary officer, Donald Tripps, believed homosexuality was immoral and at odds with the Bible; both opposed gay marriage. The officers claim there was no reaction when they announced themselves at the threshold to the apartment. They proceeded inside, and said that when they entered the bedroom they encountered Lawrence and Garner having sex.
Here the parties’ stories diverge sharply. One of the most fascinating aspects of Flagrant Conduct is Carpenter’s painstaking reconstruction of each player’s version of events, and his conclusion that Lawrence and Garner never actually had a sexual encounter. Both men adamantly deny ever having been intimate with each other, or being involved in a romantic relationship, and Lawrence claims that they were in different rooms when the police arrived. They contend that, noticing gay art on the wall, the officers deduced their homosexuality and used epithets like “fag” and “queer” against them. The officers, by contrast, claim that they caught the two men in flagrante delicto. Quinn contends that Lawrence looked him in the eye and continued having anal sex with Garner for over a minute after officers had entered the bedroom—even though the officers ordered them to stop and pointed guns at them. According to Quinn, the officers had to pull the men apart. The other officer to enter the bedroom, William Lilly, could not recall whether the men were having oral or anal sex—“sexual acts that seem hard to confuse,” writes Carpenter—and says they broke off as soon as officers entered the bedroom.
The officers’ version of events seems implausible, for several reasons. First, it makes little sense for Lawrence and Garner to decide to have sex for the first time in the few moments it would take for Eubanks to go to the vending machine and return—Eubanks’s declared purpose for leaving the apartment. Second, Quinn’s account, which is inconsistent with Lilly’s, trades in stereotypes of hypersexed gay men: it’s just like a pair of horny queers to keep screwing after the cops show up. Carpenter rightly notes that this account smacks of “a conscious embellishment” by Quinn that seems “designed to put Lawrence and Garner in the worst possible light.” Carpenter’s skepticism is consistent with the bigoted comments made by the officers. Lilly told Carpenter in an interview that the apartment “smelled of gay”; Quinn described Garner as a “naggy little bitch.” He also expressed concern at coming into contact with the men’s bodily fluids.
After a telephone consultation with the District Attorney’s office, Quinn decided to arrest the men for violating the Texas homosexual sodomy law. Carpenter suggests that Quinn was perhaps the only officer in the sheriff’s department who would arrest people for an obscure, ticketable offense, one on par with a traffic violation. One explanation is that Lawrence, who had been drinking, reacted loudly and defiantly, refusing to cooperate and calling the officers storm troopers and thugs. He was eventually handcuffed and dragged from the apartment in his underwear—by Lawrence’s account, because he was not allowed to get dressed. He and Garner spent the night in jail. They pleaded not guilty at their arraignment and were set free after being given a future court date.
In a strict legal sense, what actually happened on the night of September 17 no longer matters. The lawyers who would soon take charge of the case had what they needed: an arrest based on eyewitness accounts, however dubious, that two men had violated a state sodomy law. On their lawyers’ advice, Lawrence and Garner would soon change their pleas from not guilty to “no contest,” refusing to admit the charges but refusing to deny them, either. This allowed them to challenge the Texas law’s constitutionality. Had they protested their innocence and convinced a prosecutor or judge, the charges might have been dropped or dismissed, impeding any attack on the statute. Lawyers at Lambda Legal had been waiting for just such a case, having run into “standing” problems in other attempts to challenge state sodomy laws. Most courts found that only someone who had been arrested for violating such a law had legal standing to challenge it, and such arrests were rare.
Nevertheless, Carpenter establishes that the actual events in Lawrence’s apartment are critical to understanding the political and cultural significance of the case. If Quinn and his deputies were lying, it only proves how prone such laws are to mischief and abuse. When laws regulate the private and consensual behavior of adults in their own home, “he said, she said” disputes will likely follow. And police officers’ accounts, rather than those of “presumptive criminals,” will likely be believed. In addition, the broad discretion enjoyed by police officers makes them dangerous in encounters with members of a class that many officers despise. In Carpenter’s words, “the discretion built into law enforcement may have been abused by authorities harboring prejudice against the class of persons targeted by the law.”
Whatever in fact happened that night, the machinery of the case was now whirring into motion. The matter found its way into expert hands in an improbable and dramatic way. One of the file clerks for the justice of the peace before whom Lawrence and Garner initially appeared happened to be a closeted gay man. He was shocked to see a document charging two people with “homosexual conduct”—behavior he had not even known was criminal. His partner, also closeted, was a sergeant in the Sheriff’s Office who worked alongside the arresting officers. The clerk and his partner mentioned the arrest that night at a gay bar. The bartender, a gay rights activist, apprehended its significance and contacted other members of the gay community, who eventually saw the case into the hands of Lambda, which led the defense. Without the file clerk, Lawrence and Garner might have simply paid their fines and moved on with their lives.
There is a painful history in gay civil rights law of such serendipitous encounters with the closet. The Supreme Court decided Bowers in 1986 by a vote of 5 to 4. The deciding justice was the moderate Virginian Lewis Powell, whose views of the case shifted, eventually leading him to concur in the majority opinion. Powell, who had never met an open homosexual, struggled to understand the behavior at issue and the true stakes of the case. Unbeknownst to him, one of his law clerks was gay. Cabell Chinnis and Powell had several awkward conversations in chambers in which Chinnis tried to explain the mechanics and metaphysics of homosexuality to his distinguished and sheltered boss. At one point Chinnis nearly declared his own homosexuality. He did not, and Powell voted to uphold Georgia’s sodomy law. The encounter has haunted Chinnis ever since.
If the arresting officers were a caricature of bigoted Texas machismo, many of the other players in the Texas legal system were a pleasant surprise. One defense attorney swears that the trial judge winked at him, showing tacit support even as Supreme Court precedent compelled him to uphold the convictions. The main prosecutor representing the Harris County District Attorney’s office, Bill Delmore, was decent and workmanlike about the case, never stooping to crass bigotry or gaybaiting tactics. He explained that he defended the law because that is the district attorney’s job—regardless of one’s opinion. Carpenter surmises from interviews that Delmore recognized the importance of the case and took pains not to obstruct it at key procedural points. For instance, when the defense realized that the justice of the peace had levied fines on the defendants too small to preserve the right to appeal, Delmore (and the judge) acceded to the defense’s unusual request for larger fines.
The case proceeded through the Texas court system. The trial court accepted the defendants’ pleas of no contest and rejected their constitutional arguments. An all-Republican panel of the Texas appellate court surprisingly voted to reverse and throw out the convictions on state constitutional grounds, but was quickly overturned by the en banc court after sharp pressure from the state GOP. (Judges in Texas are elected rather than appointed.) The Texas Court of Criminal Appeals—in effect the state supreme court for criminal matters—declined a petition to hear the case. From there the defense appealed directly to the US Supreme Court.
The Ivy League attorneys in charge of the defense kept close watch over their blue-collar clients. (The chief Lambda attorney responsible for the case—its Thurgood Marshall, in Carpenter’s words—was Ruth Harlow.) They had their hands full. Lawrence, Garner and Eubanks were not poster children for a cause; they were ordinary people with imperfect and at times messy lives. Early in the case’s history, Garner was arrested for assault, a public relations disaster. In October 2000 Eubanks was bludgeoned to death, possibly in a gay-bashing incident. At every turn Lawrence and Garner seemed eager to declare their innocence of the charges, which was understandable but dangerous. Such protestations could undermine the straightforward factual account from Quinn’s police report that was essential to a successful appeal. Carpenter frequently reveals his ambivalence at the necessity in impact litigation of reducing real-life events to misleadingly simple legal narratives. He clearly realizes that lawyers must sometimes sacrifice the client in pursuit of the cause. Lawrence and Garner call to mind the faceless Norma McCorvey, in whose name Roe v. Wade was litigated. McCorvey famously switched sides, joining the pro-life cause in 1995.
The defense team argued that the Texas law deprived their clients of both equal protection and due process. The equal protection argument relied heavily on the Court’s 1996 decision in Romer v. Evans, written by Justice Kennedy. There the Court struck down as a violation of equal protection a Colorado constitutional amendment stripping gays of all legal protections; in the first sentence of the opinion, Kennedy quoted the dissent to Plessy v. Ferguson. But the defense also had to preserve the due process argument in order to allow the Court to revisit Bowers, which had been decided under that provision. Throughout, the team confined itself to minimalist, conservative, incremental positions, hoping not to frighten off swing justices Kennedy and Sandra Day O’Connor. They studiously avoided the topic of gay marriage. Their theme was to help the Court catch up to a society that broadly disapproved of sodomy laws, rather than have it lead society in new directions—a strategy criticized as timid by some in the gay community. On the other hand, pragmatism did seem in order: the lawyers were not writing a manifesto but trying to persuade a very conservative court to rule in their favor.
The DA’s office was hopelessly outgunned at the oral argument in March 2003. The new district attorney, Chuck Rosenthal, handled the case himself, even though he had never argued an appeal in any court, let alone the Supreme Court. The defense, by contrast, hired an experienced Supreme Court practitioner, Paul Smith of the elite law firm Jenner and Block, and held moots with the best minds in appellate law. Smith, himself an out gay man, had clerked for Justice Powell several years before the Bowers decision, and felt an extra pressure to undo his boss’s damage.
Some of Carpenter’s best pages cover the oral argument, a key aspect in Supreme Court litigation that is often lost in the shadow of the Court’s written decisions. An out-of-place Rosenthal breached decorum and squandered precious moments of his argument by asking opposing counsel and the audience whether anyone owned the wristwatch that had fallen to the floor next to the podium. Double-entendres abounded and set the audience to tittering: Justice Antonin Scalia mentioned flagpole sitting, no doubt intentionally, while the egg-headed Justice Stephen Breyer recoiled with a hurt expression after the audience giggled at his request for a “straight answer” from counsel. (Whispering to his colleague, Justice Clarence Thomas explained the joke.) Carpenter quotes Rosenthal attempting to answer one of Justice Kennedy’s confused and halting questions with a helpless, “I beg your pardon?” Justice Scalia—the villain in Carpenter’s story—compared gay sex to bigamy and described it as “odious.”
The Court issued its landmark decision on June 26, 2003. By a vote of 6 to 3, it struck down the Texas homosexual conduct law as unconstitutional. Five of the six justices in the majority voted to overrule Bowers and hold that the law deprived Lawrence and Garner of due process. The sixth, Justice O’Connor, filed a brief concurring opinion in which she refused to admit error in Bowers and instead maintained that the law violated only the equal protection clause. O’Connor did not explain her fidelity to Bowers, which smacked of pettiness and pride. Justice Scalia’s dissent—joined by Justice Thomas (who also dissented separately) and Chief Justice William Rehnquist—is a riot of disdain for gay people and their lives and aspirations. But not even Scalia’s shrill hysterics could eclipse the good news. In San Francisco, the giant rainbow flag that flies at the corner of Market and Castro streets was replaced with the Stars and Stripes. It was no longer illegal to be gay.
Situating Lawrence in the line of decisions that shield private, intimate conduct, the Court invoked such protected behaviors as the right to use contraceptives and the right to have children. Justice Kennedy’s language shows how far the Court had come since Bowers, and rewards the defense team’s clever tactics. Whereas the Court in Bowers considered the right of “homosexuals to engage in sodomy,” the Court in Lawrence discussed “intimate conduct” in the home, and the “liberty of the person.” Analytically, the opinion is somewhat thin: in a throwaway line toward the end, Kennedy writes that the Texas law furthers no legitimate state interest that can justify its intrusion into individuals’ private lives; usually an exploration of these points occupies pages and pages of a judicial opinion. Kennedy’s articulation of the standard also muddies the distinction between “rational basis” review, which affirms any law rationally related to a legitimate state interest, and more searching scrutiny usually applied to classifications based on gender or race. Scalia pounced on the murkiness, which no doubt will prompt future battles in gay rights cases.
Kennedy is often lampooned for his purple prose, and Lawrence no doubt thickens his portfolio, yet if he does nothing else, history will remember him for writing the decision in Lawrence. It at once too plainly aspires to grandeur and the wisdom of the ages, but at moments achieves exactly that—especially in the lines that close the opinion:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Nearly a decade on, Lawrence’s significance begins to come clear. Doctrinally, the case is a boost for the interpretation of due process that shakily underpins such decisions as Roe v. Wade. The longer a constitutional decision endures and serves as a foundation for other cases, the stronger it becomes. At the same time, one of the mysteries of the case, and one that Carpenter does not elucidate, is why the Court relied solely on due process, and did not also strike down the Texas law as a deprivation of equal protection. (A future study may have the answers, and in this sense Carpenter’s book at times feels premature: Flagrant Conduct reveals few behind-the-scenes peeks into the Supreme Court’s path to decision.) Given Kennedy’s reliance on the equal protection clause in Romer and Justice O’Connor’s preference for that path, the majority presumably had the votes for it.
The case also prefigures future legal battles about gay rights, particularly suits challenging state and federal laws against gay marriage. Justice Kennedy wrote opaquely that Lawrence “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”—to which Scalia retorted, “Do not believe it.” Scalia may be right insofar as Lawrence rejected the two main rationales for laws that discriminate based on sexual orientation: traditional concepts of morality and animus toward gay people. In the future the Court should have difficulty finding a “rational basis” for laws excluding gays from marriage. Justice Kennedy’s vote may prove decisive.
Above all, Lawrence reaffirms the critical role of courts in a democracy. The United States shredded itself during the Civil War, to emerge ever more committed to principles of equality and liberty. The Fourteenth Amendment, born of that war, is written in blood on fragile parchment. At key moments in our history, the Supreme Court has failed to embrace a vision of this country that fulfills those principles. Plessy represented such a moment. So too Bowers. Yet at other times the Supreme Court has proved itself the only branch of government bold and powerful enough to strike out against our most entrenched inequalities. The Texas sodomy law and the Fourteenth Amendment could not coexist in the same country. After Lawrence, they no longer do.