The state of gay rights in the United States is changing so rapidly that we
forget sometimes how recently major advances were made. It was only in 2003, for
instance, that the Supreme Court struck down state bans on sodomy in the case of
Lawrence v. Texas. Dale Carpenter's book Flagrant Conduct
looks at how that case came to the Supreme Court, and how it was won. It's a
fine piece of journalism, and it's entertaining reading.
John Lawrence and Tyson Garner were arrested by Harris County (TX) police officers in 1998 when they were discovered having sex in the bedroom of Lawrence's apartment. They'd been summoned by a pissed-off friend of Garner's, who had reported "a crazy black man waving a gun around." Texas was among the states that still had sodomy laws on the books, and its law specifically targeted gay sex; anal and oral sex was perfectly legal for heterosexuals.
Lawrence and Garner were nobody's idea of the dream clients for such a case. They were lower-middle class, an interracial couple separated by about 25 years in age, not in a long-term relationship (not much more than casual acquiantances, really, and Carpenter makes a strong case that it's unlikely they were even having sex in the first place) -- not at all the pair of handsome, charming men with perfect smiles that you'd love to have representing you. But cases of people being arrested in their home for violation of such laws were so rare that when news of the case got into the Houston gay rights community, they knew this was as good a case as they were ever likely to get.
And everyone involved understood that; one of the fascinating parts of watching the case make its way through the Harris County and Texas courts is the way in which judges and prosecutors help the case along; there were half a dozen people along the way, and had any one of them declined to prosecute or decided to throw the case out of court, it never would have reached the Supreme Court. In one case, the judge and prosecuting attorney agreed to a last-minute request from the defense to increase the amount that Lawrence and Garner were being fined (the charge was a misdemeanor under Texas law, carrying no jail time) so that the fine would be above the minimum threshold required for an appeal.
Carpenter never suggests that anyone was actually trying to throw the case, but the legal mismatch when the case did arrive at the Supreme Court was striking. The defense had quickly been taken over by the activist community, who hired the best civil rights attorneys in the country to argue the case; Texas was represented by the Harris County district attorney, who had never argued before the Supreme Court, and had hired no outside lawyers to assist him in his preparation.
The Supreme Court overturned sodomy bans by a 6-3 vote, and were it not for the idiosyncratic legal philosophy of Clarence Thomas, it might have been an even bigger win. Thomas wrote his own dissent in which he said he thought the law was foolish, and that he would vote to overturn it were he a legislator, but that he could not vote to overturn it as a Justice because he could find no Constitutional grounds on which to do so. (Thomas is a strict literalist, and doesn't go along with the notion that privacy is protected by the Constitution.)
Carpenter brings his characters to life in a vivid fashion, particularly John Lawrence, whose increasing politicization is one of the book's more interesting subplots. He does a particularly fine job of describing the arguments before the Supreme Court, and of analyzing how the Justices' questions reveal their thinking.
John Lawrence and Tyson Garner were arrested by Harris County (TX) police officers in 1998 when they were discovered having sex in the bedroom of Lawrence's apartment. They'd been summoned by a pissed-off friend of Garner's, who had reported "a crazy black man waving a gun around." Texas was among the states that still had sodomy laws on the books, and its law specifically targeted gay sex; anal and oral sex was perfectly legal for heterosexuals.
Lawrence and Garner were nobody's idea of the dream clients for such a case. They were lower-middle class, an interracial couple separated by about 25 years in age, not in a long-term relationship (not much more than casual acquiantances, really, and Carpenter makes a strong case that it's unlikely they were even having sex in the first place) -- not at all the pair of handsome, charming men with perfect smiles that you'd love to have representing you. But cases of people being arrested in their home for violation of such laws were so rare that when news of the case got into the Houston gay rights community, they knew this was as good a case as they were ever likely to get.
And everyone involved understood that; one of the fascinating parts of watching the case make its way through the Harris County and Texas courts is the way in which judges and prosecutors help the case along; there were half a dozen people along the way, and had any one of them declined to prosecute or decided to throw the case out of court, it never would have reached the Supreme Court. In one case, the judge and prosecuting attorney agreed to a last-minute request from the defense to increase the amount that Lawrence and Garner were being fined (the charge was a misdemeanor under Texas law, carrying no jail time) so that the fine would be above the minimum threshold required for an appeal.
Carpenter never suggests that anyone was actually trying to throw the case, but the legal mismatch when the case did arrive at the Supreme Court was striking. The defense had quickly been taken over by the activist community, who hired the best civil rights attorneys in the country to argue the case; Texas was represented by the Harris County district attorney, who had never argued before the Supreme Court, and had hired no outside lawyers to assist him in his preparation.
The Supreme Court overturned sodomy bans by a 6-3 vote, and were it not for the idiosyncratic legal philosophy of Clarence Thomas, it might have been an even bigger win. Thomas wrote his own dissent in which he said he thought the law was foolish, and that he would vote to overturn it were he a legislator, but that he could not vote to overturn it as a Justice because he could find no Constitutional grounds on which to do so. (Thomas is a strict literalist, and doesn't go along with the notion that privacy is protected by the Constitution.)
Carpenter brings his characters to life in a vivid fashion, particularly John Lawrence, whose increasing politicization is one of the book's more interesting subplots. He does a particularly fine job of describing the arguments before the Supreme Court, and of analyzing how the Justices' questions reveal their thinking.
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