March 6, 2012
By Jacob Combs
This week’s New Yorker has a great article by Slate’s excellent legal analyst, Dahlia Lithwick, about ‘the story behind the story’ of Lawrence v. Texas, the 2003 Supreme Court decision that invalidated the state sodomy laws that remained on the books in parts of the U.S. The events that led up to the court case that would become Lawrence are almost as well known as the decision itself: responding to a 911 call about a crazy man with a gun, Houston police officers burst into the apartment of John Geddes Lawrence and caught him in flagrante delicto with his lover, Tyron Garner. The two were charged under and then challenged Texas’s sodomy law, leading to a sweeping Supreme Court opinion in which Justice Anthony Kennedy not only acknowledged gay and lesbian individuals’ right to personal sexual privacy, but also their right to engage in intimate relationships, writing, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”
The only thing is, that’s not really what happened. In her New Yorker piece, Lithwick reviews Dale Carpenter’s new book “Flagrant Conduct,” a painstaking piece of research that aims to explore the personal lives of the Lawrence defendants and recreate the situation that led up to the arrest. Based on his interviews, Carpenter discovered, the famous backstory to the Lawrence case is in fact both more ambiguous and less dramatic. Garner and Lawrence weren’t lovers, before of after the case; in fact, on the night of the arrest, Garner was with his actual lover, Robert Eubanks, at Lawrence’s house, along with a possible fourth man. It was Eubanks, jealous of the attention he thought Garner was showing to Lawrence, who made the anonymous call to police about the gun. What’s even more surprising is that there may not have been any sex. The police officers who arrested the two men in 1998 never agreed on what they saw in the apartment: one reported seeing the two men having anal sex, another said he saw oral sex, and the other two said they saw no sex at all.
But no matter what the truth of that September night in 1998 may be, the real story of Lawrence v. Texas is the brilliant case that the lawyers who chose to represent the two men devised and argued successfully all the way to the Supreme Court. As Lithwick points out, the gay rights advocates who were still stinging from the Supreme Court’s defense of sodomy laws in Bowers v. Hardwick knew how difficult it would be to find another test case to challenge the Texas statute. Lawrence presented an excellent opportunity when it came to the law; what it didn’t present were the perfect plaintiffs. Lawrence and Garner were both lower-middle class and had had personal problems in the past. As Lithwick writes, “They were not the type to tug at judicial heartstrings.”
So the lawyers came up with a clever way of reframing the entire case: they focused on the law and not the individuals. They asked the court to respect the plaintiffs’ personal privacy, urged Lawrence and Garner to avoid speaking to the press, and spent their time in court focusing on the unfair and unconstitutional way that sodomy laws were enforced so that they targeted gay couples. During oral arguments, the district attorney who attempted to defend the law before the Supreme Court had trouble coming up with a single reason why the law should stand.
Unlike Lawrence, the Prop 8 trial not only provides the opportunity for a great legal case, it presents great plaintiffs, too. Kristin Perry and Sandra Steir are a committed couple raising four children in Berkeley; Paul Katami and Jeff Zarrillo, who live in Burbank, are eager to start a family of their own. These four plaintiffs show that Prop 8 is not only a law that has no rational governmental justification that benefits society, it in fact harms the state of California by discriminating against the very couples and families that could strengthen and contribute to society if their unions were fully recognized.
In closing her New Yorker piece, Lithwick asks, “Does it matter that, in Justice Kennedy’s stirring meditation on privacy and dignity and the “manifold possibilities” of liberty, the truth of the non-relationship between the non-lovers John Lawrence and Tyron Garner was lost? Does it matter that our collective memory locks the two men together in a mythic embrace?”
No. As important as they are, the plaintiffs of the great civil rights cases in our nation’s history, from Oliver and Darlene Brown to Mildred and Richard Loving to John Lawrence to Kristin Perry, are representatives of a much larger class of Americans: those who history has marked out as less than others, but who changing hearts and the power of the law have brought (or in the case of Prop 8, are bringing) into the fold of full, true equality. John Lawrence and Tyron Gardner may not even have had sex on that September night, but their very existence as individuals who were victimized by the law rather than protected by it, has made them a part of history.