This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
When the Supreme Court decided in Lawrence vs. Texas in 2003 that laws prohibiting sexual acts between members of the same sex were unconstitutional, many Americans thought that our country was finally emerging from the dark ages. Now, during an election cycle in which there is active debate over the right to contraception, the debates over sodomy laws sound completely radical.
Dale Carpenter's excellent new book, Flagrant Conduct: The Story of Lawrence v. Texas is not only an in-depth study of the complicated background of the case, but also a highly informative, detailed, even thrilling account of how the Supreme Court arguments reshaped American law, possibly even inadvertently leading to the legalization of same-sex marriage.
Carpenter, a professor at the University of Minnesota Law School who has been involved with lesbian, gay, bisexual and transgender legal issues for decades, has created two interwoven narratives. The first explains how, in 1998, the lives of three gay men, as well as four police officers, converged one drunken night in Houston during an arrest for sodomy an act that may never have happened that started a case that became "the most important gay civil rights case ... in American history."
The second is about how the nine jurists, women and men of varying, often clashing political and judicial opinions, argued, squirmed, joked and bickered among themselves and the lead attorneys not only about the constitutionality of same-sex sexual activity but, more important, about the role and influence of traditional morality and sexuality in the U.S. legal system.
Carpenter's opening chapters read like a 1950s pulp novel crossed with an episode of "Desperate Housewives." Robert Eubanks and his African American lover, Tyron Garner, were visiting John Lawrence in his apartment. As the increasingly drunken evening wore on, Eubanks, angry at what he perceived as flirting between the other two, went to an outside pay phone and called the police claiming there was a "black man with a gun" in Lawrence's apartment. The police arrived and arrested Garner and Lawrence for sodomy.
We will never know what happened: All of the eyewitness police reports were wildly inconsistent with one another, and Lawrence and Garner claimed there was no sexual activity occurring at all. Carpenter speculates that the only reason the police suspected Garner and Lawrence of even being gay was because of the sexually explicit nude drawings of James Dean that hung in Lawrence's bedroom.
While Dean's sexually aroused image makes only a fleeting appearance, it resonates throughout the narrative. His rebellious attitude animates the courtroom drama. It is here that Carpenter moves into John Grisham territory as a group of rebels with a very good cause local Houston LGBT activists and lawyers as well as the national LGBT rights advocacy group Lambda Legal Defense Fund mount their battle against not only the Texas law but all existing state sodomy laws. Carpenter's tale of the arrest and how it affected these men's lives is fascinating, but his recounting of the Supreme Court hearings is a fine piece of dramatic reporting that sharpens the drama and presents the legal issues and personalities with clarity.
Carpenter has a finely tuned ear for humor, and his descriptions of Justice Antonin Scalia are often outright funny. At one point during the arguments, Scalia worries, in a far-fetched reach, that overturning sodomy laws would lead to overturning all rape laws. He later, in attempting to describe homosexual activity, is at a loss for words and finally sputters that the state has the right to consider it, "more ... more ... more ... odious." There is no doubting, in Carpenter's account, that Scalia's mind was continually preoccupied with the fundamentals of homosexual sex. And, to some degree, rightly so. Constitutional issues aside, this was a case about the freedom to freely choose sexual activity.
By the end of his book, Carpenter celebrates the 6-3 ruling in favor of Lawrence and Garner. The court, in essence, declared sodomy laws unconstitutional because they impinged on personal relationships.
But it is with more relish that Carpenter savors Scalia's fulminating dissent which Scalia, in a highly unusual move, read from the bench to show his pique that stated, "Today's decision dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions." Carpenter suggests that, ironically, perhaps both the ruling and the dissent on Lawrence vs. Texas were right.
Flagrant Conduct: The Story of Lawrence v. Texas is a great read, but it is also a stirring reminder that while the American legal system does sometimes eventually work, there are always human lives involved. In 2000, Eubanks was beaten to death, possibly in a gay bashing, close to the apartment he shared with Garner. In 2006, Garner died, probably of tuberculosis or meningitis, in poverty. His family had no money to bury him, and he was cremated by the state. Lawrence lived in Houston with a lover and the man's children from a former marriage until his death in November. With this book, Dale Carpenter brings us closer to the glory of the law and the frailty of human life.