Apr 30 2012
Dale Carpenter’s new book, Flagrant Conduct: The Story of Lawrence v. Texas tells the story of the case, 539 U.S. 558 (2003), that struck down remaining state laws that criminalized consensual same-sex sexual activity and overturned Bowers v. Hardwick, 478 U.S. 186 (1986).
It is a remarkable story: how the unlikely 1998 arrest of two men for having anal sex in a private bedroom–an act that, Carpenter shows, the defendants almost certainly didn’t commit– resulted in the most important gay rights victory in American legal history.
The book has been compared to other classics that provide a definitive account of other landmark cases: Anthony Lewis’ Gideon’s Trumpet (Gideon v. Wainwright) and Richard Kluger’s Simple Justice (Brown v. Board of Education). The comparison seems appropriate, as it is hard to imagine another book telling this story in a fuller or more compelling way.
Carpenter interviewed many of the people involved in the case and writes in detail about all of the principals: John Lawrence and Tyron Garner (the defendants who pleaded “no contest” while contending they had not committed the act constituting a crime under state law); the arresting officers (who gave conflicting accounts about whether Lawrence and Garner were engaged in sex, or if so, the kind of sex they were having); the Houston activists and courthouse staff who knew enough to understand the potential importance of the charges; the lawyers on both sides of the case; the justice of the peace and appellate judges in the Texas state courts; and the justices of the U.S. Supreme Court in 2003.
One of the book’s great strengths is Carpenter’s skillful explanation how attitudes and assumptions rooted in political and religious views had a crucial impact at every stage of the case. He places the arrest of John Lawrence and Tyron Garner in the context of homophobic political and religious culture of Houston. He shows how partisan politics lead to the reversal of an initial appeals court panel decision overturning the conviction of Lawrence and Garner; that decision was reversed en banc by the appellate court, under heavy political pressure from the state Republican party. Ironically, this anti-gay decision kept the case alive, thus creating the opportunity for an historic gay rights victory at the Supreme Court. And Carpenter explains how the Justices greater familiarity with the lives of gay people, including a significant number among their judicial clerks, created a dramatically different environment when Lawrence was argued in 2003 than when Bowers was decided 17 years earlier.
The chapter on the oral argument, “Mismatch at the Supreme Court,” could be read profitably by anyone interested in appellate advocacy. It brings the transcript to life, with observations about the styles of the Justices (notably Kennedy, Souter and Scalia), the lawyers’ strategies in responding to challenging questions, and a more complete account of the mood in the courtroom than has appeared in print before. It also shows how busy local prosecutors (largely unassisted except by amicus curiae briefs that may have harmed their position more than helped) were overmatched by a coordinated effort from Lambda Legal and its allies among LGBT academics, public interest legal organizations and crucially, Paul Smith, a veteran appellate specialist from Jenner & Block.
In its final sections, Carpenter describes the legal landscape after Lawrence. As suggested by the book’s subtitle–”How A Bedroom Arrest Decriminalized Gay Americans”–the impact of the decision went far beyond rarely enforced sodomy laws. By defining “sodomy” in a way that classified millions of LGBT Americans as presumptive criminals, these laws had an impact in cases ranging from child custody to employment discrimination to professional licensing. And as Justice Scalia predicted in his dissenting opinion, the ruling striking such laws down may have opened to door to a future constitutional ruling on same-sex marriage.
Before this book, Carpenter, a professor at the University of Minnesota Law School, was perhaps best known for his regular posts on The Volokh Conspiracy, the popular blog on law and public affairs. Now, that is likely to change.
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