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The case that decriminalized being gay: Flagrant Conduct author sheds light on landmark fight

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John Lawrence, left, and Tyron Garner
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Flagrant Conduct takes an indepth look at the Houston case that led to the landmark Supreme Court decision overturning the Texas sodomy law.
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Author Dale Carpenter practiced law in Houston in the 1990s.

Last week, when Vice President Biden and then President Obama voiced their support for same-sex marriage, it set off a slew of media analysis about the nation’s rapidly changing views on the issue and the question of who or what is responsible. From the fact that more people have openly-gay family, friends, neighbors or co-workers to television shows like Will & Grace and Glee, many different influences for this dramatic change in individual and public perceptions have been offered.

No one, however, seems to have cited the contribution of John Lawrence and Tyron Garner, two ordinary Texans whose arrest on Sept. 17, 1998 by Harris County sheriff’s deputies led to a Supreme Court decision that homosexual conduct laws across the country are unconstitutional and thereby essentially decriminalizing being gay. 

 “One of the things I wanted to do with this book is show the human side of the law and how the law has an impact on the lives of real people."

 University of Minnesota Law School professor and former Houstonian Dale Carpenter chronicles that journey from the late-night Houston arrest to Supreme Court case in his new book Flagrant Conduct: The Story of Lawrence v. Texas. Before his trip back home to Texas for an appearance at Brazos Bookstore on Tuesday Carpenter spoke to me about the book and the legal and cultural ramifications of the Lawrence case.

Carpenter wrote Flagrant Conduct with the “definite intention that it not be a book for legal professionals alone.” He wanted it to be “accessible to a broad readership.” 

Long litigation

A central way Carpenter accomplishes this accessibility is to never study Lawrence v. Texas as an abstraction. The book never allows the reader to forget Lawrence was John Lawrence, a real man arrested in his own home simply for being gay, nor forget Tyron Garner, whose name was dropped early on when the cases became consolidated into one appeal.

“One of the things I wanted to do with this book is show the human side of the law and how the law has an impact on the lives of real people. In this case you have two men dragged out of a private home in front of their astonished neighbors in the middle of the night, very likely for false reasons. And you have two men who were not connected to any civil rights movement, who were not part of any cause, but became part of a cause through their willingness to to take on the burdens of five years of litigation and attention to their lives,” Carpenter explained.

As Flagrant Conduct recounts the journey of Lawrence v. Texas through the Texas courts to the Supreme Court and as the specifics of the arrest, and the men arrested, receded from public focus, the book tells the stories of the advocates, attorneys, and judges who become involved with the case along that way.  

In our discussion about why it was so important to stay close to the real lives tangled up in the case, Carpenter said “Nothing is inevitable in these cases. I wanted to show how much of the case was contingent — and it was contingent — upon the actions of real human beings, on prosecutors and lawyers, and the defendants themselves.”

One of the many revelations in Flagrant Conduct is that while John Lawrence and Tyron Garner were arrested under the Texas “homosexual conduct” statute for engaging in “deviate sexual intercourse with another individual of the same sex,” an “uncommonly silly” law even according to Justice Clarence Thomas, and as six of the other Justices would find, an unconstitutional law, Lawrence and Garner were most likely not actually guilty of committing that crime.

By going step-by-step over the circumstances of that night, the statements of Harris County sheriff’s deputies on the scene, and Lawrence and Tyron’s own recollections, Carpenter makes the very strong case that the men were not actually having sex.

 “I think we owe it to history to get the facts right, and I think we owe it to these men to allow them to tell their part of the story. And I think we owe it to our constitutional system to show how this was not simply the case of a bad law."

 When I asked Carpenter why it was important now in 2012, after the deaths of both Garner then Lawrence, that the truth to finally be known, he replied, “I think we owe it to history to get the facts right, and I think we owe it to these men to allow them to tell their part of the story. And I think we owe it to our constitutional system to show how this was not simply the case of a bad law."

Elaborating on this idea, he went on to say, “It was the case of a bad law that gave permission to law enforcement authorities to falsely arrest two men. It shows, in other words, how the law did not simply regulate specific sexual acts but in fact was used to stigmatize and demonize an entire group of people, simply for being gay.

So it was not a homosexual conduct law, although that is what it was called. It was actually a homosexual status law. It made the status of being gay effectively illegal in Texas.”

Heartbreaking passage

The two men’s stories are not particularly happy ones. Perhaps one of the most heartbreaking passages in the book are those describing Garner’s death and the fact that his family was not able to raise enough money to pay for cremation or a funeral. Carpenter offered one bit of solace, saying, “His legacy remains this decision and that is a story of triumph in the end. There is the important human dimension of this and than there is the ongoing legacy of this.”

Along with the tragedies, Flagrant Conduct highlights so many of the ironies, absurdities and hypocrisies of the case that a reader might need to put down the book for a moment, not knowing whether to sob or laugh uncontrollably.

The chapter recounting the oral arguments in front of the Supreme Court in March 2003 is particularly dramatic and rich with details. Carpenter was in the audience that day, having submitted an amicus brief in the case. Of the experience, he said “The memory of it was burned into me.”

So can we trace current public opinion about issues like same-sex marriage directly or indirectly back to an arrest one late summer Houston night in 1998?

Carpenter thinks indirectly we can: “In the sense that the decision helped to remove some of the remaining stigma against gays and lesbians that they are simply defined by criminal activity, that the of love of two people of the same sex is just a form of crime. That by itself is an important declaration in the law and in our society. . .”

While Carpenter will not make any predictions about what happens when and if a same-sex marriage case makes its way to the Supreme Court, he will say, “if that happens I do think one of the areas of serious argument will be the meaning of this decision and whether this decision means that there is no longer a constitutional acceptable distinction between same-sex and opposite-sex couples.”

The Brazos Bookstore appearance will be a “homecoming” for the book and several of the Houstonians involved early in the case are scheduled to be there, including David Jones, Mitchell Katine, Cheryl Roppolo, and Ray Hill.

Carpenter is willing to make this one predict: “I think this will be the best, richest of the events anywhere in the country because this is where the case was born.”

Dale Carpenter will appear at Brazos Bookstore Tuesday at 7 p.m. to discuss and sign copies of his book, Flagrant Conduct: The Story of Lawrence v. Texas.

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