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Flagrant Conduct: The Story of Lawrence v. Texas
A 2012 New York Times Book Review Notable Book
"A real-life detective story that reveals the drama behind the scenes of a great Supreme Court victory for human rights." ―Linda Greenhouse No one could have predicted that the night of September 17, 1998, would be anything but routine in Houston, Texas. Even the call to police that a black man was "going crazy with a gun" was hardly unusual in this urban setting. Nobody could have imagined that the arrest of two men for a minor criminal offense would reverberate in American constitutional law, exposing a deep malignity in our judicial system and challenging the traditional conception of what makes a family. Indeed, when Harris County sheriff’s deputies entered the second-floor apartment, there was no gun. Instead, they reported that they had walked in on John Lawrence and Tyron Garner having sex in Lawrence’s bedroom. So begins Dale Carpenter’s "gripping and brilliantly researched" Flagrant Conduct , a work nine years in the making that transforms our understanding of what we thought we knew about Lawrence v. Texas , the landmark Supreme Court decision of 2003 that invalidated America’s sodomy laws. Drawing on dozens of interviews, Carpenter has taken on the "gargantuan" task of extracting the truth about the case, analyzing the claims of virtually every person involved. Carpenter first introduces us to the interracial defendants themselves, who were hardly prepared "for the strike of lightning" that would upend their lives, and then to the Harris County arresting officers, including a sheriff’s deputy who claimed he had "looked eye to eye" in the faces of the men as they allegedly fornicated. Carpenter skillfully navigates Houston’s complex gay world of the late 1990s, where a group of activists and court officers, some of them closeted themselves, refused to bury what initially seemed to be a minor arrest.
The author charts not only the careful legal strategy that Lambda Legal attorneys adopted to make the case compatible to a conservative Supreme Court but also the miscalculations of the Houston prosecutors who assumed that the nation’s extant sodomy laws would be upheld. Masterfully reenacting the arguments that riveted spectators and Justices alike in 2003, Flagrant Conduct then reaches a point where legal history becomes literature, animating a Supreme Court decision as few writers have done. In situating Lawrence v. Texas within the larger framework of America’s four-century persecution of gay men and lesbians, Flagrant Conduct compellingly demonstrates that gay history is an integral part of our national civil rights story. 8 pages of black-and-white photographs
"A real-life detective story that reveals the drama behind the scenes of a great Supreme Court victory for human rights." ―Linda Greenhouse No one could have predicted that the night of September 17, 1998, would be anything but routine in Houston, Texas. Even the call to police that a black man was "going crazy with a gun" was hardly unusual in this urban setting. Nobody could have imagined that the arrest of two men for a minor criminal offense would reverberate in American constitutional law, exposing a deep malignity in our judicial system and challenging the traditional conception of what makes a family. Indeed, when Harris County sheriff’s deputies entered the second-floor apartment, there was no gun. Instead, they reported that they had walked in on John Lawrence and Tyron Garner having sex in Lawrence’s bedroom. So begins Dale Carpenter’s "gripping and brilliantly researched" Flagrant Conduct , a work nine years in the making that transforms our understanding of what we thought we knew about Lawrence v. Texas , the landmark Supreme Court decision of 2003 that invalidated America’s sodomy laws. Drawing on dozens of interviews, Carpenter has taken on the "gargantuan" task of extracting the truth about the case, analyzing the claims of virtually every person involved. Carpenter first introduces us to the interracial defendants themselves, who were hardly prepared "for the strike of lightning" that would upend their lives, and then to the Harris County arresting officers, including a sheriff’s deputy who claimed he had "looked eye to eye" in the faces of the men as they allegedly fornicated. Carpenter skillfully navigates Houston’s complex gay world of the late 1990s, where a group of activists and court officers, some of them closeted themselves, refused to bury what initially seemed to be a minor arrest.
The author charts not only the careful legal strategy that Lambda Legal attorneys adopted to make the case compatible to a conservative Supreme Court but also the miscalculations of the Houston prosecutors who assumed that the nation’s extant sodomy laws would be upheld. Masterfully reenacting the arguments that riveted spectators and Justices alike in 2003, Flagrant Conduct then reaches a point where legal history becomes literature, animating a Supreme Court decision as few writers have done. In situating Lawrence v. Texas within the larger framework of America’s four-century persecution of gay men and lesbians, Flagrant Conduct compellingly demonstrates that gay history is an integral part of our national civil rights story. 8 pages of black-and-white photographs
345 pages, Hardcover
First published March 12, 2012
23 people are currently reading
1151 people want to read
About the author
Dale Carpenter
34 books1 followerDale Carpenter, J.D. (b. 1966) is is an American legal commentator, regular contributor to The Volokh Conspiracy, and Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School, specializing in constitutional law. He was Editor-in-Chief of the University of Chicago Law Review while working on his doctoral degree, after receiving his B.A. in history from Yale. Since 2004, he has served as an editor of Constitutional Commentary.
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April 26, 2016
As any lawyer will tell you, law school is one of premiere rackets devised by mankind. As a vessel for imparting knowledge, it is as useful as the Titanic as commanded by an Italian cruise ship captain. Law schools rely on two pedagogical concepts: the Socratic method (wherein classes consist of a “dialogue” between professor and student); and the case-law method (wherein law is taught case-by-case, divining the “law of the case” one turgid opinion at a time). These methods assure that every law student leaves school both broke and unable to do the simplest legal tasks, such as drafting a complaint or deposing a witness. (If medical schools ran the same way, aspiring doctors would spend entire semesters learning about miasma theory and leeching).
Attempting to learn the law by reading case after case is unspeakably stupid. It is also hard. I struggled mightily, for all the obvious reasons, and for a not-so-obvious one: I was always more interested in what happened behind the scenes. Each legal opinion is a story – told by the worst writers in history. Because appellate courts work off of the lower court record (and never see the case unfold personally), the facts are often incomplete or incorrect. And of course, appellate judges are interested in matters of law, not on matters pertaining to humanity. To fill in the tantalizing gaps, I’d find myself doing internet searches to learn the fates of legal-celebrities like Clarence Earl Gideon (of Gideon v. Wainwright, who won his case on retrial), Ernesto Miranda (of Miranda v. Arizona, who lost his case on remand, and who later died in a knife fight), and Richard & Mildred Loving (of Loving v. Virginia, the best named of all Supreme Court cases, who got married). All this extracurricular research distracted me from the important concepts I was supposed to be learning from the cases; I did, however, accumulate a great deal of trivia for happy hour.
My interest in Flagrant Conduct is therefore obvious. It is singularly devoted to the human story behind one of my favorite Supreme Court decisions (and Antonin Scalia’s least favorite, which is only one of the reason it is my favorites). Dale Carpenter’s book is about the long, winding judicial journey of Lawrence v. Texas, the landmark opinion that overturned the odious Bowers v. Hardwick and struck down laws outlawing homosexual sodomy. Anthony Kennedy’s decision struck a singular blow against government overreach, governmental discrimination, and for personal liberty. It is not a rigorous analysis of the legal opinion itself (more on that in a bit), but is focused on the people who made it happen.
Lawrence v. Texas started with a lovers’ quarrel. The three men involved were all gay: John Lawrence, Tyron Garner, and Robert Eubanks. Eubanks and Garner were dating. An angry and intoxicated Eubanks made an emergency call claiming that an armed man was in Lawrence’s apartment. Houston sheriff’s deputies arrived. The deputies, claiming exigent circumstances, burst into the apartment and – they claimed – caught Lawrence and Garner having sex in Lawrence’s bedroom. This activity, despite occurring between consenting adults within the confines of a private home, ran afoul of the Texas Homosexual Conduct law. The deputies could have done any one of several things. Nothing, would have been the best choice. They also could have issued a warning, or issued a citation for a Class C misdemeanor. Instead, probably because of Lawrence or Garner’s unruliness, the deputies arrested them and brought them to jail.
(It bears noting, briefly, that both Lawrence and Garner later claimed to not be having sex that night. Carpenter belabors this point to the extent of an entire unnecessary chapter. It does not matter historically or legally whether or not they were engaged in anal sex. Yet there is an extended discussion on the issue).
In order to challenge a criminal law, you have to have standing. In order to get standing, you have to get arrested and face some legal jeopardy. So far, the Texas Homosexual Conduct law had not been challenged; on the occasion that someone was charged, he or she usually pled as quickly as possible. That was about to change.
A gay court clerk working for a Texas Justice of the Peace ended up talking about the case with a gay bartender/activist at a local gay bar. The activist, Lane Lewis, got Lawrence and Garner on board with testing the case. He then contacted Lambda Legal to set up representation. Lawrence v. Texas thereafter began its slow course to the highest court in the nation.
It began with a no contest plea in front of a Justice of the Peace, and a $125 fine, plus court costs. The case went to the Texas Criminal Court, where Lawrence and Garner’s attorneys filed a motion to dismiss. Like clockwork (everyone knew this was a test case, and everyone, including judges and prosecutors, played their part), this motion was denied and the defendants once again pled no contest. Now, the Fourteenth Court of Appeals heard the case. Surprisingly, and a bit to the chagrin of the defendants (who were trying to get all the way to the top), a three-judge panel struck the law down as a violation of Texas’s Equal Rights Amendment. Soon after, the Fourteenth Court of Appeals met en banc and remembered that it was the Fourteenth Court of Appeals of Texas. The full panel of judges overturned the three-judge panel. The Texas Court of Criminal Appeals, forgetting it was their job to review cases of constitutional import, denied a request to hear the case.
With all State court remedies exhausted, the defendants filed a petition for certiorari to the United States Supreme Court, which took the case. Justice Anthony Kennedy, writing for a six-justice majority, struck the Texas law as a violation of the 14th Amendment’s Due Process Clause.
Carpenter tells this story with a keen emphasis on the individuals involved. He devotes a great deal of space to the history of gay activism in Houston, and to the otherwise normal, forgettable men who got caught in the whirlwind. Carpenter goes so far as to include mini-biographies of each of the police officers involved in the arrest. In other words, every human touch that is lost in the dry legalese of judicial opinions is recorded here. (He really shines in his description of the oral arguments before the Supreme Court. The Texas advocate went on bluster alone and got three votes. This, I suppose, tells you a lot about oral arguments).
Carpenter is a law professor at the University of Minnesota, but he does not write like one. Flagrant Conduct never gets bogged down in lawyer-speak. He writes for an audience who never made the mistake of going to law school. When he has to use a Latin phrase, he defines it. When he guides you through the tortured procedural history of this case, it’s not to impress you with his technical knowledge constitutional law, it’s to emphasize how remarkable it is that the case of John Lawrence and Tyron Garner ever came into being.
If anything, Carpenter errs too much on the side of pure storytelling, rather than analysis. I would have liked to have seen a couple things from him. First, a better explanation of the important constitutional cases leading up to Lawrence. This case did not happen in a constitutional vacuum. It was the end result of Griswold v. Connecticut, Roe v. Wade, Eisenstadt v. Baird, Romer v. Evans, and the hiccup of Bowers v. Hardwick. Carpenter mentions these cases, but never places them into any sort of context. (If you want to know more, you can look these cases up…or read my unpublished law review case note on Arkansas v. Pryor, advocating a fundamental right to access sex toys).
My other complaint is that Carpenter never really explains the Lawrence decision. Instead, he celebrates it. Clearly, he believes Lawrence to be an unquestioned triumph. I happen to agree wholeheartedly with the result on any number of levels (as a person with gay friends and family; as a person who doesn’t want the State telling me what to do in the bedroom; as a person who definitely doesn’t want the police getting a no-knock after-dark warrant to burst into my bedroom to see what I’m doing, even if all I’m doing is dozing in a haze of Z-Quill).
Obviously, I have an opinion on this subject. In internet terms, this means I have a bias. But I didn't like this book simply because of that. I liked it, as I explained above, because I'm a legal nerd. To that end, I think Carpenter is more than a bit blithe in his trumpeting of Lawrence v. Texas.
He never acknowledges that this case is extremely controversial. It is built upon the unsteady edifice of “substantive due process,” which Carpenter barely discusses. I can understand not wanting to get completely sidetracked, since this is heady argument, but there should be a basic elucidation if only so interested readers can understand why Scalia’s head almost exploded after reading Kennedy’s decision. (I think Justice O’Connor makes a better legal argument by resting the case on the 14th Amendment’s Equal Protection Clause. Of course, that meant Texas could have gone back to outlawing all sodomy, straight or gay.).
This is a propitious time to read this book. This summer – the Summer of 2015 – the United States Supreme Court may decide the last great battle of the gay civil rights movement. This is the story of the first great victory.
As a tactical matter, the Lawrence appellants stayed as far away from gay marriage as they possibly could. They knew it was easier to sell privacy in the bedroom than homosexual weddings. But Scalia saw through that. In a blistering rebuttal, in which he attacks the majority for signing onto the “homosexual agenda,” Justice Scalia wrote:
Lawrence v. Texas, 539 U.S. 558, 604-605 (Scalia, J. dissenting) (internal citations omitted).
Justice Scalia is a very smart man. I hope, in this one instance, that he is right.
Attempting to learn the law by reading case after case is unspeakably stupid. It is also hard. I struggled mightily, for all the obvious reasons, and for a not-so-obvious one: I was always more interested in what happened behind the scenes. Each legal opinion is a story – told by the worst writers in history. Because appellate courts work off of the lower court record (and never see the case unfold personally), the facts are often incomplete or incorrect. And of course, appellate judges are interested in matters of law, not on matters pertaining to humanity. To fill in the tantalizing gaps, I’d find myself doing internet searches to learn the fates of legal-celebrities like Clarence Earl Gideon (of Gideon v. Wainwright, who won his case on retrial), Ernesto Miranda (of Miranda v. Arizona, who lost his case on remand, and who later died in a knife fight), and Richard & Mildred Loving (of Loving v. Virginia, the best named of all Supreme Court cases, who got married). All this extracurricular research distracted me from the important concepts I was supposed to be learning from the cases; I did, however, accumulate a great deal of trivia for happy hour.
My interest in Flagrant Conduct is therefore obvious. It is singularly devoted to the human story behind one of my favorite Supreme Court decisions (and Antonin Scalia’s least favorite, which is only one of the reason it is my favorites). Dale Carpenter’s book is about the long, winding judicial journey of Lawrence v. Texas, the landmark opinion that overturned the odious Bowers v. Hardwick and struck down laws outlawing homosexual sodomy. Anthony Kennedy’s decision struck a singular blow against government overreach, governmental discrimination, and for personal liberty. It is not a rigorous analysis of the legal opinion itself (more on that in a bit), but is focused on the people who made it happen.
Lawrence v. Texas started with a lovers’ quarrel. The three men involved were all gay: John Lawrence, Tyron Garner, and Robert Eubanks. Eubanks and Garner were dating. An angry and intoxicated Eubanks made an emergency call claiming that an armed man was in Lawrence’s apartment. Houston sheriff’s deputies arrived. The deputies, claiming exigent circumstances, burst into the apartment and – they claimed – caught Lawrence and Garner having sex in Lawrence’s bedroom. This activity, despite occurring between consenting adults within the confines of a private home, ran afoul of the Texas Homosexual Conduct law. The deputies could have done any one of several things. Nothing, would have been the best choice. They also could have issued a warning, or issued a citation for a Class C misdemeanor. Instead, probably because of Lawrence or Garner’s unruliness, the deputies arrested them and brought them to jail.
(It bears noting, briefly, that both Lawrence and Garner later claimed to not be having sex that night. Carpenter belabors this point to the extent of an entire unnecessary chapter. It does not matter historically or legally whether or not they were engaged in anal sex. Yet there is an extended discussion on the issue).
In order to challenge a criminal law, you have to have standing. In order to get standing, you have to get arrested and face some legal jeopardy. So far, the Texas Homosexual Conduct law had not been challenged; on the occasion that someone was charged, he or she usually pled as quickly as possible. That was about to change.
A gay court clerk working for a Texas Justice of the Peace ended up talking about the case with a gay bartender/activist at a local gay bar. The activist, Lane Lewis, got Lawrence and Garner on board with testing the case. He then contacted Lambda Legal to set up representation. Lawrence v. Texas thereafter began its slow course to the highest court in the nation.
It began with a no contest plea in front of a Justice of the Peace, and a $125 fine, plus court costs. The case went to the Texas Criminal Court, where Lawrence and Garner’s attorneys filed a motion to dismiss. Like clockwork (everyone knew this was a test case, and everyone, including judges and prosecutors, played their part), this motion was denied and the defendants once again pled no contest. Now, the Fourteenth Court of Appeals heard the case. Surprisingly, and a bit to the chagrin of the defendants (who were trying to get all the way to the top), a three-judge panel struck the law down as a violation of Texas’s Equal Rights Amendment. Soon after, the Fourteenth Court of Appeals met en banc and remembered that it was the Fourteenth Court of Appeals of Texas. The full panel of judges overturned the three-judge panel. The Texas Court of Criminal Appeals, forgetting it was their job to review cases of constitutional import, denied a request to hear the case.
With all State court remedies exhausted, the defendants filed a petition for certiorari to the United States Supreme Court, which took the case. Justice Anthony Kennedy, writing for a six-justice majority, struck the Texas law as a violation of the 14th Amendment’s Due Process Clause.
Carpenter tells this story with a keen emphasis on the individuals involved. He devotes a great deal of space to the history of gay activism in Houston, and to the otherwise normal, forgettable men who got caught in the whirlwind. Carpenter goes so far as to include mini-biographies of each of the police officers involved in the arrest. In other words, every human touch that is lost in the dry legalese of judicial opinions is recorded here. (He really shines in his description of the oral arguments before the Supreme Court. The Texas advocate went on bluster alone and got three votes. This, I suppose, tells you a lot about oral arguments).
Carpenter is a law professor at the University of Minnesota, but he does not write like one. Flagrant Conduct never gets bogged down in lawyer-speak. He writes for an audience who never made the mistake of going to law school. When he has to use a Latin phrase, he defines it. When he guides you through the tortured procedural history of this case, it’s not to impress you with his technical knowledge constitutional law, it’s to emphasize how remarkable it is that the case of John Lawrence and Tyron Garner ever came into being.
If anything, Carpenter errs too much on the side of pure storytelling, rather than analysis. I would have liked to have seen a couple things from him. First, a better explanation of the important constitutional cases leading up to Lawrence. This case did not happen in a constitutional vacuum. It was the end result of Griswold v. Connecticut, Roe v. Wade, Eisenstadt v. Baird, Romer v. Evans, and the hiccup of Bowers v. Hardwick. Carpenter mentions these cases, but never places them into any sort of context. (If you want to know more, you can look these cases up…or read my unpublished law review case note on Arkansas v. Pryor, advocating a fundamental right to access sex toys).
My other complaint is that Carpenter never really explains the Lawrence decision. Instead, he celebrates it. Clearly, he believes Lawrence to be an unquestioned triumph. I happen to agree wholeheartedly with the result on any number of levels (as a person with gay friends and family; as a person who doesn’t want the State telling me what to do in the bedroom; as a person who definitely doesn’t want the police getting a no-knock after-dark warrant to burst into my bedroom to see what I’m doing, even if all I’m doing is dozing in a haze of Z-Quill).
Obviously, I have an opinion on this subject. In internet terms, this means I have a bias. But I didn't like this book simply because of that. I liked it, as I explained above, because I'm a legal nerd. To that end, I think Carpenter is more than a bit blithe in his trumpeting of Lawrence v. Texas.
He never acknowledges that this case is extremely controversial. It is built upon the unsteady edifice of “substantive due process,” which Carpenter barely discusses. I can understand not wanting to get completely sidetracked, since this is heady argument, but there should be a basic elucidation if only so interested readers can understand why Scalia’s head almost exploded after reading Kennedy’s decision. (I think Justice O’Connor makes a better legal argument by resting the case on the 14th Amendment’s Equal Protection Clause. Of course, that meant Texas could have gone back to outlawing all sodomy, straight or gay.).
This is a propitious time to read this book. This summer – the Summer of 2015 – the United States Supreme Court may decide the last great battle of the gay civil rights movement. This is the story of the first great victory.
As a tactical matter, the Lawrence appellants stayed as far away from gay marriage as they possibly could. They knew it was easier to sell privacy in the bedroom than homosexual weddings. But Scalia saw through that. In a blistering rebuttal, in which he attacks the majority for signing onto the “homosexual agenda,” Justice Scalia wrote:
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen 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"; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Lawrence v. Texas, 539 U.S. 558, 604-605 (Scalia, J. dissenting) (internal citations omitted).
Justice Scalia is a very smart man. I hope, in this one instance, that he is right.
February 4, 2019
I’d heard about the Lawrence v. Texas case before but didn’t know many details. I knew it was about two men who were arrested for having consensual sex in the privacy of their own home but were technically breaking the sodomy law in Texas in the late 1990s. I knew the case got all the way to the Supreme Court and ended up making same-sex sexual activity legal in the US and striking down sodomy laws in states where they were still active. But that’s about all that I knew.
I’ve been increasingly more interested in reading books that are about LGBTQ+ history and legal matters since those are things that I was never taught in school. I am not a lawyer and I don’t have extensive legal knowledge, so sometimes it’s daunting to try and read a non-fiction book about legal topics since so much of it can go over my head and be confusing. But that wasn’t the case with this book. Dale Carpenter writes it in a way that it’s understandable for someone who basically knows no legal terms and always confuses how the court system works.
In addition to covering the Lawrence v. Texas case, this book also broadly covers the history of sodomy laws in the US and the gay community in Houston where this book takes place. I thought there was a good balance of adding background information without ever feeling like it was taking away from the main focus of the book. My only complaint is that sometimes the book got a little repetitive, especially about the point of if Lawrence and Garner were actually having sex when the police came into their apartment.
This was definitely an interesting and emotional read about a specific moment in the history of gay rights in the US. I shed a few tears near the end of the book when the majority opinion was being read in the Supreme Court and during the celebrations afterward.
I’ve been increasingly more interested in reading books that are about LGBTQ+ history and legal matters since those are things that I was never taught in school. I am not a lawyer and I don’t have extensive legal knowledge, so sometimes it’s daunting to try and read a non-fiction book about legal topics since so much of it can go over my head and be confusing. But that wasn’t the case with this book. Dale Carpenter writes it in a way that it’s understandable for someone who basically knows no legal terms and always confuses how the court system works.
In addition to covering the Lawrence v. Texas case, this book also broadly covers the history of sodomy laws in the US and the gay community in Houston where this book takes place. I thought there was a good balance of adding background information without ever feeling like it was taking away from the main focus of the book. My only complaint is that sometimes the book got a little repetitive, especially about the point of if Lawrence and Garner were actually having sex when the police came into their apartment.
This was definitely an interesting and emotional read about a specific moment in the history of gay rights in the US. I shed a few tears near the end of the book when the majority opinion was being read in the Supreme Court and during the celebrations afterward.
April 17, 2012
A very readable history of one of the most important U.S. Supreme Court cases in my lifetime. You know -- Lawrence v. Texas, the one that said I was no longer living a life of crime just by leading my day-to-day life in my home state. From the incident itself (which probably didn't even really happen!) up through the final decision, this is really quite a riveting story. It was most interesting to see how a seminal case like this is handled by a national organization through the process, carefully ensuring that it makes its way to the highest court. I was really impressed by how smart and politically astute the Lawrence team was, and dumbfounded at the lackluster defense that Texas brought to the table. I got the impression that not a single judge who heard the case in Texas really thought that Texas' sodomy law made any sense, but most of them were to scared of the voters to do anything about it.
If nothing else, I came away from this book convinced that Texas has GOT to reform it's constitution to do away with the election of judges.
If nothing else, I came away from this book convinced that Texas has GOT to reform it's constitution to do away with the election of judges.
February 10, 2017
Required reading for class.
January 9, 2021
3.5 stars
Good book for understanding the history of Lawrence v. Texas, appeals procedure, the workings of the Supreme Court, and impact litigation. I don't know of another book that examines the history of Lawrence v. Texas, and this book does a great job of cutting through legalese. Would recommend for anyone looking to know the history behind Lawrence v. Texas, the defendants, and the lawyers and individuals involved on all sides of the case.
The downside (in my opinion) is that its not critical enough- I wish it examined more how racism and classism effected the case and individuals involved, was more critical, and included perspectives from BIPOC people and activists (especially from Texas) on the case
Good book for understanding the history of Lawrence v. Texas, appeals procedure, the workings of the Supreme Court, and impact litigation. I don't know of another book that examines the history of Lawrence v. Texas, and this book does a great job of cutting through legalese. Would recommend for anyone looking to know the history behind Lawrence v. Texas, the defendants, and the lawyers and individuals involved on all sides of the case.
The downside (in my opinion) is that its not critical enough- I wish it examined more how racism and classism effected the case and individuals involved, was more critical, and included perspectives from BIPOC people and activists (especially from Texas) on the case
October 29, 2014
Another reviewer put it very well, that they'd like to read a long article on the subject. I completely agree and found a whole book to be to much. I resolve to never again read a book on the American political system, and after this book my interest in long articles is waning. The us-and-them bi-partisan mentality with elected judges really turns my stomach.
The book was interesting and I read it partly as I couldn't believe there was anti-sodomy laws prohibiting oral sex as recently as 2004 in North America. That being said I can understand some of what was being dealt with, there still is a lot of macho guys in law enforcement. It amazes me when I watch COPS filmed in the South. They catch a criminal and say "You should be a man and confess" and like every time the guy says "Yeah, okay, I did it." Like this stranger who I don't like is calling my manhood into question? Ok, then I'll do five years in jail. Crazy! And how to you logically change that type of mentality?
I liked the historical aspect of the book involving the detailing of anti-sodomy laws for the last 400 years but found it very short. In particular:
"dropping a nickel on a sister" involved telephoning a gay acquaintance's employer, informing the employer of the person's homosexuality, getting his fired, and then applying for the vacant position.
The fact that this happened often enough that there was a name for it floored me.
The police in the case were clearly homophobic:
"That whole apartment smelled of gay," he told one interviewer. "An anal odor."
And this brings up another aspect I didn't like of the book. To my knowledge there are no books out there proving that aliens HAVEN'T landed, or that vampires DON'T exist. Everyone knows this stuff. In a similar fashion I don't think we need 40 pages explaining why it's improbable the defendants in this case were having sex, or 50 pages explaining why this wasn't part of a conspiracy theory. If you're going to set up the police you don't do it with a drunk inter-racial hillbilly threesome. Done. I don't think anyone really questions that.
The Texas arguments often floored me:
"...privacy was not an issue in the case because the sexual conduct of the men became public when police entered the bedroom."
This kind of leads to what I saw as the biggest problem, the law was unenforceable. You can't regulate what two consenting adults do behind closed doors as the door is closed. Too often the arguments would veer off into irrelevant territory. For example, in the Supreme Court, Texas had someone file a brief on their behalf which said:
"[Adultery] laws would arguably 'burden' Fred's and Wilma's constitutional right to intimacy with Barney and Betty, individually or all together."
So often the case went off point, and no one seemed to be able to bring it back. This was not a referendum on homosexuality and whether you liked it, which is what the state tried to make it. This is about one specific point. I didn't highlight the passage but when the team was presenting arguments and the most conservative judge on the Supreme Court asked something about whether this will lead to pedophilia and scout master sleep-overs, how do you even answer that? I don't have the restraint to be able to argue this case. Did you read the case? Where in here did you see a child, where in here did you see a scout, and how do I know what this will open up, am I a travelling fortune-teller? Get back to the case!
While I agree that:
"A majority should not be able to give itself full freedom to engage in certain conduct but prohibit it to a minority for no better reason that, as Smith characterized it, 'we want it that way.'"
So much of the argument presented was "we're just like them" which whether we're like them or not seemed to have little to do with the case. Partisan politics ran SO deeply that the book mentions:
"...three of Justice Kennedy's four clerks were, in fact, conservatives."
So not only do we know the politics of the judges, but of their clerks. How is any of this relevant? Surely issues of human rights decided by the highest court in the country should be based on reason and law, and not on the whims of the current political party. How can the people have any faith in a system run this way???
In his dissenting opinion, one justice "intoned that many Americans did not want known homosexuals to work in their businesses, serve as scoutmasters for their children, be teachers in their schools, live as borders in their homes, or serve in their military." Again, which of these things were on trial?!?!? Yikes this frustrated me.
An interesting book that raised questions but got me riled. I need more calming reading.
The book was interesting and I read it partly as I couldn't believe there was anti-sodomy laws prohibiting oral sex as recently as 2004 in North America. That being said I can understand some of what was being dealt with, there still is a lot of macho guys in law enforcement. It amazes me when I watch COPS filmed in the South. They catch a criminal and say "You should be a man and confess" and like every time the guy says "Yeah, okay, I did it." Like this stranger who I don't like is calling my manhood into question? Ok, then I'll do five years in jail. Crazy! And how to you logically change that type of mentality?
I liked the historical aspect of the book involving the detailing of anti-sodomy laws for the last 400 years but found it very short. In particular:
"dropping a nickel on a sister" involved telephoning a gay acquaintance's employer, informing the employer of the person's homosexuality, getting his fired, and then applying for the vacant position.
The fact that this happened often enough that there was a name for it floored me.
The police in the case were clearly homophobic:
"That whole apartment smelled of gay," he told one interviewer. "An anal odor."
And this brings up another aspect I didn't like of the book. To my knowledge there are no books out there proving that aliens HAVEN'T landed, or that vampires DON'T exist. Everyone knows this stuff. In a similar fashion I don't think we need 40 pages explaining why it's improbable the defendants in this case were having sex, or 50 pages explaining why this wasn't part of a conspiracy theory. If you're going to set up the police you don't do it with a drunk inter-racial hillbilly threesome. Done. I don't think anyone really questions that.
The Texas arguments often floored me:
"...privacy was not an issue in the case because the sexual conduct of the men became public when police entered the bedroom."
This kind of leads to what I saw as the biggest problem, the law was unenforceable. You can't regulate what two consenting adults do behind closed doors as the door is closed. Too often the arguments would veer off into irrelevant territory. For example, in the Supreme Court, Texas had someone file a brief on their behalf which said:
"[Adultery] laws would arguably 'burden' Fred's and Wilma's constitutional right to intimacy with Barney and Betty, individually or all together."
So often the case went off point, and no one seemed to be able to bring it back. This was not a referendum on homosexuality and whether you liked it, which is what the state tried to make it. This is about one specific point. I didn't highlight the passage but when the team was presenting arguments and the most conservative judge on the Supreme Court asked something about whether this will lead to pedophilia and scout master sleep-overs, how do you even answer that? I don't have the restraint to be able to argue this case. Did you read the case? Where in here did you see a child, where in here did you see a scout, and how do I know what this will open up, am I a travelling fortune-teller? Get back to the case!
While I agree that:
"A majority should not be able to give itself full freedom to engage in certain conduct but prohibit it to a minority for no better reason that, as Smith characterized it, 'we want it that way.'"
So much of the argument presented was "we're just like them" which whether we're like them or not seemed to have little to do with the case. Partisan politics ran SO deeply that the book mentions:
"...three of Justice Kennedy's four clerks were, in fact, conservatives."
So not only do we know the politics of the judges, but of their clerks. How is any of this relevant? Surely issues of human rights decided by the highest court in the country should be based on reason and law, and not on the whims of the current political party. How can the people have any faith in a system run this way???
In his dissenting opinion, one justice "intoned that many Americans did not want known homosexuals to work in their businesses, serve as scoutmasters for their children, be teachers in their schools, live as borders in their homes, or serve in their military." Again, which of these things were on trial?!?!? Yikes this frustrated me.
An interesting book that raised questions but got me riled. I need more calming reading.
March 13, 2019
4.5 of 5 stars – Engrossing Backstory of Courage, Strategy & Serendipity.
This book wonderfully captured a piece of underrated glbtq+ history, one that paved the way for the later marriage equality rulings. In a clear way, this dealt with the legal aspects of the case. But more than that, it gave life to the story by delving into the lives of the people involved and how this minor arrest became a landmark Supreme Court decision in glbtq+ history.
Dale Carpenter captured my interest in many ways in explaining this case and exploring its colorful backstory. Most compelling for me was the story of the two men at the center. John Lawrence and Tyron Garner were just two regular gay guys, involved in what seemed a minor arrest, just one of many in gay history. They were not media darlings, far from it – not articulate in front of the press, didn’t have a compelling love story, in fact a minority in a minority as an interracial gay couple. Thus even today we don’t think of them, but instead of those other brave souls in the marriage equality cases. Still, these two didn’t have to bare their souls and go the route they did in letting the powers that be use their case as an avenue to test and ultimately overthrow the sodomy laws of the country. It took courage and earned my respect.
And then I learned of all the twists and lucky happenstances in the case. I enjoyed all the little tidbits – So, fate stepped in.
Along the way, I learned of the larger context of the long history of sodomy laws, and of the legal strategizing and maneuvering done on all sides. Even this was told in a straightforward, understandable way, and also served as a glimpse into the broader glbtq+ history itself.
And full disclosure – the timing of this was of particular significance for me. I came out just the year before; and that June just after the decision, I marched in my first pride parade … where I, as well as many others reveled in the fact that we were no longer criminals in the eyes of the law.
[Gay Men’s Book Group-Chicago monthly selection]
This book wonderfully captured a piece of underrated glbtq+ history, one that paved the way for the later marriage equality rulings. In a clear way, this dealt with the legal aspects of the case. But more than that, it gave life to the story by delving into the lives of the people involved and how this minor arrest became a landmark Supreme Court decision in glbtq+ history.
Dale Carpenter captured my interest in many ways in explaining this case and exploring its colorful backstory. Most compelling for me was the story of the two men at the center. John Lawrence and Tyron Garner were just two regular gay guys, involved in what seemed a minor arrest, just one of many in gay history. They were not media darlings, far from it – not articulate in front of the press, didn’t have a compelling love story, in fact a minority in a minority as an interracial gay couple. Thus even today we don’t think of them, but instead of those other brave souls in the marriage equality cases. Still, these two didn’t have to bare their souls and go the route they did in letting the powers that be use their case as an avenue to test and ultimately overthrow the sodomy laws of the country. It took courage and earned my respect.
And then I learned of all the twists and lucky happenstances in the case. I enjoyed all the little tidbits – So, fate stepped in.
Along the way, I learned of the larger context of the long history of sodomy laws, and of the legal strategizing and maneuvering done on all sides. Even this was told in a straightforward, understandable way, and also served as a glimpse into the broader glbtq+ history itself.
And full disclosure – the timing of this was of particular significance for me. I came out just the year before; and that June just after the decision, I marched in my first pride parade … where I, as well as many others reveled in the fact that we were no longer criminals in the eyes of the law.
[Gay Men’s Book Group-Chicago monthly selection]
August 11, 2016
Fascinating contextual backdrop to the heroic case of Texas v. Lawrence (2003), the U.S. Supreme Court case that took the crime of “homosexual conduct” (i.e. sodomy OR oral sex) off the books. Yes, “homosexual conduct” was illegal in some states up until 2003.
Carpenter spends too much time assessing the facts, timing, and stories of all the people involved to theorize whether or not Garner and Lawrence were actually having sex the day the Texas cops busted into the apartment. It seems they probably were not. But the more important thing is: it doesn’t matter. It’s funny that it doesn’t matter, but neither side – the State nor the defense – wanted the real facts to ever be tried or to come to light. The State, because then the cops would have been egregious in misconduct (“Black guy, white guy, apartment, naked” = perfect cop-lying-breeding-ground). And the defense, because if there was no sex, they would not be able to make a claim that people can have sex in the privacy of their homes.
What a serendipitous string of strange events coming together to create Texas v. Lawrence. The officers had to arrest the 2 men, even though “homosexual conduct” was merely a fine (and not an arrestable offense). The common-man defendants had to be interested in pleading no contest, appealing the case to the highest court, and losing any modicum of privacy. The gay judicial clerk talking about the incident at a gay bar, where a gay activist heard about it and got in touch with infamous civil rights lawyers. The Texas courts finding that the “homosexual conduct” statute was constitutional, allowing the defense team to appeal to the U.S. Supreme Court. The U.S. Supreme Court granting cert to review! The rather conservative Court striking down the law!
It was super interesting to get this view “behind the scenes” of a case making its way to the USSC: the way the lawyers constructed the case in focusing on the family concept, as opposed to the right to have homosexual sex, or how they consulted numerous attorneys who had been clerks to certain justices on the Supreme Court in drafting their briefs. Even though I knew what the ultimate decision was by the Court, my body broke out into chills – a feel-good moment: gays have some rights, according to the U.S. Supreme Court.
Carpenter spends too much time assessing the facts, timing, and stories of all the people involved to theorize whether or not Garner and Lawrence were actually having sex the day the Texas cops busted into the apartment. It seems they probably were not. But the more important thing is: it doesn’t matter. It’s funny that it doesn’t matter, but neither side – the State nor the defense – wanted the real facts to ever be tried or to come to light. The State, because then the cops would have been egregious in misconduct (“Black guy, white guy, apartment, naked” = perfect cop-lying-breeding-ground). And the defense, because if there was no sex, they would not be able to make a claim that people can have sex in the privacy of their homes.
What a serendipitous string of strange events coming together to create Texas v. Lawrence. The officers had to arrest the 2 men, even though “homosexual conduct” was merely a fine (and not an arrestable offense). The common-man defendants had to be interested in pleading no contest, appealing the case to the highest court, and losing any modicum of privacy. The gay judicial clerk talking about the incident at a gay bar, where a gay activist heard about it and got in touch with infamous civil rights lawyers. The Texas courts finding that the “homosexual conduct” statute was constitutional, allowing the defense team to appeal to the U.S. Supreme Court. The U.S. Supreme Court granting cert to review! The rather conservative Court striking down the law!
It was super interesting to get this view “behind the scenes” of a case making its way to the USSC: the way the lawyers constructed the case in focusing on the family concept, as opposed to the right to have homosexual sex, or how they consulted numerous attorneys who had been clerks to certain justices on the Supreme Court in drafting their briefs. Even though I knew what the ultimate decision was by the Court, my body broke out into chills – a feel-good moment: gays have some rights, according to the U.S. Supreme Court.
November 16, 2012
Fascinating deconstruction of the Lawrence v. Texas Supreme Court case.
In 1998, Houston police received a call that there was a "crazy black man with a gun" at an apartment. They went to the scene, found no gun (it was a false report by a jealous boyfriend), but allegedly discovered two men engaged in a sexual act, IN THE BEDROOM, IN THE PRIVACY OF THEIR OWN HOME. They were arrested, booked, and charged with violating Texas's antisodomy laws.
Carpenter does a great job of laying out the background, with the history of the sodomy law -- which was rewritten over & over again, more narrowly each time, seemingly zeroing in on homosexuals only -- and the local political scene in Houston at the time the case was making its way through the court system. We get to know all the players in this story, and he gives us a real sense of where each of them stood politically, socioeconomically, and philosophically.
Once you learn all the details of this case and how it all came about, it's amazing that it actually found its way to the Supreme Court. A miraculous achievement and great legal work by all involved on the Lawrence team, making history and setting the stage for the advancement of gay rights and marriage equality.
In 1998, Houston police received a call that there was a "crazy black man with a gun" at an apartment. They went to the scene, found no gun (it was a false report by a jealous boyfriend), but allegedly discovered two men engaged in a sexual act, IN THE BEDROOM, IN THE PRIVACY OF THEIR OWN HOME. They were arrested, booked, and charged with violating Texas's antisodomy laws.
Carpenter does a great job of laying out the background, with the history of the sodomy law -- which was rewritten over & over again, more narrowly each time, seemingly zeroing in on homosexuals only -- and the local political scene in Houston at the time the case was making its way through the court system. We get to know all the players in this story, and he gives us a real sense of where each of them stood politically, socioeconomically, and philosophically.
Once you learn all the details of this case and how it all came about, it's amazing that it actually found its way to the Supreme Court. A miraculous achievement and great legal work by all involved on the Lawrence team, making history and setting the stage for the advancement of gay rights and marriage equality.
Read
December 3, 2013"I recommend Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas. This is a fascinating and readable account of the ins and outs of how the Supreme Court of the United States came to hold unconstitutional the criminal punishment of homosexual sodomy." — Geoffrey R. Stone
"It's nice to see what became of work I first encountered in drafts presented at my Law School Workshop on Regulation of Family, Sex and Gender." - Mary Anne Case
"It's nice to see what became of work I first encountered in drafts presented at my Law School Workshop on Regulation of Family, Sex and Gender." - Mary Anne Case
Want to read
April 1, 2012I'm very disturbed that Goodreads has capitalized the V. in the title.
ETA: They've fixed it!
ETA: They've fixed it!
April 14, 2020
On Constitution Day in 1998, in Harris County in the outskirts of Houston, Texas, two (adult) men were arrested for (allegedly) engaging in a (consensual) sexual act (in private). They did not contest the charges levied against them, instead they challenged the constitutional validity of the law they were charged with. Their case, on appeal, went to the US Supreme Court and there, the men won – and so did millions of gay and lesbian Americans . This, in a nutshell, is the story of Lawrence v. Texas.
There already is a voluminous amount of literature on Lawrence , for it is the case which made same-sex sexual activity legal across the United States. But all those publications – mostly footnote ridden articles on constitutional law – are invariably about the opinion of the Supreme Court, which was only the climax of a five year long litigation, and more importantly, of a much longer struggle for equal citizenship.
Dale Carpenter's Flagrant Conduct, on the other hand, is a 'people's history of Lawrence v. Texas,' the hitherto unwritten story of those Americans who came together – some willingly, some unwillingly, some knowingly, some unknowingly – and made history. The participants included a group of devoted lawyers who assiduously litigated the case, a bartender—activist, a closeted gay court clerk, a closeted lesbian prosecutor, a Justice of the Peace who understood the import of this mere class-C misdemeanor case, state court judges in Texas who were elected in partisan elections(!), a bunch of conservative “family values” politicians, a district attorney and his deputy, the unelected, life-tenured Justices of the US Supreme Court, the police officers who made what was arguably the most significant arrest in the queer history of the United States, and of course, the homosexuals – John Geddes Lawrence and Tyron Garner. Based on extensive interviews with all of them (except the Judges), Carpenter's account is a thoroughly compelling read. He painstakingly recounts all the minutiae that were left out, concealed or forgotten from the oft-told tale of Lawrence. For instance, look at the opinion of the Supreme Court, which begins with the following brief statemet of facts:
Straight from the arresting Officer's report, this account was all that the Court, and just about everyone, knew about the the facts of the case. Yet there is more to the story. To begin with, it is likely that Lawrence and Garner never engaged in any sexual act! Their arrests, in all likelihood, were prompted only by a homophobic police officer's squeamishness about the homoerotic sketches found in Lawrence's apartment, as well as with an evidently effeminate African-American man, the co-defendant Tyron Garner.
Flagrant Conduct begins with a survey of sodomy laws in Texas. Much like elsewhere in the West, sodomy or “the crime against nature... committed with mankind or beast” had long been criminalized in Texas. The laws were revised from time to time, before zeroing in exclusively on sexual acts between members of the same sex. Thus, after the adoption of Section 21.06 of the Texas Penal Code in 1973, as Carpenter tartly observes, “it was legal to have sex with an animal, but not with another person of the same sex.” This lack of pedigree of the same-sex-only nature of the statute would be pointed out at the oral argument in the Supreme Court. The author also traces a brief history of the gay rights movement in Houston, which over the course of years made several unsuccessful attempts at repealing Section 21.06. With the legislative door closed on them, the only recourse gay rights activists in Texas had was to challenge the constitutionality of the statute in a court of law. And they were waiting for a 'test case,' which Lawrence would become.
After introducing the principal players in the first act -- the Defendants, Lawrence and Garner, and the Troublemaker, Robert Royce Eubanks, the on-again, off-again boyfriend of Garner's, and the four Deputies in the Harris County Sheriff's Office who arrested Lawrence and Garner following a phone call from Eubanks about a “black male going crazy with a gun,” Carpenter then diligently chronicles the dramatic events of the night of the arrest.
What ensued was a fascinating combination of happenstance, activism and litigation, all enabled by two ordinary working class gay Americans' refusal to be cowered by the ruthless treatment they received at the hands of the state. The case ended up in Justice of the Peace Mike Parrot's Court, where it was processed by a gay clerk Nathan Broussard, who without quite realizing the significance of the case, mentioned it to a bartender, Lane Lewis. Active in the gay civil rights movement, Lewis gathered the details of the arrest; contacted Lawrence and Garner, and convinced them to change their initial 'not guilty' pleas to 'no contest'; consulted a well regarded local gay attorney, Mitchell Katine, who in turn informed Suzanne Goldberg, an attorney at Lambda Legal, of the potential test-case.
The next judicial stop was the Harris County Criminal Court, where the “first substantive constitutional arguments in Lawrence v. Texas were sprouted.” There, Lawrence and Garner plead 'no contest,' the last words the two men ever said in a court about their case. Rejecting the defense's motion to have the prosecutions quashed on the ground that the Texas law violated the State and the Federal Constitutions, the Court found both Lawrence and Garner guilty, and assessed their punishments at $200 each.
On appeal, when a three judge panel of Texas Fourteenth Court of Appeals considered the constitutional arguments advanced by Lambda, and in a 2-1 vote decided in favor of the defendants, the lawyers at Lambda found themselves in a dilemma. They were hoping to use the Lawrence case to get the US Supreme Court to reconsider its 1986 decision in Bowers v. Hardwick , which had callously rejected the claim that “the Federal Constitution confers upon homosexuals a fundamental right to engage in sodomy.” The premature victory in a local Texas court would preclude Lambda from proceeding further. In short, the case was won, but the cause was lost. But thanks to the Texas Republican Party, the case was kept alive. Days after the panel decision, the Texas GOP adopted a platform denouncing homosexuality and rebuking the two 'activist' Judges who invalidated the 'homosexual law'. Following this political backlash, the full bench of the Appeals Court, composed of nine elected judges, even without hearing oral arguments, reversed the panel in a 7-2 decision. More than a year later, the Court of Criminal Appeals, the highest court in Texas dealing with criminal law issues, rejected Lambda's petition for review. All hurdles cleared, Lawrence was now headed to the US Supreme Court.
Lawyers at Lambda now had to make a critical decision -- selecting a lawyer to present oral arguments at the Supreme Court. From a pool of potential candidates, they picked Paul Smith, a veteran lawyer in an elite Washington law firm. The selection was was an “extra personal burden for Smith,” for he was one of the many closeted gay lawyers who had clerked at the Supreme Court for Justice Lewis Powell, who cast the decisive fifth vote in Bowers to uphold Georgia's sodomy law. Justice Powell, while deliberating Bowers, is reported to have remarked to his yet another closeted gay law clerk that he had never met a homosexual.
With Powell “looming large in the background, psychologically,” and guided by an army of seasoned Supreme Court practitioners in addition to Lambda's lawyers, Paul Smith did a masterful job at the oral argument. With felicity, he “articulated the substantive idea that sexual intimacy among gay Americans was a good thing, not merely a tolerable thing.” Pitted against Smith was Chuck Rosenthal, the District Attorney of Harris County. An accomplished jury-trial lawyer, Rosenthal was woefully inept to litigate at the Supreme Court. While he fumbled at the podium, the Justices “effectively argued among themselves, using Rosenthal as a foil,” finally forcing a gentle admonition from the Chief Justice to “go through Counsel.” Carpenter's account of this “mismatch at the Supreme Court” is deeply engrossing.
On June 26, 2003, two days before the anniversary of the Stonewall riots, the Supreme Court announced its decision overruling Bowers. Justice Anthony Kennedy's majority opinion was a paean to liberty. “Their [the petitioners'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter,” he wrote. And unequivocally held that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
In an angry dissenting opinion, Justice Antonin Scalia lambasted the majority opinion, a “product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” He warned that “[t]oday’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
Justice Scalia's prophetic warning would ultimately come true a decade later, through yet another opinion by Justice Kennedy, provoking yet another dissent from Scalia. John Lawrence did not live long enough to see that day, but his eponymous case, as Carpenter notes, had already “challenged not only the American legal order but ultimately the cultural assumptions that undergirded it.”
--- ----
As I write this, with Republicans in the White House and Congress, and the still remaining members of the Lawerence majority aging on the Supreme Court, an assault on marriage-equality had already begun in Texas, and a chill wind blows.
There already is a voluminous amount of literature on Lawrence , for it is the case which made same-sex sexual activity legal across the United States. But all those publications – mostly footnote ridden articles on constitutional law – are invariably about the opinion of the Supreme Court, which was only the climax of a five year long litigation, and more importantly, of a much longer struggle for equal citizenship.
Dale Carpenter's Flagrant Conduct, on the other hand, is a 'people's history of Lawrence v. Texas,' the hitherto unwritten story of those Americans who came together – some willingly, some unwillingly, some knowingly, some unknowingly – and made history. The participants included a group of devoted lawyers who assiduously litigated the case, a bartender—activist, a closeted gay court clerk, a closeted lesbian prosecutor, a Justice of the Peace who understood the import of this mere class-C misdemeanor case, state court judges in Texas who were elected in partisan elections(!), a bunch of conservative “family values” politicians, a district attorney and his deputy, the unelected, life-tenured Justices of the US Supreme Court, the police officers who made what was arguably the most significant arrest in the queer history of the United States, and of course, the homosexuals – John Geddes Lawrence and Tyron Garner. Based on extensive interviews with all of them (except the Judges), Carpenter's account is a thoroughly compelling read. He painstakingly recounts all the minutiae that were left out, concealed or forgotten from the oft-told tale of Lawrence. For instance, look at the opinion of the Supreme Court, which begins with the following brief statemet of facts:
In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace.
Straight from the arresting Officer's report, this account was all that the Court, and just about everyone, knew about the the facts of the case. Yet there is more to the story. To begin with, it is likely that Lawrence and Garner never engaged in any sexual act! Their arrests, in all likelihood, were prompted only by a homophobic police officer's squeamishness about the homoerotic sketches found in Lawrence's apartment, as well as with an evidently effeminate African-American man, the co-defendant Tyron Garner.
Flagrant Conduct begins with a survey of sodomy laws in Texas. Much like elsewhere in the West, sodomy or “the crime against nature... committed with mankind or beast” had long been criminalized in Texas. The laws were revised from time to time, before zeroing in exclusively on sexual acts between members of the same sex. Thus, after the adoption of Section 21.06 of the Texas Penal Code in 1973, as Carpenter tartly observes, “it was legal to have sex with an animal, but not with another person of the same sex.” This lack of pedigree of the same-sex-only nature of the statute would be pointed out at the oral argument in the Supreme Court. The author also traces a brief history of the gay rights movement in Houston, which over the course of years made several unsuccessful attempts at repealing Section 21.06. With the legislative door closed on them, the only recourse gay rights activists in Texas had was to challenge the constitutionality of the statute in a court of law. And they were waiting for a 'test case,' which Lawrence would become.
After introducing the principal players in the first act -- the Defendants, Lawrence and Garner, and the Troublemaker, Robert Royce Eubanks, the on-again, off-again boyfriend of Garner's, and the four Deputies in the Harris County Sheriff's Office who arrested Lawrence and Garner following a phone call from Eubanks about a “black male going crazy with a gun,” Carpenter then diligently chronicles the dramatic events of the night of the arrest.
What ensued was a fascinating combination of happenstance, activism and litigation, all enabled by two ordinary working class gay Americans' refusal to be cowered by the ruthless treatment they received at the hands of the state. The case ended up in Justice of the Peace Mike Parrot's Court, where it was processed by a gay clerk Nathan Broussard, who without quite realizing the significance of the case, mentioned it to a bartender, Lane Lewis. Active in the gay civil rights movement, Lewis gathered the details of the arrest; contacted Lawrence and Garner, and convinced them to change their initial 'not guilty' pleas to 'no contest'; consulted a well regarded local gay attorney, Mitchell Katine, who in turn informed Suzanne Goldberg, an attorney at Lambda Legal, of the potential test-case.
The next judicial stop was the Harris County Criminal Court, where the “first substantive constitutional arguments in Lawrence v. Texas were sprouted.” There, Lawrence and Garner plead 'no contest,' the last words the two men ever said in a court about their case. Rejecting the defense's motion to have the prosecutions quashed on the ground that the Texas law violated the State and the Federal Constitutions, the Court found both Lawrence and Garner guilty, and assessed their punishments at $200 each.
On appeal, when a three judge panel of Texas Fourteenth Court of Appeals considered the constitutional arguments advanced by Lambda, and in a 2-1 vote decided in favor of the defendants, the lawyers at Lambda found themselves in a dilemma. They were hoping to use the Lawrence case to get the US Supreme Court to reconsider its 1986 decision in Bowers v. Hardwick , which had callously rejected the claim that “the Federal Constitution confers upon homosexuals a fundamental right to engage in sodomy.” The premature victory in a local Texas court would preclude Lambda from proceeding further. In short, the case was won, but the cause was lost. But thanks to the Texas Republican Party, the case was kept alive. Days after the panel decision, the Texas GOP adopted a platform denouncing homosexuality and rebuking the two 'activist' Judges who invalidated the 'homosexual law'. Following this political backlash, the full bench of the Appeals Court, composed of nine elected judges, even without hearing oral arguments, reversed the panel in a 7-2 decision. More than a year later, the Court of Criminal Appeals, the highest court in Texas dealing with criminal law issues, rejected Lambda's petition for review. All hurdles cleared, Lawrence was now headed to the US Supreme Court.
Lawyers at Lambda now had to make a critical decision -- selecting a lawyer to present oral arguments at the Supreme Court. From a pool of potential candidates, they picked Paul Smith, a veteran lawyer in an elite Washington law firm. The selection was was an “extra personal burden for Smith,” for he was one of the many closeted gay lawyers who had clerked at the Supreme Court for Justice Lewis Powell, who cast the decisive fifth vote in Bowers to uphold Georgia's sodomy law. Justice Powell, while deliberating Bowers, is reported to have remarked to his yet another closeted gay law clerk that he had never met a homosexual.
With Powell “looming large in the background, psychologically,” and guided by an army of seasoned Supreme Court practitioners in addition to Lambda's lawyers, Paul Smith did a masterful job at the oral argument. With felicity, he “articulated the substantive idea that sexual intimacy among gay Americans was a good thing, not merely a tolerable thing.” Pitted against Smith was Chuck Rosenthal, the District Attorney of Harris County. An accomplished jury-trial lawyer, Rosenthal was woefully inept to litigate at the Supreme Court. While he fumbled at the podium, the Justices “effectively argued among themselves, using Rosenthal as a foil,” finally forcing a gentle admonition from the Chief Justice to “go through Counsel.” Carpenter's account of this “mismatch at the Supreme Court” is deeply engrossing.
On June 26, 2003, two days before the anniversary of the Stonewall riots, the Supreme Court announced its decision overruling Bowers. Justice Anthony Kennedy's majority opinion was a paean to liberty. “Their [the petitioners'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter,” he wrote. And unequivocally held that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
In an angry dissenting opinion, Justice Antonin Scalia lambasted the majority opinion, a “product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” He warned that “[t]oday’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
Justice Scalia's prophetic warning would ultimately come true a decade later, through yet another opinion by Justice Kennedy, provoking yet another dissent from Scalia. John Lawrence did not live long enough to see that day, but his eponymous case, as Carpenter notes, had already “challenged not only the American legal order but ultimately the cultural assumptions that undergirded it.”
--- ----
As I write this, with Republicans in the White House and Congress, and the still remaining members of the Lawerence majority aging on the Supreme Court, an assault on marriage-equality had already begun in Texas, and a chill wind blows.
June 12, 2017
In 1998, police responding to a report of a man with a gun entered a residence at an apartment complex in Houston. When they went inside, they claim to have witnessed two men having sex.
...or at least 2 of the 4 officers witnessed it.
...except both men denied it, reporting instead that they had never been intimate, had never had a romantic or sexual relationship, and that they were certainly not having sex after hearing the police scream "Sheriff's Office! Sheriff's Office! Sheriff's Office!" loudly in their apartment, just feet away. Common sense tells most of us that if we heard those words, we would quickly stop whatever we were doing.
So, with this report, the police who entered, arrested both men. They put them in handcuffs. They dragged one man, John Lawrence, down the stairs, making his legs bleed. They hauled them to jail and kept them overnight. Lawrence's name would go on to the famous Supreme Court case, "Lawrence Vs. Texas."
This is the story about how gay-rights advocates and lawyers got involved with a case. They'd been looking for an opportunity to challenge state sodomy laws, which outlaw adults having sex in their own homes, privately. They took up the case and took it through the Texas courts, all the way to the United States Supreme Court. After they won, Lambda lawyer Jenny Pizer had this to say:
"This is our Declaration of Independence. We now have the right to love and to make love. We have the right to be fabulous." Even Justice Antonin Scalia couldn't stop the rising tide of acceptance towards LGBT persons in America. And as we know, more freedoms came after this decision of 2003.
But let's remember John Lawrence and Tyron Garner, who were dragged from their homes, hauled to jail, and charged with "Homosexual Conduct," in addition to being ridiculed and called names by the arresting officers. They had to walk past signs saying that God hated them to get into the Supreme Court. But when they left, it didn't matter who hated them...
They now had the right to be who they are...
And not be criminals, any longer.
...or at least 2 of the 4 officers witnessed it.
...except both men denied it, reporting instead that they had never been intimate, had never had a romantic or sexual relationship, and that they were certainly not having sex after hearing the police scream "Sheriff's Office! Sheriff's Office! Sheriff's Office!" loudly in their apartment, just feet away. Common sense tells most of us that if we heard those words, we would quickly stop whatever we were doing.
So, with this report, the police who entered, arrested both men. They put them in handcuffs. They dragged one man, John Lawrence, down the stairs, making his legs bleed. They hauled them to jail and kept them overnight. Lawrence's name would go on to the famous Supreme Court case, "Lawrence Vs. Texas."
This is the story about how gay-rights advocates and lawyers got involved with a case. They'd been looking for an opportunity to challenge state sodomy laws, which outlaw adults having sex in their own homes, privately. They took up the case and took it through the Texas courts, all the way to the United States Supreme Court. After they won, Lambda lawyer Jenny Pizer had this to say:
"This is our Declaration of Independence. We now have the right to love and to make love. We have the right to be fabulous." Even Justice Antonin Scalia couldn't stop the rising tide of acceptance towards LGBT persons in America. And as we know, more freedoms came after this decision of 2003.
But let's remember John Lawrence and Tyron Garner, who were dragged from their homes, hauled to jail, and charged with "Homosexual Conduct," in addition to being ridiculed and called names by the arresting officers. They had to walk past signs saying that God hated them to get into the Supreme Court. But when they left, it didn't matter who hated them...
They now had the right to be who they are...
And not be criminals, any longer.
November 5, 2019
As a law student and person actively interested in queer history, I had such high hopes for Dale Carpenter's recounting of the landmark Supreme Court case banning sodomy laws. Sadly, "Flagrant Conduct," though certainly historically interesting and relevant, defeated itself and made me realize just how much further the LGBT movement needs to work internally to fight its own homophobia.
In excellent detail, Carpenter's account of the events leading up to and during the watershed legal case Lawrence v. Texas recounts the lives of all those involved from the night John Lawrence and Tyron Garner were arrested and accused of sodomy until the Supreme Court eventually overruled Texas' arcane homophobic anti-sodomy law. Unfortunately, the merits of the book stop there. While Carpenter recounts the fact that the gay rights attorneys and organizations fighting against the law framed their argument in an extremely assimilationist way (i.e. "gays are just like straights! We love marriage and monogamy") and details specifically how these attorneys avoided even saying the word "anal sex" to avoid scandalizing conservatives in the legal community, he does little to critique this incredibly problematic position.
At the end of the day this is the problem then: Carpenter's history is a conservative history with no critique of how this conservatism, though winning battles like Lawrence v Texas, have actually done long term harm to the LGBT movement and it's attempts to normalize our identities and our sexual freedoms. We all should read and know about Lawrence v. Texas and this watershed moment in our history, but "Flagrant Conduct" is not the solution.
In excellent detail, Carpenter's account of the events leading up to and during the watershed legal case Lawrence v. Texas recounts the lives of all those involved from the night John Lawrence and Tyron Garner were arrested and accused of sodomy until the Supreme Court eventually overruled Texas' arcane homophobic anti-sodomy law. Unfortunately, the merits of the book stop there. While Carpenter recounts the fact that the gay rights attorneys and organizations fighting against the law framed their argument in an extremely assimilationist way (i.e. "gays are just like straights! We love marriage and monogamy") and details specifically how these attorneys avoided even saying the word "anal sex" to avoid scandalizing conservatives in the legal community, he does little to critique this incredibly problematic position.
At the end of the day this is the problem then: Carpenter's history is a conservative history with no critique of how this conservatism, though winning battles like Lawrence v Texas, have actually done long term harm to the LGBT movement and it's attempts to normalize our identities and our sexual freedoms. We all should read and know about Lawrence v. Texas and this watershed moment in our history, but "Flagrant Conduct" is not the solution.
February 20, 2025
I have been slowly chugging through this one and finally crossed the finish line on a flight home from a conference. A great micro-history digging deep into Lawrence v. Texas, the Supreme Court case that overturned a Texas case banning sex for homosexual couples. It's surprising this was only back in 2003, that's in my lifetime, I was a teenager. We take this for granted now because it feels like it's just assumed to be the norm, but it most certainly is not.
The book goes back deep, examining the backstories of the defendants, John Lawrence and Tyson Garner, as well as the police carrying out the arrest, the lawyers hired to take the case, and the slow winding trail up the court system. You learn that Lawrence and Tyson were not the "ideal" gay couple that would have made them darlings in the public eye. In fact, the lawyers tried to keep them out of the spotlight to avoid letting their dirty laundry muck up the court case.
The situation at the Supreme Court also seemed like a different era. Scalia and Thomas were the only real crazies. O'Connor, Kennedy, both relative moderates appointed by conservative presidents, could swing either way.
An inspiring story, and I'm glad to educate myself a little bit more in these important milestones in civil rights.
The book goes back deep, examining the backstories of the defendants, John Lawrence and Tyson Garner, as well as the police carrying out the arrest, the lawyers hired to take the case, and the slow winding trail up the court system. You learn that Lawrence and Tyson were not the "ideal" gay couple that would have made them darlings in the public eye. In fact, the lawyers tried to keep them out of the spotlight to avoid letting their dirty laundry muck up the court case.
The situation at the Supreme Court also seemed like a different era. Scalia and Thomas were the only real crazies. O'Connor, Kennedy, both relative moderates appointed by conservative presidents, could swing either way.
An inspiring story, and I'm glad to educate myself a little bit more in these important milestones in civil rights.
August 27, 2023
This was fascinating to read. I had known that Lawrence and Garner were not the model clients usually picked for strategic litigation, but this book added a lot of depth. The biggest surprise was, of course, the story of the night that lead to the arrest and brought the whole process into motion. The book also shows very well how sometimes bad actions - particularly those by the officer in charge that night - can lead to good results. I was a bit underwhelmed by the analysis of the litigation‘s mainstreaming strategy. It was illuminating to read it in so much detail, but I would have expected - in a treatise of a booklength - to read more critical engagement. It is only mentioned once - Katharine Franke’s critique of „domesticated liberty“ and then glossed over. I found this frustrating considering the length of the book.
April 13, 2025
Thoroughly researched, and fascinating read. My favourite lines quoted in the book:
"The tremor in his voice returning, Kennedy closed with thoughts about the larger meaning of the Constitution’s protection of liberty:
"It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary [or] proper in fact, serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
"
"The tremor in his voice returning, Kennedy closed with thoughts about the larger meaning of the Constitution’s protection of liberty:
"It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary [or] proper in fact, serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
"
September 19, 2022
lawrence v. texas is an absolutely bonkers case. like take how weird you may have heard it was, and triple it. carpenter captured that chaos, while keeping the focus on the objective: getting rid of anti-sodomy laws. this book was definitely nerdy enough to make legal nerds happy, but is absolutely readable for those less nerdy. the libertarian vibes came off here and there, but generally it felt pretty even. i'd absolutely recommend.
June 9, 2020
Told in a more journalistic style, which I think causes the story to lose a bit of the human focus, though the author repeatedly says it. Showing more, rather than telling, would have given it an extra edge, but this is a finely researched piece of work and includes detailed analysis of the finer points of the case.
October 25, 2018
Pretty compelling if legal ticktocks are your thing. The intersection of race and gender in this casee makes this account very timely.
August 5, 2020
Interesting parts, but by not really a page turner. All the "so readable" reviews are by lawyers and law students.
November 23, 2020
A little more very specific details on the legalese and the minor characters than I was looking for. Interesting, but I don’t really recommend it.
February 19, 2021
The beginning reads like a history textbook. It does a good job covering all aspects of the Supreme Court case. The chapter covering the oral arguments and decision were gripping.
Read
September 22, 2021Read this for class, I don’t love non-fiction so it will not be getting a review. That is a waste of time. But it’s an important and interesting read nonetheless.
May 30, 2022
Very interesting look at a monumentally important Supreme Court case.
February 13, 2024
Didn’t get to finish it 100% but what I did read was so so good. It explains EVERYTHING so so clearly about the case. I didn’t realize how impactful Lawrence V Texas was until.
August 13, 2025
Recommended by my Con Law prof. The organization and storytelling of this book was phenomenal and so educational.
February 15, 2025
Bloated and occasionally repetitive, but informative and well-detailed
December 11, 2024
Fascinating account of a landmark case. I think the book could have made some of its arguments a bit stronger, but I would absolutely recommend this to anyone interested in gay history, the law, etc.
July 28, 2016
I picked up Flagrant Conduct after hearing about the Lawrence v. Texas case on Radiolab's new spinoff podcast about the Supreme Court, More Perfect (check it out, it's fascinating!). I remembered the case from high school government class--we were taught only that Texas police had mistakenly thought there was a gunman in an apartment, and instead walked in on two men engaging in sex who were subsequently arrested under the state's antisodomy law. The real truth is, as always, more nuanced and interesting.
For reasons well discussed in Carpenter's book, the defendants in Lawrence v. Texas were shielded from the media, who surprisingly respected their privacy. This plus the expert strategy of their attorneys (led by Lambda Legal) meant that much of the public is unaware that the sexual act the police claimed to witness was unlikely to have ever happened at all. This very fact illuminates the real issue with the Homosexual Conduct Law that was overturned by the Supreme Court: it was in practice not a conduct law, but a "status" law, effectively making being homosexual illegal. The status of gay Americans as criminals permeated into their lives in myriad ways.
Carpenter organizes his book into three parts. First he explains the historical context of gay discrimination, antisodomy law, and the gay rights movement, especially in Texas. He covers the actual arrests of Lawrence and Garner and what most likely had happened that night. Finally, he delves into what happens after the arrests, ending with the Supreme Court decision and an epilogue about the state of gay rights in our country and the lives of Lawrence and Garner after the fact. Each chapter is informed by interviews from parties involved in the defense and state sides.
This book is generally an easy read. The chapters explaining the Supreme Court briefs and oral arguments might require a little extra rereading for those who are less familiar with constitutional argument. I thought Carpenter expertly wove the human story within the legalese, which keeps the story engaging. I'd recommend Flagrant Conduct for anyone who is interested in LGBT issues, law in general, and the fascinating process of bringing a case in front of the Supreme Court.
For reasons well discussed in Carpenter's book, the defendants in Lawrence v. Texas were shielded from the media, who surprisingly respected their privacy. This plus the expert strategy of their attorneys (led by Lambda Legal) meant that much of the public is unaware that the sexual act the police claimed to witness was unlikely to have ever happened at all. This very fact illuminates the real issue with the Homosexual Conduct Law that was overturned by the Supreme Court: it was in practice not a conduct law, but a "status" law, effectively making being homosexual illegal. The status of gay Americans as criminals permeated into their lives in myriad ways.
Carpenter organizes his book into three parts. First he explains the historical context of gay discrimination, antisodomy law, and the gay rights movement, especially in Texas. He covers the actual arrests of Lawrence and Garner and what most likely had happened that night. Finally, he delves into what happens after the arrests, ending with the Supreme Court decision and an epilogue about the state of gay rights in our country and the lives of Lawrence and Garner after the fact. Each chapter is informed by interviews from parties involved in the defense and state sides.
This book is generally an easy read. The chapters explaining the Supreme Court briefs and oral arguments might require a little extra rereading for those who are less familiar with constitutional argument. I thought Carpenter expertly wove the human story within the legalese, which keeps the story engaging. I'd recommend Flagrant Conduct for anyone who is interested in LGBT issues, law in general, and the fascinating process of bringing a case in front of the Supreme Court.
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