Flagrant Conduct Read online

  Flagrant Conduct

  The Story of Lawrence v. Texas

  How a Bedroom Arrest

  Decriminalized Gay Americans

  Dale Carpenter

  W. W. NORTON & COMPANY

  NEW YORK LONDON

  For my family,

  all of it

  “YOU DON’T HAVE ANY RIGHT TO BE HERE.”1

  Contents

  INTRODUCTION

  Part One Before the Arrests

  1. A Crime of Deep Malignity

  2. The City and the Cause

  3. The Defendants and the Troublemaker

  4. The Department and the Deputies

  Part Two The Arrests

  5. The Intrusion

  6. Uncivil Disobedience

  7. A Probable Explanation for an Improbable Case

  8. The Homosexual Status Law

  Part Three After the Arrests

  9. From the Jail to the Bar

  10. From the Gay Bar to the Bar

  11. Into the Texas Courts

  12. The Constitutional Case Takes Shape

  13. The Politics of Law

  14. The Constitutional Mainstream

  15. Mismatch at the Supreme Court

  16. Respect for Their Private Lives

  Epilogue Sweet Land of Liberty

  ACKNOWLEDGMENTS

  NOTES

  BIBLIOGRAPHY

  INDEX

  PHOTO INSERT

  Introduction

  NO ONE COULD HAVE PREDICTED THAT THE NIGHT OF SEPTEMBER 17, 1998, would be anything but routine in Houston, the city of skyscrapers and strip malls and bayous sprawling across the southeastern corner of Texas. A languid, petroleum-sweet air, typical for late summer, hung over the city’s east side. Certainly nobody expected that an arrest that night of two gay men for a minor criminal offense would reverberate in American constitutional law, challenging not only the traditional understanding of what makes a family but also the proper role of government in maintaining that understanding. Nobody foresaw the cultural storm that would gather from the events that transpired in a modest second-floor apartment. Nor could anyone have foreseen how a single arrest might expose the deep malignity in a law that was superficially directed at certain conduct, but that in practice was used to brand an entire group of people as strangers to moral tradition.

  Even a call to the police that someone was “going crazy with a gun” in an apartment complex known for late-night shenanigans, while dramatic, was hardly out of the ordinary. When Harris County sheriff’s deputies arrived minutes later, they did not find a crazed gunman, but they did report that they caught John Lawrence and Tyron Garner in flagrante delicto, having anal sex inside Lawrence’s bedroom. While that act would hardly have been shocking sexual conduct for gay men, it was extraordinary for police officers actually to witness it in the privacy of a home. And the act was still considered extraordinary—criminal, “deviate” sexual activity—under Texas’s Homosexual Conduct law.1 The deputies hauled the offending men to jail for the night. Gay-rights lawyers took their case, Lawrence v. Texas,2 to the Supreme Court, which struck down the Texas sodomy law3 and similar laws in twelve other states. More than that, though, the Court delivered a potentially lethal blow to the constitutional legitimacy of homosexuals’ second-class status, including their exclusion from marriage.

  However, that is getting ahead of the story, which opens a door into not only a bedroom but what already may seem like a buried past. The bare-bones version of Lawrence told in arid (some would say airy) judicial opinions is in almost every important respect incomplete and questionable. It flattens a complex web of emotions, motivations, and deceptions. It omits the accidents and serendipity without which the case would have been lost to history. It neglects the civil disobedience, heroism, and deep prejudices that animated those involved at every level of the case. It ignores the presence of gender, race, age, and class pulsing in the background.4 It naïvely accepts the word of law enforcement authorities who harshly, and perhaps deceitfully, enforced a law that remained on the criminal statute books like an unused whip. It neglects the role the closet played in bringing the arrest of Lawrence and Garner to light, given the fortuitous presence of a closeted sheriff’s sergeant and his partner, who was himself a closeted clerk for the judge in whose jurisdiction the arrest happened to occur. It disregards the bartender cum activist who had already come out as gay, recognized the moment, seized it, and helped broaden the sweep of civil rights history.

  The pancaked conventional tale remains—years after the landmark Supreme Court decision in Lawrence v. Texas—a stubborn myth. This book attempts to correct and enrich our understanding of the case, by ferreting out what happened that September night in Houston and by explaining the way gay civil rights lawyers rewrote a snarled human story as part of a pristine legal argument acceptable to a basically conservative Supreme Court.

  Based on my research, including interviews with most of the important participants in the events and their immediate aftermath, I come to a surprising, but only probabilistic, conclusion: it is unlikely that sheriff’s deputies actually witnessed Lawrence and Garner having sex. As we shall see, John Lawrence himself now flatly denies that Garner and he were having sex. Even assuming they were having sex when sheriff’s deputies entered Lawrence’s apartment, they had probably disengaged by the time the deputies saw the men. If the police did not observe any sex, the whole case is built on law enforcement misconduct that makes it an even more egregious abuse of liberty than the Supreme Court knew.

  Flagrant Conduct proceeds chronologically through three main parts. Part I (“Before the Arrests”) examines the historical context for the arrests, including a discussion of the background of each of the major participants. Part II (“The Arrests”) revisits the night of the arrests, presenting the versions offered by the police and by the defendants and addressing claims of a conspiracy or setup to challenge the state sodomy law. Part III (“After the Arrests”) looks at what happened after the arrests, as the case went from a simple charge of petty crime to the highest court in the land. It also affirms that the case had broad national implications that have continued to richochet well beyond the state lines of Texas.

  The book then concludes with a description of the historic scene as Justice Anthony Kennedy announced the Court’s decision to a courtroom packed with people who had devoted much of their lives to ending discrimination against gay men and lesbians. It tells of the spontaneous joy that then erupted from one coast to the other on the eve of what happened to be gay-pride weekend in June 2003.

  In the course of telling the story of Lawrence v. Texas, the book exposes both the peculiar corrupting quality of laws that target a class of persons for moral opprobrium and the distance such laws place between the targeted class and the rule of law. If John Lawrence and Tyron Garner were indeed arrested based on a fabrication by sheriff’s deputies, their arrests are redolent with the long and noxious history of a bad law maliciously enforced. But even the uncontested facts of the case—including the discretionary decisions to cite the men and to send them to jail for the legal equivalent of a speeding ticket—expose how police power can be used capriciously and invidiously against the class targeted by such a law. Under such conditions, police could, and often did, misuse their authority to make arrests based on nothing more than the personal revulsion they felt at seeing things that disgusted them. Or they could, and did, misuse their authority whenever it was challenged by a person whose very existence disgusted them.5

  If anyone set up the events that led to Lawrence, as some have claimed, it was surely not gay activists. It was inadvertently the authorities who arrested the men. Since sodomy laws, like the one in Texas, were never really about stopping sodomy, it is
fitting that they got their comeuppance in a case in which there was probably no sodomy. A law rarely enforced was upended in a case of phantom enforcement. The laws that encouraged gays to lie about their identity were buried in an avalanche of untruths and half-truths triggered by the authorities enforcing them. Sodomy laws were ultimately the victim of overzealous police who had been taught their antigay zealotry in part by sodomy laws themselves.

  There was plenty of flagrant conduct in Lawrence v. Texas. But this epithet, so often directed at gays and lesbians, does not describe the behavior of Garner and Lawrence on the night they were arrested, even if the police really did intrude upon them in flagrante. The flagrant conduct in the case was, in the first instance, the behavior of the police themselves, from the moment they handcuffed the two men to the moment they dragged John Lawrence out of his own apartment. The flagrant conduct was the use of precious prosecutorial time and money to pursue two men for sex in a private home rather than to pursue truly public and genuinely harmful acts. The flagrant conduct was the cowardice of elected state court judges who refused even to listen to the men’s legal claims, shifted responsibility to other courts, and likely capitulated to political pressure. The flagrant conduct was the blatant effort by a political party to make judges enforce their policy preferences. The flagrant conduct was the passage of a law selectively burdening one small group of people on the pretext of preserving a moral heritage applicable to all. And the flagrant conduct was the refusal of those stalwart legislators, year after year, session after legislative session, decade after decade, to repeal that law, even when it became obvious that it served no public purpose other than to justify discrimination and to dignify animus in every realm against a tiny minority.

  Sodomy laws taught lessons—well learned in Houston—to both homosexuals and heterosexuals. Generations of homosexuals learned silence and shame. Heterosexuals learned privilege and power. The laws conditioned gay men and lesbians to pay their fines and meekly move on. The same laws taught officers of the Harris County Sheriff’s Office to write whatever they wanted on an arrest report about flagrant homosexuals without fear of contradiction or repercussion.

  By 1998, gay men and lesbians, even those living in the bayous of life, had begun to bridle that silence and shame. Twenty-nine years after the eruption by gays against police abuse at the Stonewall Inn in Greenwich Village, they were no longer following the old script. Silence had yielded to organization; shame, to resistance.

  Lawrence v. Texas is connected umbilically to a storied gay past, in all of its legal, sexual, socioeconomic, racial, and gendered complexity. The case was conceived in bars, cloaked in closetedness, nourished by political liberation, and fired by encounters with police repression and corruption. It was born into a rebellion against discrimination and stigma. In Lawrence, we have the closet as metaphor and the closet as reality, with its uses both as shield and sword against oppression. We have as well the related metaphor of coming out, including its essential personal and political dimensions, its fear, and its power. We have the bar as a site for political organizing, just as it was in the early days of the gay civil rights movement. We have the law, deformed by ignorance, pressing itself into the lives of marginalized people. We have resistance, generated not by abstractions but by experience. Here, in one case, we have a microcosm of the fight for equality under a regime of inequality. Lawrence challenged not only the American legal order but ultimately the cultural assumptions that undergirded it.

  Part One

  ...

  BEFORE THE

  ARRESTS

  1.

  A Crime of Deep Malignity

  WHEN POLICE ENTERED THE HOME OF JOHN LAWRENCE IN SEPTEMBER 1998, four hundred years of history had preceded them. Even before their ancestors arrived in America, men like Lawrence and his codefendant in Lawrence v. Texas, Tyron Garner, were reviled. The diary of one immigrant, the Reverend Francis Higgeson, recorded what happened to five males caught in sexual “wickedness” with one another during a voyage from England in 1629: “This day we examined 5 beastly Sodomiticall boyes, which confessed their wickedness not to bee named. The fact was so fowl we reserved them to bee punished by the governor when we came to new England, who afterward sent them backe to the company to be punished in ould England, as the crime deserved.” Sodomy, as the governor well knew, was punishable in England by hanging.1

  Sir William Blackstone, in his Commentaries on the Laws of England, fulminated against sodomy as “the infamous crime against nature, committed either with man or beast . . . the very mention of which is a disgrace to human nature.” A crime of such “deep malignity” was “not fit to be named.” Blackstone alluded to the biblical origins of the word “sodomy,” derived from God’s destruction of Sodom and Gomorrah for, according to a common interpretation, the cities’ sexual perversion.2 Historically, he noted, sodomites had been publicly burned at the stake or buried alive.3

  The English revulsion to “unnatural” sexual intercourse—understood to include anal sex and sometimes oral sex as well, no matter whether the offending couple was two men or a man and a woman—was passed on to the colonies, just as many other English legal principles were.4 The earliest known colonial antisodomy law was enacted in Virginia just three years after the first permanent English settlement was established at Jamestown. In the 1610 code establishing martial law in the colony, the ninth provision, which also made adultery a capital crime, declared, “No man shall commit the horrible, detestable sins of Sodomie upon pain of death.”5 Antisodomy statutes were not limited to Virginia. The Plymouth colony listed eight capital offenses in 1636. In addition to murder, treason, and arson, the colony also punished by death the “solemn compaction or conversing with the devil by way of witchcraft,” adultery, and “sodomy, rapes, [and] buggery.”6 Drawing directly on the prohibition, language, and penalty prescribed in Leviticus, the 1671 version of the Plymouth law offered only slightly more detail: “If any Man lyeth with Mankind, as he lyeth with a Woman, both of them have committed Abomination; they both shall surely be put to Death, unless the one party were forced, or be under fourteen years of Age: And all other Sodomitical filthiness, shall be surely punished according to the nature of it.”7

  Colonial Maryland’s law likewise prohibited “buggery.”8 A 1641 Massachusetts law punished by death “any man” who worshipped any god “but the Lord God,” “any man or woman” who “be a Witch,” “any person” who shall “blaspheme the Name of God,” “any man or woman” who shall “lie with any beast, or brute creature, by carnal copulation,” “any person” who committed adultery, and “a man who lyeth with mankind, as he lyeth with a woman.”9 Similar laws against idolatry, witchcraft, blasphemy, adultery, bestiality, and sodomy were written into the early codes of all the colonies.10

  Through the nineteenth century and well into the twentieth, every state in the United States had laws prohibiting anal sex, often called in state statutes “crimes against nature,” “sodomy,” or “buggery.”11 During the same period, states also began specifically prohibiting oral sex. Prior to the late 1960s, such laws applied regardless of the sex of the participants in the act and regardless of whether the couple was married. A husband and wife who engaged in oral sex were potentially as guilty as two men who had anal sex. This reflected the moral view that all sex outside of marriage, and all nonprocreative sex within marriage, were improper expressions of human sexuality. However, there was little enforcement of the laws against private sex between consenting adults,12 and what occasional enforcement there was fell most harshly on homosexuals.

  Pre–Civil War sodomy laws were especially vague, in keeping with the Blackstonian idea that it was a crime “not fit to be named.”13 Many states simply banned the “crime against nature” without specifying what this meant—although there was little confusion about the assumed meaning. Whatever their particular phrasing, the laws and the acts they prohibited generated little public concern before the Civil War. New York City, for example, pros
ecuted a mere twenty-two sodomy cases between 1796 and 1873.14

  After the Civil War, the country became increasingly industrialized and, with that, rapidly urbanized. Abandoning small towns and farms, throngs of Americans were joined by millions of immigrants in growing cities. In addition to economic opportunity, these cities offered anonymity and separation from extended families. Large cities brought together people with a variety of sexual desires and afforded more opportunity to satisfy these varied tastes. By 1881, homosexual subcultures existed in New York, San Francisco, St. Louis, Philadelphia, Chicago, Boston, New Orleans, and Washington, D.C.15

  Reacting to the exponential growth of these subcultures and a feared loosening of moral constraints, cities and states began more aggressively regulating sexuality.16 Although state sodomy laws played a role in the repression of homosexuality, they had not yet become the main tool of enforcement. Yale law professor William Eskridge has identified four primary categories of early state and municipal laws intended to constrain deviance: laws against cross-dressing; laws against public indecency and sexual solicitation, including those against “disorderly conduct” and “lewd vagrancy”; laws against child molestation; and laws against obscenity.17

  Some of the laws enacted during this period seem especially draconian by today’s more liberal standards. A 1911 Massachusetts statute allowed the state to incarcerate “degenerates,” including homosexuals, and other “mental defectives” for indefinite periods of time in state mental institutions. More commonly, state laws called for the sterilization or castration of moral degenerates and sexual perverts, usually for homosexual behavior. In an effort to “treat” homosexuals, hospitals performed prefrontal lobotomies, injected massive doses of male hormones, and administered electric shock and other aversion therapy.18