Lawrence v. Texas: Extreme Truth

Cross-posted on the Huffington Post.

The 2003 Supreme Court decision in Lawrence v. Texas, striking down all remaining state sodomy laws, changed the legal landscape for lesbian, gay and bisexual people in America forever. In his stirring opinion Justice Anthony Kennedy wrote, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” With these words, centuries of legal discrimination that damaged and sometimes destroyed the lives of LGB people crumbled.

In Dahlia Lithwick’s review in The New Yorker (Mar. 12) of Dale Carpenter’s new book about the Lawrence case, Flagrant Conduct (Norton), she recounts Carpenter’s version of the events leading up to the arrest of the defendants, John Lawrence and Tyron Garner, in which Carpenter concludes that Garner and Lawrence were merely acquaintances who may not have been having sex when the police stormed into Lawrence’s apartment and arrested them. She accepts Carpenter’s conclusion, then writes: “That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex.”

I strongly disagree. That certainly was not the punch line for the hundreds of thousands of gay men and lesbians who were finally relieved of the harms and the daily fear caused by laws that criminalized their sexuality.

The issue in Lawrence v. Texas was not about what was going on in John Lawrence’s bedroom, but rather about the conduct of the government and the unconstitutionality of the law that authorized its actions. Houston police officers arrested, handcuffed and dragged John Lawrence and Tyron Garner out of Lawrence’s apartment because they felt empowered to do so by Texas’ “Homosexual Conduct Law” that made private, consensual sex between adults of the same sex a crime. More than a decade earlier, well-known lesbian attorney Mary Dunlap said about Bowers v. Hardwick, the earlier case in which sodomy laws were upheld, “The question is not what Hardwick was doing in his bedroom, it is what the State of Georgia was doing there.” The very same question applied in Texas.

We got the Supreme Court to strike down Texas’ law and every remaining sodomy law in 12 other states. That is what impact civil rights litigation is about and why we are proud to use it as a tool to end discrimination.

In reviewing Carpenter’s book, Lithwick highlights remembered information that may make the book a good read, but legally is beside the point: The four police officers now disagree about what they saw. There was a sexualized picture of James Dean on the wall. John Lawrence himself reportedly said that he was partially clothed when the police arrived, getting ready for bed. Imagine if bad erotic artwork and the moral condemnation of local police officers were enough to get anyone who they claimed to be in a private sexual encounter arrested?

Whether or not these facts are true or a collection of unreliable memories, the purpose and consequence of the litigation in Lawrence does not change: The Constitution prohibits the government from intruding on and punishing the private, consensual intimate relations that we have. “Liberty presumes an autonomy of self,” the Court wrote, “that includes freedom of thought, belief, expression, and certain intimate conduct…”

While acknowledging that Carpenter makes clear that the litigation team never misrepresented any facts, Lithwick questions whether Lambda Legal dressed up the story to make it about love and relationships. She writes: “In short, the legal issue was not that free societies must let drunken gay Texans have sex; it was that gay families around the country, in the words of one of the lawyers in the case, ‘are essentially just like everybody else.’”

I have been the Executive Director of Lambda Legal for 20 years, and I am happy to respond to Ms. Lithwick: yes, yes and yes. We never misrepresented the facts nor dressed up the story; sodomy laws did prevent loving couples from celebrating and protecting their relationships, children, jobs and security; and whether in committed relationships or casual ones, lesbian, gay and bisexual people are entitled to privacy and dignity “just like everybody else.”