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Welcome a new diarist, scaboni! This is his first offering, and we're very happy to publish it in this series. Lawrence v Texas is a very important case in LGBT history, and, in the wake of the vote in Minnesota yesterday, this diary is especially appropriate.  --- Dave in Northridge

"We don't need a law like that on the books . . . "  Those words stunned me as my mother said them. She elaborated that firing people was difficult enough for employers without these kinds of laws in place.  This was yet another loophole the lazy, disreputable and incompetent would use to tie the hands of their employers and keep their jobs when they should be fired for cause.  It was the fall of 1984 in Houston, Texas. That summer, Houston's City Council had included "sexual orientation" in the list of classes protected from discrimination in city employment. A referendum vote was put forward to repeal the City's Council's measure. A senior in high school and not yet able to vote, I had asked my mother how she planned to vote.

This was the memory that played back in my head as I read chapter 2 of Dale Carpenter's Flagrant Conduct (The Story of Lawrence v. Texas).  Carpenter's book chronicles the origins and outcome of the U.S. Supreme Court's 2003 Lawrence v. State of Texas ruling that effectively decriminalized gays and lesbians nationally. A law professor at the University of Michigan and a Texan by birth, Dale Carpenter tells the story not only through its factual, historical record, but frames it in the social, political and legal environments of its time. Carpenter's goal isn't just to tell what happened, he wants the reader to understand it in plain language and reason through the arguments and conclusions drawn by our legal system. It's this approach that makes reading Flagrant Conduct a compelling and memorable experience.

Carpenter breaks up the story into three distinct parts. The first explores the historical treatment of gays and lesbians, particular in the city of Houston, before the events of Lawrence. It also provides background on the key participants whose actions on the night of September 17th, 1998 would form the foundations of Lawrence v. Texas. The second part attempts to detail the "crime" itself, and how the allegations may have actually been untrue from the start. The third and final part comprises more than half of the book, describing the events immediately following the arrests, the progression of the legal challenge through the courts and culminating in the U.S. Supreme Court's ruling and analysis of its meaning.  

While some states had begun to alter or abandon their archaic sex laws in the 1960's, the Texas state legislature took the opportunity in 1973 to relax the rules for all heterosexual couplings while retaining its moral disapproval of homosexual sex.  The 1973 revision was significant in that it criminalized all "homosexual conduct", thereby making lesbian sex illegal for the first time in state history.  In contrast, Texas heterosexuals could now engage in sodomy to their heart's delight free from fear of any legal repercussions, whether married to their partners or not.  Same-sex partners committing the same acts would be a charged with a misdemeanor and fined up to $200.  Perhaps the legislature thought we should be grateful that it was no longer a felony carrying a minimum 2 years prison sentence (up to 15 years maximum).

One of the more powerful aspects of Flagrant Conduct is the manner in which it illustrates how the criminalization of gay and lesbian sex impacts the psyche of those it targets.  Prior to 1973, gay men risked prison time for sex.  After 1973, they would plead guilty to a misdemeanor, pay a fine and try to keep their arrest and conviction quiet.  While $200 could have been called a slap on the wrist, the arrest and prosecution for homosexual conduct would almost always impact their employment, housing, and interpersonal relationships.  Police notified employers of arrests.  Names were printed in newspapers. Carpenter documents that one employer went so far as to hire a private investigator to note the license plates of cars parked near gay bars, then fired any employee whose license plates appeared on the list.  Secrecy was key to survival - something completely at odds with the emerging LGBT pride movement.  To cope with life "in the closet", many resorted to alcohol and drug use in varying degrees.  As our family physician told me in 1983, "choosing the gay lifestyle" meant an "unhealthy, unhappy and self-destructive existence".  As criminals, that is what we and the communities around us were taught to expect from us.

In January of 1985, a referendum on the Houston City Council's inclusion of sexual orientation in the anti-discrimination ordinance was held.  The ordinance really only protected city workers from discrimination - but that wasn't the issue according to the signs, placards and flyers posted throughout the city.  Religious conservatives conducted a malicious campaign as if the referendum were Houston's only hope to drive homosexuality back into the closet.  Foundless arguments were advanced as fact: homosexuals were ill, violent, diseased; they recruited children; videos promoting gay stereotypes were circulated.  The KKK protested.  A friend of our family had started a video matchmaking service for gay men - it was destroyed in a suspicious fire that was believed to be arson.  The referendum repealed the City Council's motion by a margin of 80%. By popular vote, the city declared its homosexual citizens untouchables  I left Houston for San Francisco in August of 1985.

In 1986 the U.S. Supreme Court handed down its Bowers v. Hardwick ruling, not only upholding the right of states to criminalize and penalize sodomy but proclaiming that the Constitution did not guarantee "a fundamental right to engage in homosexual sodomy." Then Chief Justice, Warren Burger slathered the LGBT community with further disdain in a concurring opinion citing the "ancient roots" of prohibitions against homosexual sex, referring to it  an "infamous crime against nature", worse than rape, and "a crime not fit to be named." Burger expounded: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."  Bowers v. Hardwick was intended to be smack-down for LGBT rights.  And for a time, it was. But Bowers had an unintended effect: it didn't sit well with LGBT Americans and those around them who cared for their well-being. In the agony of the AIDS epidemic, LGBT Americans and their supporters drew together and widened their circles of support.  A growing number of people now wanted to see change.

It should come as no surprise that finding a defendant that pled guilty to homosexual conduct willing to further challenge the constitutionality of the law would be difficult.  The aggrieved parties would be putting their personal lives at stake, possibly risking their jobs and homes, perhaps even friends and families. Uneven and selective enforcement of the law meant most potential cases involved other issues that endangered a review of the issue on its merits alone. Arrests resulting from raids of bars and cruising spots introduced the spectre of sexual activities occurring in a public context - an obstacle that even heterosexual offenders couldn't always overcome.  To litigate Texas' Homosexual Conduct law, the law would need to have been enforced in a private context, one in which the spectre of public observation was absent  The arrests of John Lawrence and Tyron Gardner on the evening of September 17th, 1998 provided both the parties and circumstances that satisfied the necessary conditions to move a challenge forward.

Flagrant Conduct reveals much that we would otherwise never know. There were people watching, waiting, poised and ready to act. Immediately following their arrests, Lawrence and Garner had support and guidance from members of Houston's organized LGBT community. Efforts were made at the onset of the legal challenge to keep the lives of Lawrence and Garner, and the conflicting accounts of what happened that night, from becoming the focus of the case. Pleading guilty to the charges and being fined, they gained standing to challenge the law as aggrieved parties.  They were kept out of the public eye as much as possible. The focus of Lawrence (and Garner's) challenge was not to be themselves, but whether Texas or any other state could intervene something as intimate and fundamental as their private sex lives.  Flagrant Conduct fills in details of the events from interviews with Lawrence, Garner and the two Harris County Sheriff's Department deputies that arrested them, Quinn and Lilly. What we learn casts none of the parties in a favorable light, making it all the more important that the focus of the case was kept on the issue instead of the men involved.

The book follows the progression of the case through the Texas state and U.S. federal court systems, analyzing the actions and strategies employed on both sides.  Carpenter explores how constitutional arguments are framed and tested, revealing how some may be favored by the public but fail to convince the court. Parts of the nation had already arrived at the decision to ban discrimination on the basis of sexual orientation, but challenging such discrimination at the national level would be asking too much of the court.  Carpenter takes us through the construction of the briefs supplied to the U.S. Supreme Court and the careful consideration given to their contents. At the heart of the plaintiff's arguments was that adults have "a fundamental right" to "be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression". Even if such a right was not conceeded, the state had "no legitimate and rational justification" for treating same-sex couples differently.

Carpenter grants us the catharsis we deserve by recounting the oral arguments and questions posed by the justices. Justice Scalia's funny vulgar attempt to reduce the issue before the court to a sex act by referencing the repeal of "flagpole-sitting" laws is presented not just for humor, but to underscore how it was used to denigrate and ridicule the case for LGBT Americans. A gay man and former clerk to Justice Lewis Powell (the swing vote in Bowers v. Hardwick who later regretted his decision), Paul Smith politely countered Scalia's subterfuge and focused his attention on addressing the concerns of the justices who hadn't already decided their vote. Carpenter contrasts the preparedness of the plaintiffs against the lackluster defense presented by Harris County D. A., Chuck Rosenthal, who decided to argue the case himself at the 11th hour.  A muddled, Bower's driven defense of Texas' Homosexual Conduct law, the case for the State of Texas relied on the court's prior animus to rule in their favor. Carpenter closes his  recounting of the oral arguments and sets the stage for Justice Anthony Kennedy's majority opinion by revealing that in a hour of arguments the terms "anal sex" and "oral sex" had not been mentioned once.

In writing a review of Flagrant Conduct, it is impossible to convey the commitment to detail and respect with which the Lawrence v. Texas story is told. In our media hungry age, we follow things in small pieces of available information. Dale Carpenter's book picks up those threads and weaves together a tapestry for everyone to understand this important milestone in LGBT history.

In a segment exposing the shennanigans of Politifact, Rachel Maddow reported that Martina Navratilova was "fact-checked" recently on her assertion that it is currently legal in 29 U.S. states to fire an employee on the basis of their sexual orientation.  What Martina said is actually true - there are no laws in 29 states that prevent an employer from firing an employee because they are or the employer believes them to be homosexual.  Even after 10 years of being nationally legal, it seems like we might still need that law on the books . . . huh, Mom?

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Originally posted to Readers and Book Lovers on Tue May 14, 2013 at 05:00 AM PDT.

Also republished by Remembering LGBT History and Community Spotlight.

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