As the United States Supreme Court prepares to hear oral
arguments challenging the constitutionality of laws defining
marriage as the union of one man and one woman, some of the
Justices may recall that it was ten years to the day that they
began hearing the case that made this one possible. On March 26,
2003, oral arguments began in Lawrence v. Texas—a case
challenging the constitutionality of anti-sodomy laws—a case that
Justice Antonin Scalia predicted would open the door to “judicial
imposition of homosexual marriage.”
Scalia was right. Lawrence held that intimate
consensual sexual conduct was part of the liberty protected by due
process under the 14th Amendment. Writing for the dissent in
a six-to-three decision which struck down sodomy laws as
unconstitutional, Scalia joined Justice Clarence Thomas and
then-Chief Justice William H. Rehnquist in accusing the majority of
“taking sides in the culture wars” and ending all “morals
legislation.” Justice Scalia knew then—as he knows now—that
Lawrence v. Texas was just the latest extension of the
Court’s growing acceptance that it can no longer adopt moral
sanction or moral views against such conduct.
Justice Anthony Kennedy’s majority opinion in Lawrence
held that “when 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.” But what the Justices may
not have known in 2003 was that the narrative surrounding the
plaintiffs in Lawrence was always a lie.
Flagrant Conduct, a book published last March by Dale
Carpenter, a professor at the University of Minnesota Law School,
reveals that not only is Lawrence not a case about what
Justice Kennedy would have defined as a loving relationship, it may
not even have been a story about consenting adult sex.
According to Carpenter, John Lawrence, age 55, and Tyron Garner,
age 31, the plaintiffs in the case, were partying in Lawrence’s
apartment with Garner’s lover, Robert Eubanks—a homeless man with a
drinking problem. Lawrence had a long list of drunk-driving
violations himself, including a conviction for murder by automobile
in 1967. The men were all very drunk and planning to spend the
night with Lawrence. But the party ended abruptly when Eubanks
seemed to have thought that Garner was flirting with
Lawrence. Leaving the apartment in a jealous rage, Eubanks
then called the police to falsely report “a black male going crazy
with a gun” at the apartment. Garner was black, Lawrence was
white.
When the police arrived, Eubanks directed them to Lawrence’s
unlocked apartment where two of the four responding officers
claimed to have seen the men engaging in what was then unlawful
sexual intercourse. But the two officers gave completely different
descriptions of what they saw. The other two officers said they saw
nothing. Despite all this, Eubanks was charged with making a false
report, and Lawrence and Garner were eventually charged with
“deviate” sexual behavior. But realizing how difficult it would be
to find a case to challenge the Texas sodomy statute, national
gay-rights advocacy groups effectively repackaged the sordid story
of Lawrence and Garner into a love story—with heroic lovers
struggling to solidify their bond in a society that despised
them.
As Dahlia Lithwick wrote in a New Yorker
review of Carpenter’s book, “Nobody had to know that the
gay-rights case of the century was actually about three or four men
getting drunk in front of a television in a Harris County apartment
decorated with bad James Dean erotica.” And until Carpenter’s book
was released in 2012, no one ever knew. And, more importantly, no
one really cared then or now about John Lawrence or Tyron Garner,
who were deemed useful at the time, but were no longer needed once
the case was decided. For a while, Garner appeared to show some
promise as a spokesman for the struggle for gay rights. But, as
Lithwick points out, after he gave a drunken speech at a black-tie
dinner in the plaintiffs’ honor, that idea was scratched. Garner
died five years ago at the age of 39: “When Lambda Legal was unable
to raise funds for a proper memorial or burial, Harris County
cremated him and sent his ashes home to his family in a plastic
bag.”
It is not difficult to predict the kinds of stories of struggle,
love, and discrimination that will be presented to the Court in
oral arguments on March 26 and 27. One of the plaintiffs is an
83-year-old woman who has already described her life as one of
“living in the shadows” as a lesbian. Her complaint is that she had
to pay a tax of $363,053 when her same-sex spouse died four years
ago and left her an estate. Had she married a man, she would not
have had to pay the taxes. Her story will move many—perhaps even
some of the Justices—even though her claims have little to do with
what is written in the Constitution.
