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.