Author: Dale Carpenter
Title: “Flagrant Conduct: The Story of Lawrence v.
Texas”
Subtitle: “How a Bedroom Arrest Decriminalized Gay
Americans”
Publication: 2012, W.W. Norton, ISBN
978-0-393-06208-3, hardcover, 345 pages, indexed, 3 Parts, 16 chapters,
Introduction, Epilogue.
Amazon link:
My first reaction to the title is to remember Randy
Shilts and “Conduct Unbecoming” (1993), and in fact, University of Minnesota
law professor Dale Carpenter here makes the case that repealing Texas law 21.06
helped pave the way for repealing “don’t ask don’t tell”.
I’m getting ahead of myself, of course.
On May 17, 2008, I had reviewed William Eskridge’s
book “Dishonorable Passions” on the history of sodomy laws. Carpenter’s book is
much more focused on the detailed history of this specific case, where in
September 1998, sheriff’s deputies responded to a false weapons report and
arrested two men, John Lawrence and Tyron Garner, in their outskirts Houston garden
apartment for violation of 21.06.
Carpenter makes a detailed case that it is very unlikely that the police
really could have witnessed the “act” to a legal standard of evidence, and that
there plenty of inappropriate psychological motivations for making the false
arrest. Nevertheless, gay rights
attorneys jumped on this case (and blunder by police). The defendants would plead “no contest”; the
case would percolate upward through a clumsy Texas judicial system, and the law
would be upheld with weak rationalizations, and wind up before the Supreme
Court. Only about the last third of the
book deals with the Supreme Court case.
Younger LGBT people, caught up in today’s debates
about “equality” in marriage and the military, often seem dimly aware of what
the world was like a half-century ago, when police raided gay bars and made
false arrests, just to get men’s names “published” and get them fired. There was a time when the world often
consisted of witch-hunts, and not just in the military. Sodomy laws, by giving gay men (especially)
the status of unapprehended criminals, provided a “mechanism” for all sorts of
collateral damage. In some cities, until
the mid 1970s, gay bars were often “protected” by the Mafia and corruption ran
everywhere. These sorts of laws
encouraged corruption and deceitful law enforcement. But the same could be said of marijuana laws
today.
Carpenter argues that the real effect of laws like 21.06 were to try to outlaw homosexual status, to legally exile them from society. The first chapter is indeed titled "A Crime of Deep Malignity".
In 1986, the Supreme Court had upheld the Georgia
law, which applied to everyone, in Bowers v. Hardwick. But the majority opinion had focused on the
idea that there was no fundamental right to engage in the conduct proscribed,
even in private. The Texas law (after a
1973 revision of the Texas penal code) applied to homosexuals only, but the
majority opinion in Lawrence overturned the “reasoning” in Bowers (unusual for
the Supreme Court) and found a fundamental liberty interest in private, adult,
noncommercial and consensual intimate behavior.
My own take on this issue, for years, had followed
the concept of desuetude, and had assumed that private behavior that cannot be
proven to standards of the law should not be constitutionally
criminalized. I actually feel this way
about personal drug use. I’ve always
thought that what someone does with his own body should be outside the scope of
criminal law. That’s pretty much the
libertarian line. (Pregnancy termination
does create a debate, and legitimate conflict between rights, and I don’t have
a problem with the essential logic of Roe v. Wade.)
The state of Texas had appealed to vague notions of
implementing morality to defend the law.
Sometimes it mentioned public health, and sometimes the disintegration
of the family (particularly in conjunction with the Texas GOP platform). But the State of Texas could never explain with
much convincing social science how “homosexual conduct” affected the families
formed by heterosexuals (we still have the same debate with gay marriage).
Nevertheless, the plaintiffs, in Lawrence, took care
to argue the “due process” part of the case in terms of societal ratification
of a fundamental right – that gays have families, too. In fact, Justice Ginsberg pointed out that
Texas didn’t stop homosexuals from raising children.
I’ve always suspected that “sodomy laws” had
amounted to a proxy for (or as a way of encapsulating) a pre-existing “duty” of
people to contribute toward society’s common good in gender-related areas
involving sacrifice and risk-taking (including military service for men and
childbearing for women, in a era when it was medically more dangerous). I think they amounted to a crude way of
saying that everyone had an obligation to help provide a future generation (and
to honor past ones). It was a way to
impart a duty on everyone to add to “social capital” outside the normal economic
system. Rick Santorum, in his book [March 5, 2012 here] argued, following Scalia's dissenting "chain letter", that the Lawrence ruling would force gay marriage to be legal, and that gay marriage would send a message to many men that making an opposite-sex marital commitment in order to raise a generation of children is no longer an important responsibility; hence, by contraposition, laws like 21.06 remain necessary; it sounds like a real stretch of "compelling state interest". That’s still a disturbing thought in today’s world where we talk about
sustainability and the inability of some societies to replace themselves
without immigration, and when we face an aging population. But homosexuality is only a very small piece
of the question as to why (middle-class) people have fewer children. The main reason is the
economy. We’ve made it very difficult to
perform as a parent (after "choosing" to have children even in marriage), and discussions about how these sorts of responsibilities
are “shared” need to happen.
It gets messier, though. You can have a system where gays are accepted
as parents and as forming families and as some progressive writers like
Jonathan Rauch (“Gay Marriage: Why It is Good for Gays, Good for Straights,
Good for America”, Times, 2004) have pointed out, are actually expected
to. The moral negative becomes excessive
“upward affiliation” or dependence on fantasy, lookism, or perfectionism – but
all of these “sins” happen in the heterosexual world, too. The right wing winds up having to explain (outside
or religious scriptures) why the mechanics of intercourse and the anatomical
difference between the genders is so important in raising children or in
sustaining marriage. Ultimately, I think
a lot of men fear that they can enter and sustain traditional marriages only if
they know everyone else has to.
The authors sometimes mention HIV, but neglect to
discuss an attempt in Texas in 1983 to toughen the 21.06 law with a bill,
HR2138 (Bill Ceverha of Amarillo), advanced by the religious right, which would
have banned gays from many occupations, including teaching, police (the Dallas
Police Department used to “ask” back in the 1980s), medicine, and preparing
food. I (living in Dallas at the time) actually
got a letter back from Texas representative Debra Danburg, who wrote to me “ The
other side is sending out quite a bit of mail. It says things such as gay
people should not be allowed to work in hospitals or wherever food is served or
prepared. It is really frightening in its ignorance. It is important that
legislators other than myself have
some contact with gay people in their districts.” The bill died in a committee headed by Wayne Peveto, 7-2. The Dallas Gay Alliance (in those days headed by Bill Nelson and Terry Tebedo, who for a long time ran the Crossroads Market) fought hard to keep this bill from getting off the ground.
Dale Carpenter spoke at the Cato
Institute on March 16, 2012 (see my GLBT blog posting March 18 for review of
the Lambda Legal short film “Overridden”.
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