Monday, April 02, 2012
Dale Carpenter documents "Lawrence v. Texas" in "Flagrant Conduct", the case that brought down sodomy laws
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.
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”.