Flagrant Conduct: The Story of Lawrence v. Texas.

AuthorSpindelman, Marc
PositionBook review

FLAGRANT CONDUCT: THE STORY OF LAWRENCE V. TEXAS. By Dale Carpenter. New York and London: W.W. Norton & Co. 2012. Pp. xv, 284. $29.95.

Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understanding of Lawrence v. Texas as a great civil rights victory for lesbian and gay rights, this Review offers an alternative perspective on the case. Built from facts about the background of the case that the book supplies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for equality along the often-intersecting lines of gender, class, and race. Lawrence emerges in this light not as a singular victory for lesbian and gay civil rights, or perhaps even for civil rights more generally, but as a complexly mixed opinion about and for equality in society and under law.

I'm not a hero. But I feel like we're done something good for a lot of people. I feel kind of proud of that.

--Tyrone Garner (p. 277)

We still have a lot of work to do as far as getting equal treatment and jobs and housing and employment.

--Tyrone Garner (p. 277)

[Flew remember Garner or invoke his name.

--Dale Carpenter (p. 277)

  1. LAWRENCE V. TEXAS AND THE POLITICS OF CIVIL RIGHTS

    The early returns on Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas (1) have persistently been in the mode of high praise. (2) It is easy to see why. This history of Lawrence v. Texas--culturally and legally, one of the most discussed U.S. Supreme Court decisions of the last decade, and for lesbian and gay equality the most significant constitutional breakthrough to date (3)--brings many of the people and events behind the decision, hence the decision itself, to life in a thoroughly engaging and informative way. The book's deeply human-centered approach, in which Lawrence, as a legal, political, and cultural event, is revealed as the product of a vast and complex set of human actions and interactions over extended time and space, humanizes Lawrence by naming many of the figures who made it possible along the way. In the process, the book also humanizes the legal process itself, showing that it is populated by individuals--not nameless, faceless bureaucrats--who can be recognized, identified with, and, in many cases, thanked. By returning the legal system to the public this way, the book reveals the democratic and egalitarian spirit animating it, a spirit that is felt in its narrative progression--Lawrence v. Texas as progress and justice achieved--as well as in its crystal-clear, at times beautiful, prose.

    As it happens, the same democratic and egalitarian spirit that animates the book also animates its unabashedly pro-lesbian-and-gay-equality stance, a stance within which the book achieves what many readers will regard as a notable degree of fairness and balance. Carpenter has his views, of course, and his own pro-gay political blend. But despite his associations with libertarianism and Log Cabin Republicanism, and his conservative advocacy for marriage equality, the book does not read like it is pushing a conservative political brand. Yes, at moments--some subtle, some not--the book evinces sympathies for conservatisms that might track Carpenter's views. But in one of the book's many surprises, it offers grist for a more radically progressive outlook and perspective on Lawrence than any true conservative, pro-gay manifesto ordinarily would choose. Through this telling, the book thus surpasses its title's claim. "The Story of Lawrence v. Texas" actually packs plurals--stories--with facets and dimensions that exceed a single plotline linked to a single-minded political game.

    On its own terms, the book's account of Lawrence is filled with heroes of different sizes and shapes, more, certainly, than one would have guessed based only on the judicial reports. Appropriately, the narrative repeatedly swirls around John Geddes Lawrence and Tyrone Garner, (4) "two humble men" but major "civil rights heroes" for delivering their sodomy arrests as the vehicle for challenging Texas's and twelve other states' sodomy bans. (5) But there are numerous other figures, many unknown publicly before now, whose actions, seemingly inconsequential when undertaken, turn out to be historically significant; they themselves, heroes in retrospect. Who knew before this telling, for instance, that Lawrence v. Texas might not have happened but for a "'gossipy' conversation" (p. 1 18) one night at a Houston gay bar where Nathan Broussard, a file clerk in the state court where Lawrence's and Garner's cases were initially filed, and his partner, Mark Walker, a Harris County Sheriff's Office sergeant, mentioned the arrests to their bartender, Lane Lewis? Lewis, who "was active in the gay civil rights movement," "knew that gay activists in Texas had been waiting for years to get a sodomy case based on an arrest of two adults in the privacy of the bedroom." (6) He instantly recognized the potential for the arrests. "At that moment ... Lawrence v. Texas was set on a legal trajectory no one there could have anticipated" (p. 118).

    With all the heroes populating this book, the appearance of a fair share of villains is expected, for narrative symmetry at least. The book does not disappoint on this score. Some dark figures do appear. William Blackstone, J. Edgar Hoover, and Paul Cameron, along with other Christian moralists, including Anita Bryant-types, and Texas Republicans who, at times, do their bidding, all spring to mind, as do the authors of some frothily antigay amicus briefs filed in Lawrence with the Supreme Court. But by the time this work is out, history's die is cast. Lawrence, decided in pro-lesbian-and-gay directions, keeps supporters of sodomy laws from being true villains any more, having lost the power they once possessed to hold homosexuality's legal fate entirely in their hands. Even Justice Antonin Scalia, who some will see as one of the work's major antiheroes, roaring in his rejection of the liberty and equality claims in Lawrence, roars in impotence--a diminished status that is gently but unmistakably announced by Paul Smith, Lawrence and Garner's lawyer before the Court, when Scalia puts him on the spot during oral arguments (pp. 223-24).

    Among the various characters in Carpenter's book, one figure heroically stands out above them all: Lawrence v. Texas itself. Famously, Lawrence announces a right to sexual intimacy that lesbians and gay men, like their heterosexual counterparts, are free to enjoy, a right that leads the Supreme Court to declare that criminal prohibitions on sodomy between consenting adults constitutionally fall. An unequivocal triumph in these pages, Lawrence's stature is felt throughout. In the work's bleakest moments, the gloomiest days of lesbian and gay rights--when they had not been conceived or did not exist as such, or when some initial successes, like a Houston city ordinance banning antigay discrimination (pp. 28-36), come under siege--Lawrence stands as a lighthouse in the distance, beaconing brightly. Lawrence itself is the book's very happy ending, whether pro-lesbian-and-gay sequels follow in the Supreme Court, as seems likely, or not. (7) Like other judicial decisions, Lawrence may flatten out the lived facts behind it, but when its details and dimensions are filled back in, it is a major and majorly felicitous event. It is just what Carpenter's book's subtitle touts: the opinion heralding freedom that "decriminalized gay Americans."

    The centrality of Lawrence's heroism to the structure of Carpenter's book helps explain why commentary has regularly zeroed in on two revelations that the work serves up. (8) Individually and together, they suggest that Lawrence's flattened-out facts may be flat out wrong in important respects. One piece of news--confirming suspicions that some commentators previously held--is that Lawrence's representation of Lawrence and Garner as a couple in a marriage-like relationship is false. Not lovers, friends with benefits, or simply sexual regulars, "Lawrence and Garner never became much more than acquaintances. They were never in a romantic or sexual relationship with each other, either before or after the sodomy arrests." (9) More spectacular is the "probabilistic" conclusion that not only were Lawrence and Garner not in an intimate or sexual relationship, but they were also probably not even having the sex that they were arrested and convicted for (pp. xii-xiii). A careful and important subplot develops the basis for this startling conclusion, which as an educated surmise, never achieves the status of hard fact. Close to it, the conclusion is well substantiated, including by Lawrence himself, who repeatedly insists that "'[t]here was no sex,'" and that the police who swore otherwise swore to "'bald-face lies'" (p. 71). Corroborating, Garner at one point presents a version of events "obviously inconsistent with the claim that the men were having sex when the police arrived" (p. 72), elsewhere laughing aloud on hearing that the lead officer at the arrest said that he and Lawrence "continued to have sex after [officers] entered the bedroom" (p. 73).

    The idea that there was no intimacy or even just sex behind the case that finally gave the United States a constitutional right to sexual intimacy has stirred up a brouhaha in some legal quarters, (10) Is something amiss about burying facts like these in a high-profile case like this? (11) What effects, if any, might these revelations have? Will they reinforce stereotypes about homosexual mendacity? Will they harm the success of future lesbian-and-gay-rights litigation?

    Answers aside, the real news of Lawrence in this work is what it has been all along: the decision's announcement of a...

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