The unknown past of Lawrence v. Texas.

• Author: Carpenter, Dale

TABLE OF CONTENTS I. INTRODUCTION II. THE SOMEWHAT KNOWN PAST OF LAWRENCE A. The Three Statutory Versions 1. The 1860 Statute 2. The 1943 Statute 3. The 1973 Statute B. Enforcement of the Texas Sodomy Law III. THE UNKNOWN PAST OF LAWRENCE A. Posing as Somdomites: John Lawrence and Tyron Garner B. The Arrest: The Deputies' Version 1. The Quinn Account 2. The Lilly Account 3. The Tipps Account C. The Arrest: Lewis' Version D. The Arrest: A Reasonable Doubt About the Deputies' Version 1. The Improbability of the Deputies' Accounts 2. The Evidence of a Motive to Fabricate 3. The Conflicting Account Offered by Lewis, Based on His Conversations with Lawrence 4. The Unwillingness of the Defendants, Their Representatives, and Lawyers to Discuss What the Defendants Were Doing or What the Police Likely Saw 5. The "Not Guilty" Pleas After the Arrests 6. The Hearsay Denial from Garner E. The Arrest: The Most Likely Scenario IV. THE ROAD TO LAWRENCE A. Lawrence at the Bar B. The Speech C. A Little Harder, Please V. LAWRENCE IN A NEW LIGHT A. Undermining the Foundation of Liberty: The Perversion of Laws and Law Enforcement B. The Complexities of (Gay) Life C. Lawrence in the Light of Gay History 1. The Role of the Closet 2. The Role of Coming Out 3. The Role of the Gay Bar 4. The Role of Class VI. CONCLUSION "You don't have any right to be here." (1)

"Why are we all down on our knees thanking them for giving us something they should never have taken away?" (2)

1. INTRODUCTION

   On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Garner having anal sex. This violated the Texas Homosexual Conduct law, (3) and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights.

   So goes the legend of Lawrence v. Texas. (4) Do not believe it. In every important respect it is terribly incomplete or very questionable. It flattens into two dimensions or simply erases a rich, complex, and tangled web of emotions, frustrations, motives, deceptions, jealousies, accidents, civil disobedience, serendipitous events, heroic acts, stirring pleas, and deep prejudices. It ignores the elements of race and class present in the case. It naively accepts the word of law enforcement authorities who harshly (and perhaps corruptly) enforced a purposeless law that was lying on the criminal statute books like an unused whip. It omits the role the closet played in bringing the arrest out of the closet. It ignores the bravery of a single clerk for a lowly judge. It forgets the bartender cum activist who had come out of his own closet, saw a moment, seized it, and helped make it history. It is a lie.

   This Article is the beginning of an attempt to correct the factual record. Based on my research, including interviews with most of the important participants (5) in the events of September 17, 1998, and its immediate aftermath, I come to a surprising, but still tentative and only probabilistic, conclusion: It is unlikely that sheriff's deputies actually witnessed Lawrence and Garner having sex. Assuming Lawrence and Garner were even having sex when sheriff's deputies entered Lawrence's apartment, it is likely they had stopped by the time the deputies saw the men. If this is what happened that night, the whole case is built on a foundational fabrication that makes it even more egregious as an abuse of liberty than the Supreme Court imagined. If I am right, and the "if" must still be emphasized, a sodomy law that was never really about sodomy was undone in a sodomy case that was not really about sodomy.

   This Article is also an attempt to fill in some of the gaps in the public's knowledge of the case. Much of the rich post-arrest history of the case has been ignored. But for the courage, insight, and initiative of three men in particular, the arrest might have been another forgotten episode in what I call the underhistory of the Texas sodomy law, the history not told in appellate opinions or in most other accounts. (6) The names of these three men do not grace the pages of the Lawrence decision or appear anywhere in the lower court decisions, and the names of two of them still cannot be made public, but they each made Lawrence possible. They should be remembered.

   Section II reviews what I call the "somewhat known" past, tracing the evolution of the Texas sodomy law from a statute so facially indeterminate that it dared not speak its name (7) to an enactment of exquisite specificity focusing only on homosexuals. I conclude that it is likely the Texas law had sporadically been enforced against private, adult, consensual activity. However, the stories of the people involved in this enforcement have been hushed up, victims of the shame the law itself both reflected and reinforced. The Lawrence and Garner arrests nearly came to the same fate.

   Section III begins to unearth the untold story of Lawrence, the story that cannot be found in the pages of the U.S. Reports or in newspaper and magazine accounts. This includes a description and analysis of what likely happened that partly cloudy September night in Houston more than six years ago. I want to emphasize that the conclusions I offer in this section are based on a necessarily incomplete examination of the principals involved. Most important of all, before any definitive conclusion could be reached, it is still necessary to hear the story of these events from Lawrence and Garner themselves. So far that has not been possible.

   Section IV reveals how the matter started the journey from an arrest to a Justice of the Peace to more exalted places. It tells the story of a real hero, Lane Lewis, and the two men brave enough to assist him--all three of whom have been lost in the understandable focus on the defendants and their attorneys.

   Section V places the story told in Sections III and IV in the larger framework of gay history and the treatment of gay people by the law. It explains the peculiar corrupting quality of laws that target a class of persons for moral opprobrium and the distance such laws place between the targeted class and any expectation of full citizenship under the rule of law. If Lawrence and Garner were arrested based on a fabrication by sheriff's deputies, their arrests partake in a long and sad history of a bad law corruptly enforced. But even the uncontested facts of the case--including the discretionary decisions to cite the men and to send them to jail--show how police power can be used capriciously and invidiously against the class targeted by the law based on nothing more than the offense taken by the officers at seeing pornography or having their authority challenged by a gay person. Section V also discusses several ways in which the background facts of Lawrence echo several aspects of gay life and history, including the role of bars, of the closet, and of coming out.

2. THE SOMEWHAT KNOWN PAST OF LAWRENCE

   Every law exists on two levels. One level concerns the words used by the legislature to express its will. The second level concerns the actual application of those words. As we shall see, when it comes to Texas sodomy proscriptions, there was a considerable gap between the first and second levels.

   1. The Three Statutory Versions

      Below I offer a brief history of the Texas sodomy law, in its various statutory iterations. (8) I do so for two reasons. First, though the law never distinguished between acts committed in broad daylight and acts committed in the home, it was almost never enforced against the latter. That is, it was almost never enforced against the most prevalent instances of sodomy. Thus, the law's concern was not with preventing sodomy. The law was intended to send a symbolic message of disdain about the people thought to commonly engage in sodomy. (9)

      Second, the history of the law's development establishes an important point: the Texas law, like other sodomy laws around the country, initially applied to certain acts, regardless of the sex of the people involved in the act. It was only through a process of specification (10) that it came to be aimed at certain people engaged in certain acts. The Texas law, like many such laws, instantiates a particular cultural view of homosexuals as hyper-sexualized and dangerous in some way. That view is perhaps best represented by the remarks allegedly made by one district attorney to a jury about a man charged with sodomy. The defendant, Shorty Darling, was said to be "a raving, vicious bull, running at large upon the highways, seeking whom he should devour; was dangerous, and should be penned up where he would have no more such opportunities to commit such abominable and detestable crimes." (11)

      As we shall see, the view of gays as dangerously hyper-sexualized may have crept into the arrest of Lawrence and Garner, leading sheriff's deputies to resolve their doubts and to use their discretion against the two men at every step of the way.

      1. The 1860 Statute

         The criminal code of the Republic of Texas, in force from 1836 to 1845 while Texas was an independent nation, contained no prohibition on sodomy, although common-law crimes were recognized. In its first fifteen years as a state, Texas had no statutory sodomy law.

         The state adopted its first sodomy law in 1860, using the common-law definition for the crime. It provided: "If any person shall commit with mankind or beast the abominable and detestable crime against nature ... he shall be punished by confinement in the penitentiary for not less than five nor more than fifteen years." (12) Commentators and courts of the era understood this language to prohibit anal sex between a man and a woman or between two men. It did not prohibit oral sex, and it did not prohibit any sex between women. (13) The...