What if, in the end, Lawrence v. Texas was a whodidn’t?


Tyron Garner and John Geddes Lawrence

From The New Yorker:

In 2003, the United States Supreme Court decided the case of Lawrence v. Texas, ruling, by a six-to-three margin, that anti-sodomy laws were unconstitutional. Even those of us who followed the case had a rather gauzy notion of what had triggered the litigation. On the night of September 17, 1998, someone made a phone call to the police, warning that a black man was “going crazy with a gun” in an apartment just outside Houston. A clutch of sheriff’s deputies stormed the apartment, and found no gun, but they arrested John Geddes Lawrence and Tyron Garner for having sex in Lawrence’s bedroom. And, in an unlikely series of legal twists, the arrests of Lawrence and Garner became a vehicle for challenging old anti-sodomy laws that were used solely to shame and stigmatize gay couples. Lawrence and Garner were arrested for simply doing what loving couples do.

The story told in Lawrence v. Texas was a story of sexual privacy, personal dignity, intimate relationships, and shifting notions of family in America. By the time the tale poured from Justice Anthony Kennedy’s pen, in his decisive majority opinion, it was even about the physical dimension of love: “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.” The opinion used the word “relationship” eleven times.

That is the story that Dale Carpenter, a professor at the University of Minnesota Law School, seeks to untell in his important new book, “Flagrant Conduct” (Norton), a chronicle that peels the Lawrence case back through layers of carefully choreographed litigation and tactical appeals, back to the human protagonists we never really got to know, and back again through centuries of laws criminalizing “unnatural” sexual activity. What if, Carpenter asks, this weren’t a story about love, or even sex? What if, in the end, Lawrence v. Texas was less a whodunnit than a who didn’t? And, if there was no sex, let alone an intimate relationship, in John Lawrence’s apartment that night, how did the case come to be about both?

“Extreme Makeover”, Dahlia Lithwick, The New Yorker