So Do My Heroes

December 28, 2011 8:11 AM

The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. - Justice Anthony Kennedy

John Geddes Lawrence, the defendant in the landmark U.S. Supreme Court case that declared sodomy laws unconstitutional across the country, died on Nov. 20, according to an obituary posted by R.S. Farmer Funeral Home in Silsbee, Texas. He was 68.

In 1998, John Lawrence and Tyron Garner were arrested in Lawrence’s Houston home and jailed overnight after officers responding to a false report found the men having sex. The two men were convicted of violating Texas’s “Homosexual Conduct” law, which made it a crime for two people of the same sex to have oral or anal sex, even though those sex acts were legal in Texas for people to engage in with persons of a different sex. Lambda Legal quickly responded to represent Lawrence and Garner. Battling for years in the Texas courts, we sought to overturn the criminal convictions (which made the two men registerable “sex offenders” in several states) and to have Texas’s law declared unconstitutional. When the highest court in Texas eventually refused to even hear our arguments, we convinced the U.S. Supreme Court to take the case. In a stunning victory, the highest court in the land found the “Homosexual Conduct” law unconstitutional and established, for the first time, that lesbians and gay men share the same fundamental liberty right to private sexual intimacy with another adult that heterosexuals have.

posted by rtha (33 comments total)

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posted by kmz at 8:19 AM on December 28, 2011

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posted by Garm at 8:21 AM on December 28, 2011

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posted by entropicamericana at 8:23 AM on December 28, 2011 [6 favorites]

. for Lawrence, but ! for everything he did for sex rights in the USA.
posted by LMGM at 8:24 AM on December 28, 2011 [3 favorites]

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He was born in my hometown; I had no idea before today. Makes me feel a little proud for once to be a Beaumontian.
posted by kryptondog at 8:25 AM on December 28, 2011

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posted by dismas at 8:40 AM on December 28, 2011

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posted by Omon Ra at 8:46 AM on December 28, 2011

Tyron Garner died a few years ago as well.

For the curious, actually prosecuting people for a sodomy law absent some aggravating factor (nonconsensual, underage, took place in public, prostitution, etc) would have been at most very rare. I can't find a cite now, but ISTR that reports from the time at least hinted that the prosecutor only took the case forward to create standing to get the law struck down.
posted by ROU_Xenophobe at 8:46 AM on December 28, 2011 [3 favorites]

[all the links are, I think, fixed, please drop us a note if they are not working for you, thanks]
posted by jessamyn at 8:52 AM on December 28, 2011

A key player in one of the most important civil rights victories in recent history. RIP, Mr. Lawrence.
posted by Scientist at 8:59 AM on December 28, 2011

Thank you Lawerence, for making me fucking in Texas just a little bit easier, but also making fucking in general a little bit easier. You are a personal hero.
posted by PinkMoose at 9:00 AM on December 28, 2011 [2 favorites]

Plus this case will probably form the basis for national gay marriage when the Prop 8 case comes to the Supreme Court.
posted by Ironmouth at 9:02 AM on December 28, 2011 [9 favorites]

It's seldom spoken, but I always assumed the fact that one of the men was a 55 year old white guy and the other was a 31 year old black guy was a big part of why they were arrested. Houston's a reasonably gay friendly city (for Texas), and was then, and the arrest seemed odd to me. But a mixed race intergenerational couple may have just been too much for the asshole officer. (Here's a picture of the two men.)

Not sure the race and age issue matters since the Supreme Court case was very finely argued specifically on the point of privacy, but it seems an important part of the story to me. It also makes me doubly proud they chose to fight the case.
posted by Nelson at 9:04 AM on December 28, 2011 [3 favorites]

Plus this case will probably form the basis for national gay marriage when the Prop 8 case comes to the Supreme Court.

When is that, by the way? Is there something I can stick on my RSS feeds to keep track of progress?
posted by odinsdream at 9:09 AM on December 28, 2011

> For the curious, actually prosecuting people for a sodomy law absent some aggravating factor (nonconsensual, underage, took place in public, prostitution, etc) would have been at most very rare. I can't find a cite now, but ISTR that reports from the time at least hinted that the prosecutor only took the case forward to create standing to get the law struck down.

I was wondering about that also. Were the arresting officers aware that this was a move to get a judicial process going? Even in Texas, I find it strange that beat cops would care about dudes getting in on in 1998.
posted by Burhanistan at 9:18 AM on December 28, 2011

Thanks for cleaning up that one comment. Was a bit too much like another recent thread for my liking.
posted by RolandOfEld at 9:34 AM on December 28, 2011

Thank you to John Lawrence and Tyron Garner. What an incredibly hard and brave thing you did for all of us.
posted by ClaudiaCenter at 9:34 AM on December 28, 2011 [2 favorites]

The decision itself isn't that great a read, but I do love Scalia's dissent. It's all a pretty fun read. He spends the first third of the thing talking about Roe v Wade.

"This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad)."

Is probably the most applicable quote to today's battles, but there's a bunch of other good stuff too. Most of his argument in the last section would be dismissed out of hand today, not a decade later, as just downright offensive bigotry.

My personal favorite line is when he accuses the court of being "anti-anti-homosexual".
posted by Garm at 9:39 AM on December 28, 2011

Were the arresting officers aware that this was a move to get a judicial process going?

It wasn't a wholly arranged test case, so no. I imagine the arresting officers were just bigots who were offended by the sight. Their different races may well have played a factor too.

But, what happened the last time this went around (in Bowers v. Hardwick, which came out of Atlanta) was that the prosecutor refused to prosecute the case, because the sodomy law wasn't really for convicting people of sodomy anymore. It was something people could plead down to from more serious charges, or for people who were doing it in public, or an alternative prosecution for rape/assault where the victim's sexual history was irrelevant.* None of this, of course, excuses the inherent loathsomeness of the laws themselves.

The difference this time was that the DA (who seems to be a bad apple) actually prosecuted the case. It didn't go very far -- Lawrence's lawyers argued the law was unconstitutional, the judge disagreed, and then they entered a nolo plea.

*Apparently Hardwick was able to show standing by arguing that even if he wasn't prosecuted this time, his status as an openly gay man meant that he lived in the continual fear and danger of prosecution.
posted by ROU_Xenophobe at 9:45 AM on December 28, 2011 [1 favorite]

I am glad we finally have an FPP where people can use "fucking Texan" as a term of approval.

RIP, gentlemen.
posted by GenjiandProust at 9:45 AM on December 28, 2011 [2 favorites]

Before this ruling I lost track of the number of times I ran across the argument that equal rights for gay people shouldn't be recognized because homosexual sex was itself illegal. The mere existence of the law, regardless of whether or not anybody was prosecuted under it, served to impede social progress towards greater fairness and equality.
posted by LastOfHisKind at 10:06 AM on December 28, 2011 [8 favorites]

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RIP for a man who certainly helped things Get Better.
posted by rmd1023 at 10:07 AM on December 28, 2011

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posted by Jon_Evil at 10:10 AM on December 28, 2011

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posted by mykescipark at 10:14 AM on December 28, 2011

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posted by joe lisboa at 10:17 AM on December 28, 2011

I had no idea this was such recent history. RIP.
posted by TwoWordReview at 10:36 AM on December 28, 2011

Burhanistan: "I was wondering about that also. Were the arresting officers aware that this was a move to get a judicial process going? Even in Texas, I find it strange that beat cops would care about dudes getting in on in 1998."

Sometimes with impact litigation on big issues of constitutional law like this, if you want to challenge a law without a prosecuting having already occurred, in order to get standing to initiate the suit you have to find a couple of prospective plaintiffs that are willing to volunteer to be subjected to enforcement of the law. As ROU_Xenophobe notes above, sometimes that can be tricky if you're in a jurisdiction where a prosecutor isn't interested in pursuing enforcement of the law.

I recall being told a story when I was in law school of how Homer Plessy, the Plaintiff in Plessy v. Ferguson, had to ride around for awhile in a few "Whites Only" cars because it took awhile for him to be recognized and arrested. He was specifically chosen as the prospective plaintiff to tee up the litigation because he was so light complected that they thought that if he were the plaintiff, it would overcome some hurdles of racism on the Court.
posted by Dr. Zira at 11:03 AM on December 28, 2011

The NYT ran an obituary for Tyron Garner, the other man arrested, when he died in 2006. One thing they say is

Why the deputies enforced the sodomy law, a rarity, is unclear, wrote Mr. Carpenter [of the Michigan Law Review], who said he doubted that the officers actually saw any sex. He dismissed widespread speculation that the event was staged as a vehicle to test the law, saying that among other reasons, the men were too inarticulate for appearances in the news media.

Which is a bit harsh but seems correct from the things I've read about the people in the case.

Seems worth adding a shout out to Lambda Legal, the organization that funded the defense. I'd love to hear the story about how they decided this was the case to fight.
posted by Nelson at 11:28 AM on December 28, 2011

For the curious, actually prosecuting people for a sodomy law absent some aggravating factor (nonconsensual, underage, took place in public, prostitution, etc) would have been at most very rare.

Carpenter (Michigan Law Review, mentioned above) discusses this: "In the entire 143-year history of the Texas sodomy law, including its pre-21.06 versions, there are no publicly reported court decisions involving the enforcement of the law against consensual sex between adult persons in a private space." Later he says that there were some cases involving public spaces, sex with minors, and involving force.

Actually Carpenter's entire article is pretty interesting. It takes away any romantic notions about the defendents, but in a way that makes them more interesting. They were not involved in gay rights or activists in any way. Another, jealous lover made a false police report that caused the police to enter Lawrence's home. Garner was a Baptist. Both had criminal records (drunk driving, assault).

They were imperfect people like all of us, not model citizens with an unblemished past to make a perfect court case. And yet, they won.

Eleven years later, Houston elected our current mayor, a lesbian woman who first entered politics as a gay-rights activist and who lives with her partner and their three children. Progress is slow, but steady.
posted by Houstonian at 3:38 PM on December 28, 2011 [9 favorites]

Thanks for digging up Carpenter's article, Houstonian. Note that linked copy is only the first few pages of a 30,000 word article. Here's the JSTOR link to the full article; many libraries have JSTOR access. I was able to download a PDF by going through my login at the San Francisco public library.
posted by Nelson at 4:11 PM on December 28, 2011 [2 favorites]

Fellow Houstonian here. What I respected about JG Lawrence was his fight. This was not a staged kangaroo court type situation. This was real. He was arrested by a bigoted cop (Houston has many). I am friendly acquaintances with one of his attorneys. We have never gone into depth about the case, I'm sure he was sooo over talking about the details. The arrest was a travesty of justice, and it only made sense that the Supreme Court would recognize that. I have never heard that the DA was pro-gayrights and only prosecuted to get the ball rolling. I don't believe it. You don't know Texas. Even if Austin, Houston, Dallas, San Antonio are leftish/democrat leaning.

I had spoken with JG Lawrence at a fundraiser many years ago. This man was NOT a plant to get the ball rolling. In fact he represented "joe-6pack", not a crime, but certainly if there was some conspiracy to get a gay case to the Supreme Court he would NOT ever be considered your guy to get the slamdunk verdict.

I didn't know that Garner died. Hell, so many of my friends in Hou have died this year it's overwhelming.

You had a meaningful life, JG Lawrence, and you will always be a part of history. Thank you.

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posted by WilliamMD at 6:24 PM on December 28, 2011 [5 favorites]

I finished reading Carpenter's article about the history of the case. Compelling reading, nicely written and an interesting story. The author is highly opinionated in his article but also very thorough, with lots of interviews of involved people. Some bits I gleaned about the arrest:

• It's quite likely the officers never actually witnessed a homosexual sex act and fabricated that.
• The officers were initially in the apartment on a call of someone "going crazy.. armed with a gun". They went in with weapons drawn. In interviews the officers talked about how stupid it was someone almost got shot over a false police call.
• Lawrence was belligerent, refusing to put on clothes or even walk to the police car on his arrest.
• There's some reason to think some of the officers were anti-gay. No evidence of a direct racial angle, although Carpenter points out the mixed race scenario may have heightened a sense of outrage.
• There's no evidence to support the idea that the whole arrest was a setup to challenge the law.

Long story short, it's a murky story but it sounds like some cops were pissed off at being called into a lover's spat and decided to punish Lawrence and Garner by hauling them into jail. As Carpenter says, this sort of discretionary use of the law is precisely why unjust-but-seldom-enforced laws are such a bad thing for justice.

The hero of Carpenter's story is Lane Lewis, a gay activist. Lewis had put word out in the late 90s that he wanted to hear about any sodomy arrests. One of Lewis' customers at Pacific Street gave Lewis the arrest report. Lewis took it to local gay activists who selected Mitchell Katine to be the lawyer and and enlisted Lambda Legal's aid. According to Carpenter, they knew right from the start they had a potential Supreme Court case. (Amusingly they had to ask the judge to impose a larger fine so as to make the case qualify for appeal.)

Lawrence and Garner also deserve credit for their role. They could have paid a $100 fine and been done with it but instead fought it all the way through to the Supreme Court.
posted by Nelson at 4:03 PM on December 29, 2011 [2 favorites]

Oh, and if you want to read more, Carpenter has a book coming out in March: Flagrant Conduct: The Story of Lawrence v. Texas.
posted by Nelson at 4:08 PM on December 29, 2011 [1 favorite]