Flagrant Conduct, by Dale Carpenter

Flagrant Conduct

Flagrant Conduct is an account of the famous Lawrence v. Texas case, the case that went all the way to the Supreme Court and overturned the 1986 Bowers v. Hardwick Supreme Court decision that had upheld state sodomy laws.

While not a particularly long book (the body, including the endnotes, is a little over 300 pages), it feels like Carpenter does a quite thorough job, giving us the complete history of the case, the legal and social context of it all, and the relevant biographical details of the major players. It appears almost all the people most important to the case were willing to sit for interviews (though the defendants themselves were heavily coached and said a lot less than they probably could have and would have if their legal team hadn’t been so controlling of them), so we get many different perspectives.

On an evening in 1998, three gay men—John Lawrence, Tyron Garner, and Robert Eubanks—were at Lawrence’s apartment. (There was likely a fourth man present, though there’s some ambiguity about that.) They’d known each other for many years. Garner and Eubanks had been lovers off and on since 1990, with their relationship having been a tumultuous one.

Eubanks left the apartment to get a can of pop from a vending machine. He was drunk and upset because he thought Lawrence had been flirting with Garner. In an impulsive act of retaliation, he called the police from a pay phone to report that there was a crazy man in that apartment threatening people with a gun.

The police responded, burst into the apartment, and of course discovered no gun. They did, however, arrest Lawrence and Garner for having homosexual sex.

There are a lot of interesting things about this case. For one thing, if you’re looking for squeaky clean, photogenic, sympathetic defendants for a test case, this lot did not fit the bill.

Whatever anti-gay prejudices they could expect to run into from judges, juries, and Supreme Court justices (if they succeeded in getting that far), there was plenty about these defendants that could encourage additional bias.

There was a racial angle to it, since Lawrence (and Eubanks) was white, and Garner was black. There was also a substantial age difference, with Lawrence being 55 and Garner 31.

Beyond that, they were working class or lower class, had criminal records, and were emotionally unstable (especially Eubanks, who had phoned in the false report to the police).

One way the defense team dealt with this was by gagging the defendants throughout the whole process. They didn’t speak in court; they weren’t made available to the press.

Also made clear in the book is the fact that it was really difficult to put together a test case to challenge Bowers, especially if you wanted it to be a case about what people do in the privacy of their own home, rather than conduct in the open that raises issues of public indecency.

The fact is, even after Bowers affirmed them, state sodomy laws were virtually never enforced as regards conduct in private, even in a state like Texas. Even if for some odd reason the cops were in someone’s home and the people there engaged in homosexual sex in view of them, they would typically either ignore it, or they would harass them short of actually prosecuting them. So they might arrest them so their names could be in the newspaper to embarrass them, or they might take them to jail for the night and then the prosecutor would decline to pursue the case and they’d be released.

That’s not to say, by the way, that such laws were insignificant since they were rarely enforced. Even that level of harassment is important. Plus, there’s the symbolic factor. By leaving the laws on the books, states were sending the message that homosexuals are inferior, that they don’t have the right to engage in the same kinds of relationships as heterosexuals do. As a homosexual, you might not get caught, and you might not be punished if you were caught, but in the eyes of the law you were a criminal.

In this instance, though, the lead cop was homophobic, plus he didn’t much care for the fact that they had been called out on false pretenses, nor that the defendants were angry and defiant toward him. He wanted some revenge.

The defendants pleaded no contest to make sure they lost while not admitting guilt. (Had they won, the case would have been over, and so it would not have been possible for it to work its way up to the Supreme Court to challenge Bowers.) The judge let them off with a tiny fine. The problem was, that too could have ended the case right there, as a fine has to be above a certain amount for an appeal to be allowed, and this was below that amount. They had to go back to the judge and actually ask for a slightly more severe sentence, which they got.

But perhaps the most intriguing thing about the case is that in the author’s view—and he provides a lengthy discussion of the evidence to back this up—the “crime” never even happened.

Initially the defendants insisted they were innocent because they hadn’t been having sex, until the defense team told them to shut up because they had to be convicted for this to continue as a test case.

There were four cops on the scene. The lead cop claimed the defendants were having anal sex. Another cop vaguely remembered that they were maybe having oral sex. The other two didn’t allege the defendants were having sex at all.

The cop who was most insistent he’d observed the defendants having sex gave an utterly ludicrous account of what he’d seen, claiming that in the face of a bunch of cops unexpectedly bursting into the apartment with guns drawn, the defendants had continued having sex in full view for a comically incredible period of time, with the cops apparently just standing around letting it happen, until they allegedly had to physically pull them apart to make them stop.

Let’s put the chances of that at basically zero. Almost certainly what happened was the cop was pissed, and decided to act on his anger by falsely arresting these gay guys for sodomy.

I don’t know how much it mattered, since the Supreme Court was probably going to decide the case according to what it wanted to pronounce about gay rights regardless, but the prosecution side wasn’t exactly enthusiastic and competent about contesting this case. At various times, at various levels, prosecution figures admitted they were reluctantly pursuing the case at all, and gave ineffective, amateurish presentations in court. (At one point in oral arguments before the Supreme Court, with the prosecution attorney floundering, Justice Breyer frustratingly pleaded for a “straight answer,” which sent titters through the assembled spectators.)

Almost certainly this case was based on a falsehood. The defendants and especially their legal team decided not to reveal that, since it gave them a convenient test case. And in the end they got the outcome they wanted, and the outcome that’s almost certainly the enlightened one. So I’m sure many would argue that the end justifies the means, that this is just the kind of fudging you routinely have to do in the legal system to get a just result.

Maybe, but I’m inclined to say it’s better to tell the truth and let the chips fall where they may. If that means this case doesn’t make it to the Supreme Court as the vehicle to overturn Bowers, so be it. There will be other cases.

All-in-all, Flagrant Conduct is a very well told story, interesting from start to finish, and well-argued as far as the points about which there is some controversy (most notably the matter of whether the defendants were even having sex). Solid recommendation for those interested in this subject matter.

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