Author Interview: Dale Carpenter on 'Flagrant Conduct: The Story of Lawrence v. Texas'

Speaking at a book forum sponsored by the Cato Institute on March 16, 2012, Washington Post editorial writer (and former Supreme Court reporter) Charles Lane said the “true importance” of the 2003 high court decision in Lawrence v. Texas “is as a cultural milestone” and that it reflected how the country’s “zeitgeist had radically shifted since 1986,” the year of Bowers v. Hardwick, a decision that upheld Georgia’s sodomy law and which was overturned by Lawrence 17 years later.

Lane was responding to comments by University of Minnesota law professor Dale Carpenter, who was presenting his new book, Flagrant Conduct: The Story of Lawrence v. Texas. For his own part, Carpenter compared the Lawrence decision, in its effect on the lives of gay and lesbian Americans, to Brown v. Board of Education and its effect on African-Americans and race relations.

After his presentation, Carpenter talked to me about his book, what he learned in his research, and the larger impact of the Supreme Court’s decision now and in the future.

Carpenter, who teaches courses in constitutional law and sexual orientation and the law, began writing Flagrant Conduct more than eight years ago. Its first form was an article for the Michigan Law Review (which he describes as “a microcosm of this book”) that ended up in the hands of a senior editor at W.W. Norton and Company, who suggested he turn the article into a book and eventually published it.

Dale Carpenter

Writing the book required “quite a bit of legwork and research,” including dozens of interviews with people involved with the case, from the officers who arrested John Lawrence (whose name is in the case title) and Tyron Garner to law clerks and prosecuting attorneys, gay-rights activists in Texas, and, finally, Lawrence himself, who granted Carpenter his only interview about the case and its circumstances, just six months before he died.

Their meeting, Carpenter said, “was emotional.”

U.S. Navy veteran Lawrence, he explained, “never got a trial. He never got to talk about his side. He never got to tell his story and” talking to Carpenter “was his chance finally to tell his story when he knew he was in poor health and would not live long.”


No sex, please

The most startling finding from Carpenter’s research was that, contrary to the long-assumed facts of the case, Lawrence and Garner were not having sex when they were arrested on September 17, 1998 – a date, Carpenter pointed out, that Americans mark as Constitution Day.

Though they were not having sex, Carpenter said, “the police nevertheless arrested them and hauled them off to jail.”

That arrest set off a chain of events that eventually led to the Supreme Court’s historic decision, written by Justice Anthony Kennedy with a strong dissent by Justice Anton Scalia and another, extremely brief dissent by Justice Clarence Thomas, who pronounced the law “silly” and said if he were a legislator, he would vote to repeal it.

That Lawrence and Garner were not engaged in a sex act – and thus violating the Texas “Homosexual Conduct Law” – “was not widely known anywhere” and that information was first revealed by Carpenter in his 2004 Michigan Law Review article but, he noted modestly, “it is becoming more widely known now because of the book.”

The law that Lawrence was arrested under enabled police officials – in this particular case, the Harris County sheriff’s department – “to use their authority in an abusive and arbitrary way,” and, by overturning the Texas sodomy law and other, similar laws on the books in other states, the Supreme Court limited that form of police misconduct.

“The larger impact” of the Lawrence ruling, Carpenter explained, “ was getting rid of a precedent that wreaked havoc in the lives of gay men and lesbians in every area of life from family law to the military to relationship recognition, denying them their children, housing, employment, and everything else that we expect” as American citizens.

“The other legacy of this case,” he added, “may be yet to come in the form of more formal recognition of same-sex relationships and protection for families headed by same-sex couples. “

That, he concluded, “we’ll have to see.”

Adapted from an earlier article on Examiner.com.

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