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Understanding the Right's Fear of Sex: How America's Absurd Oral Sex and Sodomy Laws Were Overturned

After Lawrence v. Texas, the mere mention of “morality” was no longer enough to deny basic constitutional privacy rights.
 
 
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It might seem utterly absurd that oral sex was once illegal in the U.S.—as it was in every state before 1961. Until a landmark Supreme Court decision in 2003, though, it remained illegal in 13 states, along with anal sex (and in some, sex-toy use). Nine states banned it for everyone, and four restricted their laws to gays and lesbians. Though the laws were rarely enforced, they indelibly defined gay men and lesbians as criminals, and thus were used to justify discrimination. In 1991, Georgia Attorney General Michael Bowers cited the state’s sodomy law when rescinding a job offer to a recent law-school graduate after he found out she was a lesbian.

That Court decision, Lawrence v. Texas, still reverberates today. For the Christian right, it ranks with Roe v. Wade as the most odious Supreme Court ruling of all time. When right-wingers fume about “activist judges creating ‘rights’ not enumerated in the Constitution,” they usually mean privacy—specifically, sexual privacy.

To more rational souls, the decision’s logic is screamingly obvious. What could be a more unconstitutionally “unreasonable search” than cops battering into your bedroom to bust you for performing commonplace sex acts?

Yet the concept of a constitutional right to privacy has only become part of American jurisprudence in the last century, based on the idea that it is implicit in the "penumbra" of the Fourth Amendment. The Supreme Court extended privacy rights to sexuality in the 1965 Griswold v. Connecticut decision, which overturned a law prohibiting married couples from buying contraceptives, and to unmarried couples in 1972. Griswold was the precedent for legalizing abortion in 1973.

It ignored those precedents to uphold Georgia’s sodomy law in 1986. In Bowers v. Hardwick, it stated that there is no “constitutional right of homosexuals to engage in acts of sodomy,” and that “majority sentiments about the morality of homosexuality” outweighed any privacy rights for consenting adults. The Lawrence decision reversed that.

The People

Yet Supreme Court cases have human stories behind the abstract legal arguments. Anyone who knows basic American history will associate Plessy v. Ferguson with the doctrine of “separate but equal,” but not many know that Homer Plessy, the plaintiff in that case, was a light-skinned New Orleans Creole, a one-eighth-black “octoroon” who could have had serious questions about which car he was supposed to ride in after Louisiana segregated passenger trains. Or Thomas and Mildred Loving, a white man and a black woman forced to leave the state or face a year in jail for violating Virginia’s ban on interracial marriages, and whose 1967 challenge to that law produced the most appropriate case name in the Court’s history: Loving v. Virginia.

Flagrant Conduct: The Story of Lawrence v. Texas by Dale Carpenter (W. W. Norton & Company) is a fascinating, lucid and passionate history of the case—the defendants’ backgrounds, the improbable chain of events that brought the case to the Supreme Court, the legal arguments and strategies, and one highly surprising revelation.

John Lawrence and Tyron Garner, the two men whose arrest for sodomy in 1998 set off the case, made an odd pair. Lawrence was a 50ish white man who looked sort of like Lyndon Johnson; Garner was an attractive black man of about 30.

Neither was affiliated with the gay-rights movement. Lawrence was a hard-drinking medical technologist who lived in a working-class suburb of Houston. Garner was couch-surfing, occasionally living with his boyfriend, Robert Eubanks, an old friend of Lawrence’s well on his way to wearing out his welcome.

The official version of the case is that Eubanks, jealous that Garner was with Lawrence, called police with a phony black-man-with-a-gun complaint from a pay phone downstairs. Police barged into Lawrence’s apartment and caught the two having anal sex. They charged them with sodomy, a misdemeanor under Texas’ 1974 Homosexual Conduct law.

 
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