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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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That version is almost certainly untrue, Carpenter argues. Both Lawrence and Garner at first pleaded not guilty. Lawrence told his longtime partner, who was out of town, that they’d been arrested “for being gay.” After the decision, once he was allowed to talk by his lawyers, he insisted that he’d never done more with Garner than playfully flirt. The arresting officers’ reports differed dramatically: One said the two were engaged in anal sex and continued until he pried them apart, while the other said it was oral. Furthermore, Carpenter speculates, it’s rather implausible that the two decided to have a quickie while a drunken Eubanks went out to buy a soda.

What is far more likely, Carpenter posits, is that the arresting officers fabricated the charges because they were incensed that drunk queers, one of them black, were mouthing off to them. Joseph Quinn, the lead officer present, was known as a “zero tolerance” cop. He once arrested two mothers for waiting for their kids in a no-parking zone outside a school, and boasted that he had been the target of more civilian complaints than any other cop in the Houston suburbs.

That, writes Carpenter, illustrates just how bad the law was. Its corrupt and capricious enforcement forced gay citizens to live “in a parallel world where principles of honesty and impartiality in law enforcement thought to apply to everyone did not in fact apply to them.”

On the other hand, the arrest provided a perfect test case to challenge Bowers v. Hardwick. Gay-rights activists such as the Lambda Legal Defense Fund had wanted to overturn it, but could not file a legal challenge without a plaintiff who’d actually been charged. The few arrests usually came in public or semi-public places, such as that of a Kansas man convicted in 1995 of “soliciting sodomy” for saying yes to an undercover cop who propositioned him in a Topeka park.

An improbable series of events connected the arrested men with the gay-rights movement. The arrest papers piqued the attention of a closeted file clerk in the county courts, who mentioned them to his boyfriend, a closeted police sergeant—who was Quinn’s boss. When they went out for a drink that week, they talked about it with the bartender, a gay activist who then contacted Lawrence and Garner and put them in touch with lawyers.

The lawyers thus had to do a dance of pressure and evasion to move the case through the courts. Challenging the accusations would have “won the case but lost the cause,” so they had Lawrence and Garner plead no contest. They had to keep prosecutors from dropping the charges as picayune; at one point, they asked the judge to impose a higher fine so they would have the right to appeal.

Two factors helped. One was that the attorneys who handled most of the state’s side were a closeted lesbian and a moderate Republican, for whom prosecuting and defending the sodomy law was an unpleasant job obligation, not a crusade. The other was the Christian right’s domination of the Texas Republican Party. Texas judges are elected, and when a three-judge appeals panel held the law unconstitutional in 2000, the GOP exploded. “Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God,” its 2000 platform raged. Higher state courts upheld the law without hearing any arguments.

The Lambda lawyers decided to focus on two main arguments. First, that because the law applied only to same-sex acts, it violated the 14th Amendment’s equal-protection principle. Second, that because enforcing it required a gross invasion of privacy, the Court should reverse its decision in Bowers v. Hardwick.

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