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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 withRoe 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.

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.

Paul Murphy, the appeals-court judge who’d cast the deciding vote to overturn the law, had a different point of view. He told Carpenter that all anyone needed to know was that the state law that forbade “homosexual conduct” had legalized sex with animals.

Defending the law fell on the shoulders of Harris County district attorney Charles Rosenthal, whom Carpenter depicts as woefully unprepared. On the other hand, he had weak material to work with. He had to convince the Supreme Court that the law had a rational basis strong enough to justify violating privacy, and thus had to come up with more logical arguments than “butt-fucking is icky” and “God said it, I believe it, that settles it.” He also had to prove that it did not discriminate against gays and lesbians, even though it applied only to same-sex conduct.

In the oral arguments before the Court, Rosenthal tried to counter the privacy argument mainly by repeating the word “morality,” saying the state had the right to define and enforce it—much as the state also had the right to outlaw drug use in private. He argued that the law wasn’t discriminatory, because it also banned heterosexuals from doing it with someone of the same sex.

How can that make sense, a reporter from High Times asked at the impromptu press conference afterwards, when if someone can get sexually aroused enough to do it with someone of the same sex, they’re either gay or bisexual?

“What if they’re sexually aroused by 10-year-olds? Is that OK?” Rosenthal snapped back.

(A few years later, the DA would resign after revelations that he had used his office e-mail to carry on an affair with his secretary. An affair with his secretary had derailed the political career of Michael Bowers, the Georgia attorney general who argued the 1986 case.)

By a 6-3 vote, the Court held that the law was unconstitutional on the grounds that its invasion of personal privacy violated due process of law. “It is the promise of the Constitution that there is a realm of personal liberty which government may not enter,” Justice Anthony Kennedy wrote. Justice Sandra Day O’Connor wrote a concurring opinion focusing on the equal-protection claim, which the rest of the majority considered a secondary issue.

The decision, Carpenter says, would not have happened without the widespread cultural acceptance of gays and lesbians that had developed in the previous 17 years. The Bowers decision came a mere 17 years after Stonewall, and Justice Lewis Powell, who cast the deciding vote, did not know that one of his three law clerks was gay. By 2003, Carpenter notes, all the accredited law schools in the country had antidiscrimination policies (Regent and Liberty universities, the main Christian-right law schools, evade that by saying they don’t discriminate on the basis of sexual orientation, only against sexual “misconduct” or its advocacy), and most leading law firms had openly gay attorneys.

“It was remarkable how all the big-name law firms in town were on our side and nobody was on their side,” Paul Smith, the Washington lawyer who argued the case, told Carpenter. Justice Antonin Scalia’s dissent denounced the law profession for having “signed on to the so-called homosexual agenda.” (It also suggested that states had the right to outlaw masturbation.)

Though neither Lawrence nor Garner had been political, the bust outraged their sense of justice. “If it could happen to me, a poor little guy who worked forty hours a week and lived in his own home,” Lawrence told Carpenter in 2005, “this probably could have destroyed somebody’s life…. And I said no. No.” 

War on Sexuality Continues

The decision reverberates today, because the culture war over sexuality continues. There is little middle ground between those who see homosexuality as like being left-handed, a distinctive minority orientation but well within the diversity of normal humanity, and those who see it as a moral abomination. There is no possible compromise that could satisfy gays and lesbians’ need for justice and human rights while simultaneously enforcing the far right’s sexual jihads and assuaging the fears of homophobes, a frothing mix of squeamish panic about masculinity and paranoia about what Carpenter calls “the Protocols of the Elders of San Francisco.”

Lawrence v. Texas marked a turning point, that the mere mention of “morality” would no longer be enough to deny basic constitutional privacy rights. Yet political battles over sexuality continue to rage, over abortion, gay marriage, and even birth control.

In one way, Justice Scalia’s dissent proved prophetic. He wrote that the reasoning that held the sodomy law discriminatory would leave state laws limiting marriage to opposite-sex couples “on pretty shaky grounds.” Less than six months later, the Massachusetts Supreme Judicial Court cited Lawrence when it ruled that the state had “failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

Another way the decision reverberates today is more comic. Rick Santorum, then a senator from Pennsylvania, opined that if the Supreme Court struck down the sodomy law, it might next rule that “man on dog” sex was OK. That inspired the greatest prank in the history of the Internet: spreading “santorum” as a bit of eponymous slang akin to “boycott.”

 

Steven Wishnia is a New York-based journalist and musician. He is the author of "Exit 25 Utopia" and "The Cannabis Companion."His novel Very Bad When Drumming Stops will be published this fall by Manic D Press.
 
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