The Unknown Past of Lawrence v. Texas

Authors

Dale Carpenter, University of Minnesota Law School

Abstract

On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Gamer having anal sex. This violated the Texas Homosexual Conduct law, and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights. So goes the legend of Lawrence v. Texas. Do not believe it. In every important respect it is terribly incomplete or very questionable. It flattens into two dimensions or simply erases a rich, complex, and tangled web of emotions, frustrations, motives, deceptions, jealousies, accidents, civil disobedience, serendipitous events, heroic acts, stirring pleas, and deep prejudices. It ignores the elements of race and class present in the case. It naively accepts the word of law enforcement authorities who harshly (and perhaps corruptly) enforced a purposeless law that was lying on the criminal statute books like an unused whip. It omits the role the closet played in bringing the arrest out of the closet. It ignores the bravery of a single clerk for a lowly judge. It forgets the bartender cum activist who had come out of his own closet, saw a moment, seized it, and helped make it history. It is a lie. This Article is the beginning of an attempt to correct the factual record. Based on my research, including interviews with most of the important participants in the events of September 17, 1998, and its immediate aftermath, I come to a surprising, but still tentative and only probabilistic, conclusion: It is unlikely that sheriff's deputies actually witnessed Lawrence and Garner having sex. Assuming Lawrence and Garner were even having sex when sheriff's deputies entered Lawrence's apartment, it is likely they had stopped by the time the deputies saw the men. If this is what happened that night, the whole case is built on a foundational fabrication that makes it even more egregious as an abuse of liberty than the Supreme Court imagined. If I am right, and the "if" must still. be emphasized, a sodomy law that was never really about sodomy was undone in a sodomy case that was not really about sodomy.

Recommended Citation

Dale Carpenter, The Unknown Past of Lawrence v. Texas, 102 Mich. L. Rev. 1464 (2004).
Available at: https://repository.law.umich.edu/mlr/vol102/iss7/2