Lawrence sodomy case was sexless

Timothy Kincaid

March 7th, 2012

What if John Lawrence and Tyrone Garner were innocent? What if the men arrested in Lawrence v. Texas, the case that found that gay couples had the right to intimate expression of their relationship were not in a relationship, not a couple, and had never intimately expressed anything to each other.

And that is what Dale Carpenter claims in Flagrant Conduct, his new book covered in a well written and informative New Yorker review (I’ve not yet read Carpenter’s book but anticipate that it will be fully enjoyed). The two men arrested for anal sodomy never had sex.

I expect that anti-gays will triumphantly declare this to be “an admission” that it was all contrived, a “hoax”. It wasn’t, but that’s beside the point.

I think it is appropriate that Texas’ sodomy laws were overturned in a case of non-sodomy. That wasn’t why they existed (and still exist) on the books.

Sodomy laws morphed with the times. When sodomy was a crime against nature by two men, it was a punishable crime. But when society came to recognize that it was not “two men”l in general but rather a distinct class of people, they took on a different role.

Now their purpose was placing and keeping gay people in an inferior social and legal position. They did not criminalize sex, they criminalized identity.

That is one reason it was so difficult to have them challenged. Arrests were extremely rare. The threat of arrest and the classification of a group of people as inherently criminal provides few victims in the eyes of the court.

In fact, Lawrence and Garner we’re not really arrested for sex, though some officers imagined that they saw sex occurring. But it was the setting – the erotic art, the clearly gay men – that gave these officers enough ‘proof’ of a crime. Their biases provided the rest.

So it is only fitting that sodomy laws, the legal prohibition on being gay, was decided on a case in which it was that status, rather than sex acts, was the cause of arrest.


March 7th, 2012

Yes, you’re likely right that the Right will claim that this invalidates the case and ruling somehow.

But the thing that always struck me was that Texas pretty much could have ended things at any point by simply dropping the charges, and still felt the need to continue doubling down.

It’s not only that Lawrence and Garner were arrested for, as you say, their identity – but that Texas based their whole case on exactly that idea, that Texas had the right to police private behavior among gay men, because, in their view, the government had a compelling reason to do so.

It really didn’t matter whether Lawrence and Garner were having sex – it’s deliciously ironic if they weren’t – because the whole point of the law was that Texas had the right to prevent the behavior by criminalizing it. Essentially, they were saying that they had the right to bust into your home just to make sure you weren’t doing the nasty. Well, turns out they were wrong.

Timothy Kincaid

March 7th, 2012

Lymis, if I recall correctly, the state did not want to prosecute.

It was necessary that they be found guilty in order for there to be a trial on the constitutionality of the law. It seems that had they been found innocent of the charge, then if was just an oopsie and the law did not impact them.

So as to keep the case alive, Lawrence and Garner plead guilty to the charge, and paid the fine, which then allowed them to challenge the law. They were then victims of an unconstitutional law.

Richard Rush

March 7th, 2012

I distinctly remember one way that sodomy laws were eagerly used for insidious purposes prior to the SCOTUS L.v.T. decision: When some companies with operations in multiple states began to offer benefits and protections to gay employees, anti-gay groups warned them that in a number of states those employees were, rightly, presumed criminals.

David Waite

March 7th, 2012

Timothy, had the DA (not the state) not wanted to prosecute he could have and would have dropped the charges, regardless of Lawrence and Garner’s wishes in the matter. At the time the local DA had the discretion to do this, he had no reason to suppose that the charged citizens and their lawyers actually wanted a prosecution.

He had an interracial gay anal sodomy case, arresting cops prepared to swear they “saw rem in re” opon arriving at the scene, and there was no way this side of hell that an elected Texas DA would have not wanted to prosecute, or politically could have risked not prosecuting them.

Lawrence and Garner didn’t “plead guilty” to the charges –which would have been technically perjurious, as well as grounds for reversal prior to the SCOTUS appearance– since long before SCOTUS, Texas knew they’d shot their own foot off with this case.*

The expensive lawyers who defended the two men and took it to the SCOTUS agreed to defend them on condition they plead No Contest, and Lawrence and Garner were with them in their goal to overturn. In the real world that is the same as a ‘guilty’ plea, but in law they are entirely separate animals.
*Texas and other states hated losing this law for the reason you brilliantly stated in your column. After the overturn, I told one of my older brothers that for the first time in my life I no longer felt like a criminal in my own country. I’ll be 70 Monday.

Timothy Kincaid

March 8th, 2012

David W,

Thank you for clarifying and correcting. I very much appreciate the depth and breadth of knowledge our readers have and the attention to detail that you all bring.

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