Box Turtle Bulletin

Heroes don’t need whitewashing

When I read Extreme Makeover: The story behind the story of Lawrence v. Texas, Dahlia Lithwick’s review in the New Yorker of Dale Carpenter’s new book, Flagrant Conduct: The Story of Lawrence v. Texas, I was fascinated by the story. Some I knew already – that Lawrence and Garner were not a happily domesticated couple; some was new to me – that Robert Eubanks, the man who called in the false report, knew Lawrence and Garner; and some was shocking – that Eubanks and Garner were lovers. My only complaint was that I feared that Lithwick may not have left enough surprise.

My response was not universal.

It seems that Lithwick ruffled a few feathers by being a bit less deferential than some parties wished and used language that allowed some to infer criticism, whether or not intended.

Kevin Cathcart, executive director of Lambda Legal, wrote a huffy rebuttal in the Huffington Report. Well, not exactly a rebuttal; Cathcart doesn’t assert a single fact to dispute the story. Rather, Cathcart uses innuendo and implies that Carpenter (and thus Lithwick) is telling some distorted version of the tale.

In Dahlia Lithwick’s review in The New Yorker (March 12) of Dale Carpenter’s new book about the Lawrence case, Flagrant Conduct (Norton), she recounts Carpenter’s version of the events leading up to the arrest of the defendants, John Lawrence and Tyron Garner, in which Carpenter concludes that Garner and Lawrence were merely acquaintances who may not have been having sex when the police stormed into Lawrence’s apartment and arrested them. She accepts Carpenter’s conclusion, then writes, “That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex.”

I strongly disagree. That certainly was not the punch line for the hundreds of thousands of gay men and lesbians who were finally relieved of the harms and the daily fear caused by laws that criminalized their sexuality. [emphasis added]

That is a tacky tactic. Hint that Carpenter is telling a distorted version and “strongly disagree”… with something else.

Dale Carpenter did not just conjure his “version of the events” out of thin air. He did not rely solely on legal briefs or news coverage. Being familiar with Carpenter’s writing for some time, I know that he is thoughtful and nuanced and, while at times controversial, not inclined to statements that lack support. Carpenter spent nine years of research, interviewing the parties and weighing the disparities, and “his version” is more a presentation of all versions, including those that Cathcart seems would rather have unknown.

As for the specific point of contention, either it is true that “Garner and Lawrence were merely acquaintances” or it is true that they were something more. Either it is true that they “may not have been having sex” or it is definite that they were so engaged. And, it should be noted, the assertions are actually “John Lawrence’s version of events”.

If Mr. Cathcart has any evidence – any statement by any person at any time – which contradicts Carpenter’s narrative, he should say so. And surely, as the executive director at the time of the case, Cathcart would be privy to all such information. Even if bound by confidentiality and unable to disclose details, he could say that Carpenter is incorrect, not just imply so.

Cathcart’s indignant response – which neither contradicts nor clarifies – seems to be in reaction to inferred criticism about Lambda’s methods. Personally, to me they seem to be but good representation: control the story, keep your client from torpedoing his own boat, and fight for the real issue at hand rather than the specifics of the unique situation. But perhaps Cathcart sees Lambda as above the riffraff ambulance chaser.

I continue to hold Lambda Legal in high regard and Lithwick’s review only increased my admiration. I’m sad that Cathcart responded in a manner that lowered my esteem.

Also jumping to Lambda Legal’s defense is Ari Ezra Waldman, writing at Towelroad. Waldman see’s Lithwick’s review as “obscuring the undisputed good work done by Lambda Legal, the American Foundation for Equal Rights (AFER), and other legal organizations to win our rights through impact litigation.” I think Waldman sees criticism where I see admiration, but in his taking of Lithwick to task, I see a misunderstanding of what it all means.

It is natural to want our heroes to be heroic. Whether Lambda Legal or John Lawrence or Tyrone Garner, we want them bigger than life, beyond reproach, and unworthy of criticism, implied, inferred or vaguely hinted.

But here’s the funny thing about heroes: they seldom are.

Heroes do not live above the fray, marshaling their power and reaping the consequence of their advantage. Heroes fight impossible odds with no resources and in defense of honor and justice, not for some personal gain.

Sure, it’s admirable when someone steps forward and puts their life on display to serve a cause. It is worthy of praise when beautiful people seeking marriage equality kiss their babies to rounds of applause at a podium. And surely those people do good work – they provide an image that the public can agree deserves respect and equality. I do not mean to diminish that contribution or in any way criticize those who live a life of quality and responsibility.

But that’s not heroism.

When a drunk and a loser, someone who isn’t respected by anyone, agrees to put their life on display so as to fight injustice, I see the seeds of heroism. And when, with nothing else to contribute, John Lawrence let his name become equated with sodomy – and let us not pretend that this did not come without cost – I see classic heroism.

The little guys, the ones with no resources or social standing, stood up to the system and fought for their rights – even before the big city lawyers got involved. And they deserve that their story, warts and all, be told. And, in a grander sense, theirs is the story of why we have a constitution.

And despite Cathcart’s huffy indignation, when lawyers look at their clients, see their personal limitations, know the burden of selling them to nine elderly ivy-league people whose lives have never encountered anyone like these plaintiffs, and still push forward with whatever they can muster – be it a carefully crafted image and clients who promise silence – to advance my freedom, I see heroism.

As Linda Hirshman at Slate notes, civil rights cases are seldom about pretty people. They are about the law and the victims of the law.

The law is for the powerful and influential. But the Constitution and it’s protections are for losers. And drunks. And the unpopular. And deviates and perverts and faggots and c*cksuckers and sodomites like John Lawrence and Tyrone Garner. And for radical homosexual activists like Lambda Legal who have to scrap and fight and work with what they have.

It does no disservice to acknowledge and honor that fact.

More Reactions to Obama Administration’s Defense of DOMA

People are justifiably furious over the Obama administration’s DOJ brief filed with the Supreme Court defending DOMA. Here’s Pam Spaulding:

This is a President who said he is a “fierce advocate” for our rights. This doesn’t look much like an advocate, it looks more like an enemy pulling the pin on the grenade and tossing it at us. While this may not be the perfect test case for DOMA, the Obama administration, in its defense of the Act, has filed a brief that is a roadmap for every fundnut anti-gay argument against the right of same-sex couples to marry.

Andrew Sullivan:

There’s a completely decent reason to keep DOMA in place for the time being, especially in the federal courts right now – where bad precedents could wound us in the future. But to file an actual brief re-stating some of the worst and most denigrating arguments against gay civil equality is just bizarre. They could have argued for a narrow ruling or kept the “reasonable” arguments to a minimum. What they did – without any heads up to any of their gay supporters and allies – is unconscionable. Citing incest precedents? Calling gay couples free-loaders? Arguing that our civil rights are not impinged because we can marry someone of the opposite sex? Who on earth decided that that was a great idea?

…I’m baffled by this, I really am. The content of this brief is a massive political error from an administration that is making it impossible for its gay supporters to stay supportive. What’s next? A Clintonian political ad boasting of these arguments?

John Aravosis, when he’s not mad at others for not pushing the incest meme. Sorry, John. I love you and admire your work, but we disagree on that point. But not on this:

Today is the 42nd anniversary of Loving v. Virginia, the Supreme Court case overturning Virginia’s ban on inter-racial marriages. The Obama people, working for the product of an inter-racial marriage, sure have an eye for irony.

Chris Geidner at Law Dork:

Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn\’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn\’t add gratuitous demeaning statements into the legal brief she files.

Unlike the Obama Administration\’s brief filed in the Don\’t Ask, Don\’t Tell case turned away by the Supreme Court this week, last night\’s filing in Smelt v. United States goes too far.  It\’s offensive, it\’s dismissive, it\’s demeaning and — most importantly — it\’s unnecessary.  Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.

…Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:

DOMA does not discriminate against homosexuals in the provision of federal benefits.

Another lawyer, Dale Carpenter at the Volokh Conspiracy:

More bluntly put, the Obama DOJ is saying that DOMA doesn’t discriminate against gays and lesbians because they are free to marry people of the opposite sex. No “homosexual” is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There’s a nice boy across the street. It’s identical in form to the defense of Texas’s Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn’t discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it’s the official constitutional position of the Obama administration.

…My point here is not to claim that the DOJ’s arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there’s little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a “fierce advocate” for gay and lesbian Americans. When does that part start?

David Link at Independent Gay Forum:

It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money.  There are some respectable arguments in this motion, and this kind of disrespect is offensive.

Chris Crain:

The people in the Justice Department writing this brief made so many discredited and ridiculous arguments for DOMA, I hope these were really intended to help the court see the fallacy of DOMA to persuade the court to strike it down. Otherwise my only other conclusion is that the Obama White House has thrown us overboard.

Dan Savage:

Barack Obama’s record on gay rights so far: disturbing, unsound, false, discriminatory, damaging, nonsensical. Before today you could argue that the Obama administration was too busy with the economy and the war and health care to focus on making good on his campaign promises to gays and lesbians, that Obama simply didn’t have the time to take up our issues. But you can’t make that argument anymore. The Obama administration has the time to take up gay rights issues—but only, it seems, to do harm.

I can’t take my vote back. And I’m not sure I would if I could. But I sure as hell would like to have my money back.

And Andy Towle:

Happy Stonewall anniversary everybody!