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Posts for March, 2012

Heroes don’t need whitewashing

Timothy Kincaid

March 9th, 2012

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.

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.