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.

Lawrence sodomy case was sexless

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.

Appellant in Lawrence v. Texas Dies

John Lawrence (left) and Tyrone Garner (right)

John Lawrence, memorialized as the appellant in the landmark Lawrence v. Texas ruling which invalidated state anti-sodomy laws nationwide, died last month at the age of 68. His death came to light when his lawyers tried to reach him for an invitation to an event commemorating the Supreme Court decision. He died on November 20, according to his partner, of heart disease. The New York Times has a very informative obituary:

Mr. Lawrence attended the Supreme Court argument in his case, his lawyers recalled, mingling with the people who had waited in line all night to see it, alive with excitement, pride and a sense of history. “He was willing to be the real-life face of injustice,” Mr. Katine said.

Mr. Lawrence reflected on his case years later in an interview with Professor Carpenter. “Why should there be a law passed that only prosecutes certain people?” he asked. “Why build a law that only says, ‘Because you’re a gay man you can’t do this. But because you’re a heterosexual, you can do the same thing’?”

Tyrone Garner, who was also arrested at the same time as Lawrence, passed away in 2006.

More Bigotry From Texas Police

What is it about law enforcement in Texas?

Last Sunday night, Carlos Diaz de Leon and some friends stopped to have a bit to eat at Chico’s Tacos. Two of the guys kissed each other, which seemed to annoy the rent-a-cops.

“We went, sat down to eat our food and security guards came and said that if they kept doing that, they were going to throw us all out of the restaurant.”

Carlos said he then asked them why? Their response, according to Carlos: “They said ‘we didn’t allow that gay stuff to go on here.’ “

Carlos mistakenly thought that he and his friends have the right in Texas to be treated the same as straight people. So he called the police. But he didn’t get the response he expected. Rather than come to the support of Carlos and his friends, they were threatened with citation.

“Told us it was against the law for two males and two females to kiss in public, that they could cite us for homosexual activity.”

While there is a homosexual conduct ordinance in the state’s penal code, “We don’t enforce that law, there’s been court decisions about Texas’ law on that. We don’t enforce it and what happened there wouldn’t have even have met the elements of the offense, even if it had been enforceable,” said El Paso Police Department spokesman Chris Mears.

The police department admits the situation was not handled properly by a rookie police officer, but deny it was discrimination.

“Did he make a comment that he shouldn’t have made? Yeah, he did…but that comment I don’t think was discriminatory in nature, I think it was poor understanding of the law,” Mears said.

No, Mr. Mears, it isn’t just “poor understanding of the law.” If was official police harassment of a citizen of El Paso based on that citizen’s sexual orientation. It was discrimination. It was intimidation. It was bigotry.

In 2003 the Supreme Court of the United States told a state that its sodomy laws contrary to the US Constitution. And what state was that? It was Texas. It is simply not credible that there is a police force in the State of Texas that was not fully aware of Lawrence v. Texas and what it means.

Prior to the Court’s decision, it wasn’t as though the state was much in the habit of enforcing the law. They didn’t put folks in jail. That wasn’t its purpose.

The intent of the sodomy laws in Texas were to create a culture of intimidation, to leave gay persons under threat of being criminalized, to allow harassment without recourse, and to make it very clear that the State of Texas “didn’t allow that gay stuff to go on here.”

It seems to me like things haven’t changed much.

In light of the recent police brutality in a gay bar in Ft. Worth, it’s time to ask some questions.

• Why don’t the police in Texas know that they don’t have enforceable sodomy laws?
• Why does Texas still have sodomy laws on the books after they have been told by the Supreme Court that such laws are discriminatory and unconstitutional?
• Why doesn’t El Paso’s Police Department consider the blatantly bigoted response of the officer to be discrimination?
• Why would officers with the Texas Alcohol Beverage Control and with the Ft. Worth Police Department think it was “restrained” to bust heads, break ribs and thumbs, and harass 20 people selected arbitrarily and not associated with any obvious intoxication just because they were patrons of a gay bar?
• And why is it still perfectly legal for Chico’s Tacos in El Paso, Texas, to refuse service to Carlos and his friends based solely on their sexual orientation?

I believe the answers to these questions are all the same.

Today In History: Lawrence vs. Texas Begins Its Journey Through The Courts

Ten years ago today, on November 20, 1998, John Geddes Lawrence and Tyrone Garner pleaded no contest to charges of violating the Texas “Homosexual Conduct” law which banned “deviant sexual intercourse with another individual of the same sex.” They were convicted of the Class C misdemeanor by a Justice of the Peace in Houston, and were fined $250 with an additional $141.25 in court costs.

That conviction led to a series of appeals: the Texas Criminal Court (which rejected the defense’s request to dismiss the charges), a three-judge panel of the Texas 14th Court of Appeals (which ruled the law unconstitutional), and the full nine-judge panel of the 14th Court of Appeals (which reversed the three-judge panel).

The appeals then reached the Texas Court of Criminal Appeals, which serves as Texas’s Supreme Court for criminal cases. That court refused to hear the case, which left the lower court’s decision standing.

Lawrence vs. Texas was then appealed to the U.S. Supreme Court, which agreed to hear the case. On June 26, 2003, the U.S. Supreme Court, in a 6-3 ruling, struck down the Texas anti-sodomy law, along with similar laws in twelve other states.

At last report, John Lawrence still works as a medical technologist in Houston. Tyrone Garner died in 2006 of meningitis.

Lawrence vs. Texas Revisited

Driver error led me to prematurely celebrate the five year anniversary of the Supreme Court ruling which struck down anti-sodomy laws across the nation. Dr. Gregory Herek apparently is in better control of his blogging software than I am of mine.

Dr. Herek is a prolific researcher and professor of psychology at U.C. Davis. Today he posted excerpts from a longer article he wrote to commemorate the ruling. In it, he explores the role that social science played in that ruling and what it tells us today in our current debates over same-sex marriage. He concludes:

Because current debates about law and policy concerning sexual orientation inevitably raise questions about the nature of intimate relationships, parenting, family dynamics, and the personal impact of sexual stigma — phenomena that have been extensively studied by behavioral and social scientists — psychologists and other behavioral scientists have an ongoing role to play in communicating our knowledge to policy makers, jurists, and the public.

By doing so, we will continue to fulfill our longstanding commitment to take the lead in removing the stigma historically attached to homosexuality and same-sex intimate relationships.

Like everything else Dr. Herek writes, this is well worth reading and bookmarking.

This Week In History: Lawrence vs. Texas

It’s been only five years since the United States Supreme Court struck down anti-sodomy laws with its 6-3 ruling in Lawrence vs. Texas. Writing for the majority, Anthony Kennedy said, “the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections.” Sandra Day O’Connor wrote a separate concurring opinion, but she based her arguments on equal protection instead of due process. Dissenting were Antonin Scalia, Chief Justice William H. Rehnquist, and Clarence Thomas.

Update: The actual date when the decision was released was June 26, 2003. When I wrote this, I meant to post date it so it wouldn’t show up until Thursday, which is the actual anniversary. I typically write these history things several days in advance. But given that this is a Monday and all, well … TA-DAH!

The Problem with Moralizing

I think what — what I’m saying is — and I had not gotten into the equal protection argument, Texas has the right to set moral standards and can set bright line moral standards for its people. And in the setting of those moral standards, I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist.

On March 26, 2003, Charles A. Rosenthal was riding high. As district attorney for Harris County, Texas, he was enjoying the rare distinction of arguing before the Supreme Court of the United States in Lawrence v. Texas, what would become a landmark case declaring sodomy laws to be unconstitutional.

But little did Rosenthal realize that the seeds of his destruction were already growing. Not only would he lose his argument, but he would lose his job and his reputation.

In January 2002, the sheriff’s deputies performed a drug raid in southeast Houston. Sean Ibarra, a neighbor, took photographs.

The deputies came to the home of the Ibarras demanding the film. Eric Ibarra videotaped the confrontation between his brother and the sheriffs. Then the Ibarra brothers were both arrested on charges of resisting arrest.

The brothers were tried and exonerated later that year. But the Ibarras believed that their civil rights were violated and brought the matter to the district attorney, Rosenthal. When Rosenthal did not respond to their satisfaction, in 2004 they sued the Sheriff and District Attorney Rosenthal.

As part of their discovery proceedings, the Ibarras subpoenaed the district attorney’s email. What they found was not particularly relevant to their case… but it was very relevant to Rosenthal’s career. It seems Rosenthal used his office email to send love notes to his secretary and to disseminate racist jokes and pornography.

But the thing that took Rosenthal down was not his adulterous affair. Nor was it his racism.

Rosenthal scorned the judge’s orders and did not turn over all of his email. Instead, he deleted over 2,500 email just days after being ordered to remit it. This got him in a heap of trouble.

Several things could happen now. After the hearing, Judge Hoyt could accept the DA’s answers and simply move on. Or he could find Rosenthal in contempt.

“The question of contempt, civil, or criminal could lead to other things,” said Treece. “(It) could lead to obstruction of justice, which is a significant federal problem. Or even perjury.”

And so Rosenthal has resigned and may find himself sitting in jail.

You see, Rosenthal forgot that those who like to moralize about others too often think that they are better than those whom they distain. They are so fond of pointing out the mote in others’ eyes that they ignore the beam in their own. And that beam can blind them to the danger that is coming.