A Bit More Detail

Assorted Personal Notations, Essays, and Other Jottings

[FORUM] What laws symbolizing inequality have you encountered in your lives?

The central question of this forum post was inspired by Scott Lemieux’s post at Lawyers, Guns and Money, “Flagrant Conduct and the Right to Privacy”. The post relates to American lawyer and legal commentator Dale Carpenter‘s new book Flagrant Conduct, which deals with the 2003 US Supreme court decision in Lawrence v. Texas which struck down sodomy laws across the United States for their unconstitutional violation of privacy. Lemieux echoes Carpenter’s point that the sodomy laws that were being enforced against Lawrence and Garner were unfair not only because these laws discriminated against them because of their sexual orientation, but because the particular locations of Lawrence and Garner in American society–their social class, their economic standing, their geographical location, their inferior standing relative to the police–made their defense against those laws all the more difficult.

The core argument of the book is reflected in the double meaning of the title. “Flagrant conduct” is what John Lawrence and Tyron Garner were accused of. But, argues Carpenter, it was various officials representing the state of Texas who were guilty of “flagrant conduct.” This starts with the police officers who allegedly found Lawrence and Garner in flagrante delicto, and extends to the legislators who refused to repeal a discriminatory and arbitrarily enforced statute, the Harris County prosecutors who went ahead with a selective prosecution based on an incredible story and ineptly defended it in court, and the elected state judges who probably “capitulated to political pressure” and upheld the law ultimately overruled by a conservative Supreme Court.

The real flagrant conduct in the case began with the decision by police to march Lawrence and Garner out of the former’s home in handcuffs. The decision to arrest Lawrence and Garner under Texas’s rarely-enforced sodomy law was based on illegitimate motives. The arresting officers, Carpenter shows, “misuse[d] their authority” because they were challenged by an individual “whose very existence disgusted them.” Joseph Quinn, the lead officer who decided to charge Lawrence and Garner, was prejudiced against gay men, and was also outraged by the perceived unwillingness of Lawrence to respect his authority after four police officers invaded his apartment based on a false report.

As Dahlia Lithwick noted in her review of Flagrant Conduct in The New Yorker, Carpenter’s most important finding is that the arrest of Lawrence and Garner went beyond merely selective enforcement and was probably based on charges that were entirely fabricated. It is impossible to prove to an absolute certainty what the officers saw, and the two officers who allegedly witness Lawrence and Garner having sex — the only two living people who know what happened that fateful night — have not recanted their initial claims. But Carpenter establishes that, at a minimum, the story in Quinn’s official report is implausible in the extreme. Among other problems, it requires us to believe that two men who were inebriated and not professionals in the adult entertainment industry would continue to have penetrative sex for several minutes after police officers had loudly and repeatedly announced their presence in a quiet apartment, including for a full minute in the full view of several police officers brandishing weapons. Adding to the lack of credibility of the official police story is the fact that the two officers who claim to have witnessed the sexual activity could not even agree which specific sexual act they witnessed. Ironically, the two men whose arrest lead to “sodomy” laws being ruled unconstitutional probably never had sex with each other, and certainly were never in an ongoing sexual relationship. Lawrence flatly denied that he and Garner had ever had sexual relations, and some of the statements Lawrence and Garner made while being monitored by litigators who needed the official story to be preserved strongly imply that the charges against them were simply false.

Whether or not Lawrence and Garner were engaged in any kind of sexual activity when the police entered their apartment, their arrest was certainly unusual. Informally, the state of Texas never enforced its ban on same-sex “sodomy” against consenting adults acting in the privacy of their own homes. But this doesn’t mean that the laws were legally inconsequential. First of all, having seldom enforced laws on the books invites arbitrary enforcement that raises inevitable equal protection and due process problems. And second, even when not enforced bans on sodomy had far-reaching legal consequences that were not merely symbolic. Bans on sodomy were not just targeted at conduct. As Carpenter paraphrases Paul Smith’s eloquent oral argument at the Supreme Court, the Texas law “was a classification of people” rather than being simply a “classification of conduct.” Even in states where bans on sodomy theoretically applied to opposite-sex couples as well, the existence of these laws were cited by state courts as justifications for denying gays and lesbians the ability to adopt children, denying them custody of their own children, justifying the decisions of employers to fire them based solely on their sexual orientation, and a variety of other legal disabilities.

Flagrant Conduct also demonstrates the importance of class in the arrest of Lawrence and Garner. Neither of the defendants were well-educated or affluent, and they were arrested in an economically marginal, majority-minority neighborhood outside of Houston. (Garner was black, Lawrence white.) As Carpenter argues, this is not a coincidence. When laws are enforced in an egregiously selective manner, it is almost always poor people and/or racial minorities who bear the brunt of this inequality. I would add that the importance of class makes arguments that bans on sodomy should be upheld as a matter of “judicial restraint” ring especially hollow. Laws that are selectively enforced against relatively powerless minorities are not only constitutionally problematic; they are especially difficult to repeal, as the people most affected have very little ability to influence the political process.

Lawrence and Garner’s successful challenge to the laws is remarkable in this context. This success, granted, occurred in the context of an energetic global gay rights movement that did have the infrastructure–lawyers, funding, media, mass support–necessary to support the challenge.

What sort of socially sanctioned discriminatory laws–laws perhaps redoubled in their effect on their victims because of their standing in society–have you encountered? Many of the people reading this post, I know, did experience these same American sodomy laws themselves. How did you overcome these laws, or at least their effects? Were ever you in a position to overcome them?

(Me, I’d like to think I myself enjoy the grace of late birth, but I’m more than willing to believe I’ve personally convenient lacunae in my memory.)


Written by Randy McDonald

March 25, 2012 at 1:58 am

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