This New Yorker article based on Dale Carpenter’s book on Lawrence v Texas is really interesting reading.
(Quick backstory for those who need their memories refreshed: In 1986, the Supreme Court upheld Georgia’s law criminalizing gay sex in Bowers v. Hardwick.
The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution confers “a fundamental right upon homosexuals to engage in sodomy.” Justice White’s opinion for the majority answered this question in the negative, stating that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” […]
A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an “almost obsessive focus on homosexual activity.” Justice Blackmun suggested that “[o]nly the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality'”
17 years later, in Lawrence v Texas, the Court overturned Bowers. Justice Kennedy wrote for the majority: “Bowers was not correct when it was decided, and it is not correct today. […] the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”)
The famous story behind Laurence v Texas is that cops looking for a gun instead found two men — John Lawrence and Tyron Garner — having sex in Lawrence’s bedroom, and arrested them. That story just isn’t true — Lawrence and Garner weren’t lovers and weren’t having sex.
That night in 1998, Lawrence, Garner, Eubanks, and probably a fourth man were all in Lawrence’s apartment. Lawrence and Eubanks were very drunk. Eubanks seems to have thought that Garner was being flirtatious with Lawrence, and fell into a jealous rage. He left the apartment, supposedly to get some soda, and called the police with a false story about his lover, Garner, brandishing a gun. There was never any dispute that the four policemen who responded to that call were entitled to enter the apartment to investigate, or that Lawrence began screaming furiously at the intruding officers, demanding to see a warrant and threatening to call his lawyer. There was sexually explicit art on the walls, notably a pencil drawing of a naked James Dean with oversized genitals. Eventually, Lawrence and Garner were charged with the crime of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” […]
The legal opportunity depended, however, upon persuading the defendants to go along with an unusual strategy. […] Lawrence and Garner understood that they were being asked to keep the dirty secret that there was no dirty secret.
For me, the fact that Lawrence and Garner hadn’t actually been having sex when they were arrested perfectly illustrates the real meaning of anti-sodomy laws. The cops didn’t really witness any sex going on, but they did recognize that the men were gay, and that was reason enough for the cops to arrest the men. This is sodomy laws at their most pure: It’s not about stopping sex, it’s about criminalizing existing while homosexual.
The New Yorker article points out that a great deal of the change in the 17 years between the Bowers and Lawrence decisions — both on the Court and in America generally — is that Americans, both on the Court and in general, are far more likely to know openly gay or lesbian Americans (or at least to have watched Will and Grace). It’s not a coincidence that Justice Blackmun’s passionate dissent to Bowers was, to a great extent, written by his law clerk Pam Karlan, who is openly lesbian (she’s now a law professor at Stanford).
National gay-rights advocates certainly got a boost of confidence when, on the day of oral argument [regarding Lawrence] at the Supreme Court, someone in the audience whispered to Smith that Justice Sandra Day O’Connor—one of two potentially “gettable” swing voters on the Court—had recently sent a baby gift to a former clerk and her same-sex partner. That’s how much sentiment at the Court had shifted. Justice Lewis Powell, Jr., the swing vote in the 1986 Bowers decision, was seventy-eight when the case reached the high court. Baffled, he told his clerk, “I don’t believe I’ve ever met a homosexual.” That clerk, as it turns out, was gay. But by the time that Lawrence arrived to challenge Bowers the Justices had openly gay clerks, and prominent lawyers who were gay were arguing major business cases at the Court. Insofar as this case could be packaged as a fight for the dignity and respect of a class of successful clerks, advocates, and lawyers now well known to the Justices, it was much easier for Kennedy to conclude, as he did, that “Bowers was not correct when it was decided, and it is not correct today.”
Anyway, the whole article is interesting and worth reading. Carpenter’s book sounds like it’ll be fascinating.
I would say that the Supreme Court was correct in overturning their precedent. It’s none of the State’s business what two people of either sex – or 3 or 4 or …. – do in their own bedroom as long as all such activities are voluntary and they don’t scare the horses.
It does kind of punch a hole in stare decisis, though, doesn’t it? I wonder what other cases we might see substituted for the first word in “Bowers was not correct when it was decided, and it is not correct today.”?
Plessy v. Ferguson?
I know what you’re getting at, Ron, and maybe one day we will read that sentence, but precedent has never been infallible or inviolable.
It does kind of punch a hole in stare decisis, though, doesn’t it?
No, it kind of doesn’t. Stare decisis doesn’t mean “we must never, ever overturn prior cases or admit they were wrong”.
The author makes much of the fact that no sex actually took place. Isn’t it even more remarkable — and a very important reason that sodomy laws should have been struck down — that the arresting officers imagined an act or LIED in order to arrest the two men?