Little wonder proponents of gay marriage are nearly as worried about how and when the issue will arrive at the U.S. Supreme Court as about what the eventual decision will be. Current high-court jinks over "Obamacare," shocking and disturbing as they may be, pale before the story of the Court's 2003 overruling of the nation's sodomy laws as told in Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas (Norton).
This "story behind the story" �" much of which the justices deciding the case did not know, and to this day has been obscured by deep layers of myth �" is as flabbergasting, nail-biting, page-turning, and all-around good as tales get. Once past the seeming bump in the first paragraph of the first chapter �" when Carpenter, a law professor at the University of Minnesota, refers to the principals in Lawrence v. Texas as the "codefendants" rather than the petitioners in the case �" there's no doubt we're in the hands of a writer who's as masterful a storyteller as he is a legal scholar.
As Carpenter reveals, John Lawrence and Tyrone Garner, who were arrested for having sex (the two of the four cops on the scene who "witnessed" the sex did not agree on whether it was anal or oral) in Lawrence's apartment on September 17, 1998, not only were not having sex, but also probably were not then or at any other time sexual partners. Nor were they obvious candidates to become the petitioners in a case legal-rights activists had been avid to bring ever since Bowers. v. Hardwick upheld state sodomy laws a dozen years earlier.
At the time, Lawrence, who didn't know how to answer the question if he was a homosexual when he enlisted in the Navy because he didn't know what "homosexual" meant, had a history of DUIs that included a murder-by-automobile conviction. Garner, said credibly by many to be "sweet," had a string of assault charges on his rap sheet, and barely supported himself as a dishwasher and housecleaner. Yet so totemic were these two otherwise undistinguished men �" both now dead and as far as can be imagined from being gay heroes �" to become that, in the actual arguments before the Supreme Court, their names were not spoken in oral argument.
It's the rare page of Flagrant Conduct that doesn't have a thigh-slapping revelation. Take, for example, the simple matter that their initial "case" would probably not even have been noticed had it not been for the fact that a closeted clerk for the local judge to whom it was assigned happened to notice the "sodomy" charge, so rarely was it actually brought. He told his equally closeted lover, a sergeant in the county sheriff's office, about it, and that night, when the two made a routine stop at Pacific Street, a local gay bar, Sgt. Walker mentioned it to the bartender, Lane Lewis, a local gay-rights activist.
The rest, as Carpenter deftly shows, was history. Lest there be any doubt that Carpenter himself writes from the position of gay-rights advocate, here's a characteristic observation: "To any student of gay life and history, the fact that a critical moment in the case took place in a gay bar should not be surprising. Such venues had long been the site of much-needed socializing and information-sharing in an era of repression."
The book's 300 pages are an exhaustive examination of all the elements of the case, from the background of American (and especially Texan) legal repression of gay sex to the future implications of the case, not the least of them the gay marriage battle.
Carpenter brings to it all a novelist's gift for character and a dramatist's for scene. In the gripping chapter on the oral arguments at the Court, Paul Smith, the petitioners' counsel, is depicted as memorably as Gregory Peck in To Kill a Mockingbird. Texas DA Chuck Rosenthal leaves an equally indelible impression, as a creature from the out-takes of One Flew Over the Cuckoo's Nest . Then, the justices themselves demonstrate that real life trumps fiction every time.
Carpenter also has the grace to let the ironies inherent in this literally fabulous story surface without, so to speak, waving a flag over them. One of the richest moments in the book recalls the pregnant, disbelieving silence in the courtroom after Justice Antonin Scalia, questioning counsel about the issue of individual rights in a case about alleged anal sex, intoned, "Does that make flagpole-sitting a fundamental right?"
Fifty pages later comes the touching story about how, on the morning the Lawrence ruling was announced, San Francisco gay-rights leaders held a rally in Harvey Milk Plaza during which the rainbow flag was lowered and a huge U.S. flag raised in its place "as a way of proclaiming in effect, 'Finally, we're Americans.'" Jenny Pizer, a lawyer for Lambda Legal, which brought the case, "told the assembled throng, 'This is our Declaration of Independence. We now have the right to love and make love. We have the right to be fabulous.'"
Lawrence was one of the rare cases in which the Supreme Court reversed itself, overturning Bowers �" signaling that it could reverse itself yet again in a case about gay marriage. Because, as Carpenter frequently points out, Lawrence was not just about the ill-defined term sodomy, but rather about relationships, families (however defined), and lives, its import for the forthcoming ruling on gay marriage could not be clearer, or less certain.
To the extent that it's true that we who do not know our history are condemned to repeat it, Flagrant Conduct is essential reading. Good of Carpenter to make the task an unalloyed pleasure.