A tempest in a teapot has emerged in legal circles over the past week. Dale Carpenter, a libertarian/conservative, gay law professor at the University of Minnesota Law School, published his new book, Flagrant Conduct,* which details the story behind the seminal gay rights case Lawrence v. Texas. Lawrence is a case which I have many reservations about, but I have been waiting for a book like this since the Justices announced their decision in 2003, and I cannot wait to read it. I also have reservations about Carpenter, but I suppose it could only be he who wrote the book, primarily because he eviscerated the gay rights movement’s most cherished myth about the case–John Geddes Lawrence and Tyron Gardner, the interracial couple who were arrested for having sex in their home, were (1) not a couple, and (2) not having sex when they were arrested.
Carpenter’s book received surprisingly little attention on the gay blogs until a bombshell hit; Dahlia Lithwick of Slate wrote a very positive review of the book for The New Yorker where she discussed at length the truth behind Lawrence. Although Lithwick insinuated that the lawyers behind Lawrence were somewhat disingenuous about presenting the facts, she (and Carpenter too) was clear that there was nothing dishonest in the case made to the Supreme Court.
The first angry response came from Kevin Cathcart, the Executive Director of Lambda Legal, and a man deeply involved with the Lawrence strategy. His defense however, was very weak tea; it amounts to him claiming that the litigation team never misrepresented the facts–a completely different charge from the one Lithwick (and Carpenter) supposedly leveled at Lambda and Co. It’s not a fair (or good) rebuttal, and I am not alone in noticing that. Carpenter did his research, and Cathcart does not rebut anything factual.
Others have also jumped into the fray. Ari Ezra Waldman, Towleroad.com’s resident law professor, took a macro view. Siding with Cathcart, Waldman wrote that Lithwick did not understand “what gay rights are really all about.” His argument is that Lambda Legal and company simply took a case that could bring them victory and crafted the appropriate litigation to put the best facts forward (as any good lawyer should). Waldman is a bit in love with his own writing, and it is sometimes difficult to get his point, but his (stripped down) argument is that it wasn’t so much Lawrence and Gardner who were the focus of the case, but rather gay people as a whole. In this he is correct.** Where Waldman is incorrect is in claiming that Lithwick misunderstood this, which is not true. A close reading of her New Yorker review indicates that she very much gets this. For his part, Waldman fails to comprehend that Lithwick is not evaluating legal strategy; she is reviewing a book about the Lawrence litigation.
In contrast, on Salon, Linda Hirshman takes a micro approach and focuses completely on Lawrence and Gardner in a blog post provocatively titled “Lowlifes deserve justice too.” Hirshman argues that it is rare for the perfect plaintiff to appear, and almost never in a criminal case, which Lawrence was. This is something Lithwick discussed in her review. Because of issues such as child custody and employment, gay couples who would otherwise be “perfect plaintiffs” would not (and indeed could not) get involved. Hirshman, like Waldman, is correct in the points she makes, but she completely misses the point of the entire controversy. The issue is not whether Lawrence and Gardner were the best of all possible plaintiffs (clearly they were), but whether their lawyers represented them honestly.
I cannot comment on Carpenter’s book, not having read it, but I do feel secure when I say that everyone from Lithwick onward has completely missed the most important point about Lawrence. It had nothing to do with John Lawrence, Tyron Gardner, or their lawyers and everything to do with the nine Justices of the Supreme Court.
The implication behind the debate between Lithwick and her defenders is that the Justices cared about the facts of the case. They did not. Nor does this debate give the Justices enough credit. Each one of them was at one time a lawyer, and all of them had served as judges for years. They all understood how lawyers write briefs. Moreover, whatever bad facts the attorneys for Lawrence and Gardner wrote in the briefs, the Justices had seen much worse. Waldman was right when he wrote that all gay people were on trial, but he failed to take that idea to its logical conclusion; the Justices also understood that all gay people were on trial.
Courts are law-making bodies. We hear foolish arguments about courts as “super legislatures,” but the truth is that courts, in addition to being interpreters of the law, are a check on the tyranny of the majority. That is why federal judges are given lifetime tenure and their pay cannot be decreased–so that they are not pressured when they have to make tough decisions. People tend to forget–or ignore–that court-made law is also law, and it always has been. It has been this way since Marbury v. Madison and probably even earlier.
In 1986, at the height of the AIDS crisis, a majority of the Supreme Court in Bowers v. Hardwick pushed back on the Warren Court and sexual revolutions. Perhaps allowing a distaste for homosexuality to get in the way of what was correct both morally and legally, 5 Justices found no constitutional right to adult, consensual, homosexual sex even in the privacy of one’s bedroom. In the decade following Bowers, six of the nine Justices stepped down and were replaced. Some of those replacements were more inclined to be friendly toward gays and lesbians both personally and in their jurisprudence. Concurrently, a massive education campaign began, which penetrated even into the halls of the Supreme Court. One of the Justices in the Bowers majority (Lewis Powell, who had stepped down in 1987) publicly admitted that he made a mistake, while another (Sandra Day O’Connor, who remained on the Court through Lawrence) privately felt the same.
In 1996, the new Supreme Court got its first chance to signal that it was ready to overturn Bowers in a case called Romer v. Evans. Although Romer did not directly overrule Bowers, it was practically a plea to gay rights advocates to bring a case that would allow the Court to do so. One Justice, Antonin Scalia, was especially annoyed by this, and if you thought his dissent in Lawrence was scathing, you haven’t read his Romer opinion.
With Lawrence, the Supreme Court got the case it was looking for, and (like Congress in 2010 with Don’t Ask Don’t Tell) a majority overturned the earlier law. Four of the five justices in the majority opinion joined the Court after Bowers, including the opinion’s author Justice Anthony Kennedy. The fifth Justice, John Paul Stevens, had been in the Bowers minority. O’Connor, not wanting to lose face by publicly admitting she was wrong, wrote a concurrence that actually went beyond the majority in terms of protection for gays and lesbians, but did so from a different legal avenue. In other words, the majority opinion said there is a fundamental right to private, adult, consensual homosexual sex; O’Connor said, there is no such right, but because straight people would not be arrested under such law, it unfairly targets gay people and for that reason is unconstitutional. Both the Lawrence majority and O’Connor’s concurrence were about gay people as a whole.
When a case gets to the Supreme Court, it is no longer about the parties involved; it is about the principles. That is why in the end, Lawrence and Gardner themselves made very little difference. That is also why gay rights advocates were, and to some extent still are, so nervous about Perry v. Brown, the Prop 8 case. The question is not whether the Justices will be swayed by the stories of four upstanding plaintiffs; the question is whether the Justices feel that now is the right time to start moving ahead with same-sex marriage.
* There are three types of books about Supreme Court cases. The first is a book about a specific case, how it came to be and how it came before the Supreme Court. Call this the Gideon’s Trumpet paradigm after Anthony Lewis’s famous book about Gideon v. Wainwright. This is the kind of book that Flagrant Conduct is. The second type of book is a history of a movement, which, for obvious reasons, is far longer and much more dense. The most famous example of this kind of book is Richard Kluger’s Simple Justice, which details the Civil Rights Movement’s legal strategy culminating in Brown v. Board of Education, although Brown is neither the beginning nor the end of the book. For the gay rights movement, there is no Simple Justice equivalent, but we are not yet at the point where such a book can or should be written. Finally there are the biographies of the Justices themselves, almost always written after their deaths and after their papers have been opened to researchers. Only one of the Justices who heard Lawrence has died, and while three have retired, no books are forthcoming in the foreseeable future.
** I make a similar point in another blog post that is currently in the editing process. The Lithwick affair cropped up while I was writing that post, and I felt like I needed to write about the kerfuffle before I could complete the post I had been writing.