by Dale Carpenter. New York: W. W. Norton & Company. 2012. 345 pp. Hardcover $29.95. ISBN: 978-0-393-06208-3. Paperback $16.95. ISBN: 978-0-393-34512-4.

Reviewed by Benjamin O. Arah, Department of History & Government, Bowie State University. E-Mail Address: barah [at] bowiestate.edu


This informative, well-written, detail-oriented, and engaging book, LAWRENCE V. TEXAS, by Dale Carpenter, deserves the praise that it has received since its publication in March of 2012. Now available in paperback, the book narrates the story of LAWRENCE V. TEXAS (2003). Dale Carpenter paints an apt and vivid picture, in “How a Bedroom Arrest Decriminalized Gay Americans.” This is what makes this landmark case an appealing and compelling narrative, and Carpenter set out to tell the story that was about gay rights as human rights in their quest for justice and equal protection under the U.S. Constitution.

Dale Carpenter (a Texan, the Earl R. Larson Professor of Civil Rights and Civil Liberties at the University of Minnesota Law School) helped to write the amicus brief in support of John G. Lawrence and Tyron Garner, the petitioners in this pivotal case. In addition to teaching constitutional law, the First Amendment, and law and sexual orientation, he appears to be one of the active gay rights lawyers who “took their case, LAWRENCE V. TEXAS, to the Supreme Court, which struck down the Texas sodomy law and similar laws in twelve other states” (Carpenter 2012, xii). Carpenter’s goal in writing the book was, in part, to bring to light the corrupting tendencies of such sodomy laws that were directed at specific human conduct and used to target and harass a group of citizens who happened to be the gay Americans. Giving title to the book, he is particularly critical of the Harris County police, since it was their “deputies whose flagrant conduct gave us Lawrence” for “enforcing the sodomy laws against model citizens in the privacy of their well-appointed homes” (pp.280-281).

The book is a morally awakening story in which Carpenter meticulously unearthed the legal history of social injustice, with “deep malignity,” inherent in the sodomy laws of the United States. LAWRENCE V. TEXAS (2003), involved “two gay men” (55-year old John Geddes Lawrence and 31-year old Tyron Garner), who in 1998 were arrested and charged with having “deviate” consensual homosexual intercourse, in the privacy of Lawrence’s bedroom; the “troublemaker” (a 40-year old Robert Royce Eubanks), who called the Texas’ Harris County police and falsely reported about “an armed black man going crazy with a gun”; and the misconduct of the police in arresting the two men and having them spend the night in the county jail, raising questions concerning the Texas Homosexual Conduct that criminalized minor offenses or personal indiscretions (under a Class C misdemeanor). [*585]

Carpenter set out on a personal and professional journey, as he writes, “to correct and enrich our understanding of the case, by ferreting out what happened that September night in Houston and by explaining the way gay civil rights lawyers rewrote a snarled human story as part of a pristine legal argument acceptable to a basically conservative Supreme Court” (p.xii). FLAGRANT CONDUCT is a story behind the story, informing readers of the long history of discrimination and social injustice, of perverted justice with “deep malignity” in these anti-sodomy laws, against gays and lesbians or other minorities that finally culminated in the reckless police arrest of the two gay men based on a false report by disgruntled man (Eubanks, who was sentenced 30 days in prison).

The case of LAWRENCE V. TEXAS, as the book rightly indicates, has serious political and moral implications because, “nobody foresaw the cultural storm that would gather from the events,” and no one could “have foreseen how a single arrest might expose the deep malignity in a law that was superficially directed at certain conduct, but that in practice was used to brand an entire group of people as strangers to moral tradition” (2012, p. xi). Carpenter conducted extensive, in-depth research including systematic interviews with nearly all the case's key individuals, and his conclusion was that the police probably did not physically witness the two gay men engage in any sexual conduct If the police deputies did not see the sexual conduct, then charging and arresting John Geddes Lawrence and Tyron Garner would amount to law enforcement misconduct (2012, p. xiii). Forcing the case to reach Supreme Court was a smart legal strategy, because it gave the justices the opportunity to review the history of sodomy laws and revisit their decision in BOWERS V. HARDWICK (1986), which failed to provide a constitutional shelter for sexual privacy. LAWRENCE, by a 6-3 vote, overturned BOWERS and struck down anti-sodomy laws as a violation of the 14th Amendment’s protection of liberty.

Carpenter has the tenacity of purpose to achieve two major goals. He takes the reader on a journey to reveal the drama inherent in the case as he endeavors to (a) unearth the legal history of sodomy laws in order to provide an accurate account and correct understanding of the story behind LAWRENCE V. TEXAS; and (b) expose what he felt was a “deep malignity” in these sodomy laws as practiced in some of the U.S. states (particularly in Texas, Missouri, Oklahoma, Kansas) to target and punish the conducts of certain groups and individuals by treating them as second-class citizens and “strangers to moral tradition” (pp. xi-xii).

FLAGRANT CONDUCT is a thought-provoking book designed to shock our moral sensibilities about the nature of sodomy laws in the United States, and Carpenter uses it to challenge our previous knowledge of LAWRENCE, such as the myth that they were caught in a sexual act. This book is about “flagrant conduct,” a phrase which the author deliberately used to underscore his critical perspective and revulsion with the Texas’ Homosexual Conduct Law, and sodomy laws generally, that were used to deny gay men and lesbians their fundamental rights and equal treatment. In this context, Carpenter used the phrase “flagrant conduct” to express a situation that was utterly “offensive, [*586] heinous, egregious, outrageous, blatant, scandalous, brazen, atrocious, reprehensible, and palpably inconsistent with our sense of right and wrong or justice.” For Carpenter, it was not that the sexual activity between John Geddes Lawrence and Tyron Garner was a kind of “deviate” behavior as such, but that what the police deputies did by handcuffing them in the privacy of Lawrence’s bedroom and dragging them out into the public space was unethical and unconstitutional. Carpenter feels that it was irresponsible to use precious prosecutorial time and money to pursue two harmless gay men who, even if they were having sex, had done no harm nor engaged in acts that undermined the public good. It was travesty of justice to learn that judges willingly refused to hear the petitioners’ case, and would not even listen to the men’s rightful constitutional claims.

In spite of these obstacles, the legal team persisted to challenge the flagrant use of state’s superficial law to criminalize personal choices, when each American was entitled to his or her liberty to make such choices or decisions about their sexual live and activities. In the section dealing with the “Sweet Land of Liberty,” Carpenter reflects on the impact of the case by noting that the deeper reality of LAWRENCE, beyond its emotional social, and legal complexities, is about the real lives of people and the true reflection of life in America. He adds that, in ordinary life, “People do indeed lead complex lives…fall in love, cheat, lie drink” but, in all, we have to learn to live and respect each other. For without tolerance, “there would be very few people –gay or straight –entitled to liberty” (2012, p.281). It was wrong and unconstitutional to arrest people having consensual sexual activity in the privacy of their own homes, regardless of whether the participants were gay and lesbians or straight men and women for that matter. The beauty of our American constitutional democracy and its unique political experience is that the concept of liberty, according to Carpenter, includes the freedom to make choices that the majority of people may find distasteful or even loathsome, and the Supreme Court decision in LAWRENCE V. TEXAS has rendered discriminatory sodomy laws both unconstitutional and unenforceable.

The book has an introduction and an epilogue, and is divided into three major parts as follows: “Before the Arrests” (pp.3-58), “The Arrests” (pp.61-109), and “After the Arrests” (pp.113-277). “Before the Arrests” situates the story in its historical context, with brief background information about the main participants. In the second part, “The Arrests,” Carpenter takes the reader back to the night of September 17, 1998, and provides the critical dimension of the perspectives of the police and Lawrence and Garner, in order to set the stage to expose the inherent weakness of the sodomy law in Texas (as well as in other states). The third part, “After the Arrests,” is a critical discussion and description of what happened following the arrests of the two men, how the gay-rights activists and lawyers took up the case, and how the case eventually ended up in the laps of the Supreme Court justices, finishing with a reflection on its political implications and legal precedents. Throughout FLAGRANT CONDUCT, Carpenter focused on trying to correct and enrich our understanding of the LAWRENCE V. TEXAS case, “by ferreting out what happened those September nights in Houston and by [*587] explaining the way gay civil right lawyers rewrote a snarled human story as part of a pristine legal argument acceptable to a basically conservative Supreme Court” (Carpenter 2012, p.xii). This book is an excellent and highly informative book that it truly worth reading by anyone who is keenly interested in equality and social justice for all, by those who believe that freedom gives each individual the right to make certain personal choices, and also by everyone who values privacy as a fundamental right that citizens of any nation have retained for themselves and which no government has any business in violating.

Copyright 2013 by the Author, Benjamin O. Arah.