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Flagrant Conduct and the Right to Privacy

[ 17 ] March 20, 2012 |

The culmination of nearly a decade’s worth of research, Dale Carpenter’s Flagrant Conduct tells the story of Lawrence v. Texas, the landmark 2003 case holding that bans on “sodomy” violated the implicit constitutional right to privacy. Easily the best book of its kind since Richard Kluger’s Simple Justice was published in 1975, Flagrant Conduct is a rare combination of virtues. It is a gripping story of individuals fighting against systematic injustices intended for a general audience, but it is also a theoretically sophisticated work that represents an important contribution to legal scholarship. The facts about the case that Carpenter uncovers provide an especially powerful justification for the judicially enforced right to privacy that the Court applied in Lawrence.

The crucial legal background to the Lawrence case starts with Bowers v. Hardwick, the 1986 case that upheld Georgia’s ban on “sodomy.” It was always a shaky precedent, as a 5-4 decision that swing Justice Lewis Powell repudiated soon after leaving the bench. The case was also notable for the instructively contemptuous dismissals of Byron White’s majority opinion and Chief Justice Burger’s even more homophobic concurrence. On one level, Harry Blackmun was right to argue in his dissent that “the Court’s almost obsessive focus on homosexual activity is particularly hard to justify” given that on its face the Georgia statute applied to any oral or anal sex regardless of the gender of the partners. But on another level, the opinions of White and Burger were accurate expressions of the real meaning of the laws, which were intended not to actually stop private sexual relations but to stigmatize gays and lesbians even when they theoretically applied to heterosexual couples as well.

Narrowly decided, resting on bad history, at war with well-established precedents, and an open embarrassment to the justice who provided its fifth vote, Bowers was an unusually vulnerable precedent. But mounting a challenge to it was not easy, and the difficulties provide a rich story for Carpenter, who follows the Lawrence case from the point at which John Lawrence and Tyron Garner were arrested in the former’s apartment, accused of violating Texas’s ban on sodomy.

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.

One limitation of Flagrant Conduct is that Carpenter does very little to situate Lawrence within the context of the two landmark privacy cases that preceded it. This is unfortunate, because the salient facts Carpenter analyzes so powerfully apply to the Supreme Court’s previous cases as well. While none of the relevant opinions discuss issues of selective enforcement and class, they are critically relevant to all of the privacy cases. The ban on the use of contraception struck down in Griswold v. Connecticut had little effect on affluent people who could get a prescription from their physician, but made it much more difficult for poor people to obtain it (out of fear of violating the ban, not a single Planned Parenthood clinic operated in Connecticut while the ban was still in place.) The bans on abortion struck down in Roe v. Wade rarely led to convictions of doctors and did very little to prevent affluent women from obtaining safe abortions performed by licensed medical personnel in hospitals, but forced poor women to obtain risky black market abortions or be forced to carry unwanted pregnancies to term.

As this common thread suggests, the Court was right to hold that the Constitution implicitly protects a right to privacy in Griswold, and it was also right to extend this right in Lawrence. The powerful story told by Flagrant Conduct makes it clear that Lawrence v. Texas was an important triumph over a flagrant injustice.

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  1. rea says:

    The real flagrant conduct in the case began with the decision by police to march Carpenter and Garner out of the former’s home in handcuffs.

    Lawrence and Garner, surely. Carpenter is the author.

  2. Funkhauser says:

    And Liptak in the Times addendum: WH Rehnquist was a racist and a liar.

    • c u n d gulag says:

      Yes, he was.
      And I never thought I’d miss The Burger Court until Rehnquist took over. I thought, “Well, it can’t get any worse than THIS!”
      HA!
      And then I never thought I’d miss The Rehnquist Court – until Roberts was put in as CJ of the SCOTUS.

  3. Murc says:

    Is it wrong that I’ve always been skeptical of both Dale Carpenter and his viewpoints, however well-reasoned and put together they are, because of the total freakshows he willingly and enthusiastically associates himself with over at the Volokh Conspiracy?

    • Scott Lemieux says:

      Whatever his blog associates, don’t let it dissuade you from reading the book. It’s really outstanding.

    • Anonymoose says:

      As a former student of Carpenter’s, I can state that he’s dissimilar to the general “the founderz were rad libertarians! check out my tortured logic!” ilk found at Volokh.

      Also, Kerr and Volokh himself are perfectly decent legal minds, Volokh has one of the best First Amendment textbooks I’ve ever seen, even though I disagree with them. It’s the nutjobs like Barnett and Zywicki that make the site far less than it could be.

      • Richard says:

        I agree. Eugene Volokh and Kerr are fine legal minds and excellent writers. And while I disagree with almost everything Barnett says, he’s a pretty smart guy and a very effective oral advocate. The people I dislike over there are the real idealogues – Bernstein, Somin and the younger Volokh.

      • Murc says:

        Oh yeah, I forgot about Kerr. Although I have always found it a little depressing that one of the most prominent experts on the 4th Amendment is so tolerant of a lot of the efforts to nibble away at it.

        As for Eugene Volokh, if I recall correctly dude is on the record as explicitly supporting torture, not just for information-gathering purposes, but as an vengeful undertaking for no other purpose but punishment. So I basically regard societies failure to shun him as a failure.

  4. [...] 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 [...]

  5. [...] crimes for minor, consensual crimes like small-stakes gambling and drug possession on the books is a terrible idea. Sure, if you’re a middle class white person a SWAT team is unlikely to raid your poker game [...]

  6. [...] crimes for minor, consensual crimes like small-stakes gambling and drug possession on the books is a terrible idea. Sure, if you’re a middle class white person a SWAT team is unlikely to raid your poker game [...]

  7. [...] helps to explain the unusual facts of the case — the plaintiffs who brought the challenge almost certainly didn’t actually violate the statute.) But this doesn’t mean that Lawrence was irrelevant. Bowers had all kinds of awful ancillary [...]

  8. [...] has the same problems as allowing rarely enforced laws banning sodomy on the books: it’s an invitation to prosecutorial abuse inconsistent with the fundamental protections of the 14th [...]

  9. [...] has the same problems as allowing rarely enforced laws banning sodomy on the books: it’s an invitation to prosecutorial abuse inconsistent with the fundamental protections of the 14th [...]

  10. cpinva says:

    the state has no legitimate business attempting to regulate the sexual activities of consenting adults, most especially not in their own homes, absent some extremely compelling public interest. as near as I can tell, pretty much all the laws relating to sexual conduct among consenting adults find their roots in religion; “we don’t like it, because it violates our religious mores’.”

    most especially, the state has no business creeping around your home, phone or internet connection, in the hopes of finding a crime being committed, absent some compelling showing that there is a pretty good reason to think unlawful acts are being committed in those places. apparently, I am one of a shrinking number of American citizens who still feels this way.

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