I’m still waiting for my copy of Dale Carpenter’s book, but Dahlia Lithwick’s review is a beautifully written and important piece in its own right. Lithwick’s piece focuses on a central irony of the case. Kennedy’s opinion famously focused on the importance of relationships and intimacy, but Lawrence and Garner — the two men who were arrested for violating Texas’s sodomy laws, leading to the legal landmark — were not in a relationship and never had sex. (Of the two of four policemen who claimed to see Lawrence and Garner engaged in sexual relations, one suggested that they were engaged in oral sex and one said they engaged in anal sex. Were it not for the broader issues involved, it seems safe to say that the charge would have had trouble holding up even in a Texas court.) Lawrence and Garner were not plaintiffs with the kind of story who get movies made about them, a necessity created by the fact that a couple in a same-sex relationship with children would have had too much to lose:
That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.
Although this wasn’t the case LBGT rights litigators would have chosen, it worked — because the Supreme Court wanted to act and had a story it wanted to tell.
Another example of this phenomenon, which worked from the other direction, is Gideon v. Wainwright, the 1963 case that held that the 6th Amendment’s right to counsel was applicable to the states. Clarence Earl Gideon was also living on the economic margins, but his basic story — a very possibly innocent man, denied a fair trial, who scrawled an in forma pauperis petition in longhand from his jail cell and got his rights vindicated by the Supreme Court of the United States — is different. Unlike the tale of Lawrence and Garner, this is an inherently compelling legal story. Gideon was literally portrayed by Henry Fonda in a movie based on the excellent bestselling book about his case that remains in print.
And yet, as Scot Powe’s classic history of the Warren Court makes clear Gideon v. Wainwright was in its own way a Court-created story as much as Lawrence. (For that matter, in its details, the Anthony Lewis book does as well.) As Powe says, Gideon isn’t exactly the story of a lone defendant triumphing against insurmountable odds, as the fact that his case was argued at the Supreme Court by LBJ’s personal legal fixer and future two-time Supreme Court nominee would make readily apparent:
Somewhat less well-known are the facts that twenty-two states filed amicus briefs on Gideon’s side and that Florida could gain the amicus support of only Alabama and North Carolina for its claim that an accused could be validly convicted without the aid of counsel; Mississippi and South Carolina were the only other states not offering counsel — hardly, especially in 1963, a stellar lineup. Moreover, hitherto unmined files in the Clark and Douglas Papers reveal that five of the eight justices had already joined an opinion in another case holding that a defendant was entitled to counsel on appeal even if he could not afford a lawyer. If there is a right to counsel after trial, there is surely a right to counsel at trial. That opinion, however, was not published at the time because the case was put over to the next term so that Fortas could win Gideon. (pp.179-80.)
Lewis didn’t have access to the information about the case Powe discusses at the time, but as Powe says the conference vote ironically meant that Gideon himself could have argued his case in front of the Supreme Court and won. In addition to that case, the Court could easily have used the 1962 case Carnley v. Cochran to incorporate the right to counsel. But the Court decided that case on narrow procedural grounds because Warren’s clerks had already found Gideon and the Court preferred to announce the overruling of a major precedent in a case involving someone who was possibly innocent of a minor burglary rather than in a case involving someone who was probably guilty of incest and child molestation.
I don’t mean to suggest that this means that the selection of plaintiffs and case facts isn’t important; it certainly is. But courts can often find a way to tell the story they want to tell.
By the way, the sad conclusion to the Lithwick review:
At a press conference after the decision was announced, Lawrence read a brief prepared statement and Garner said nothing. Some advocates hoped that Garner might have a career as a gay-rights spokesman. After he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. The case is called Lawrence v. Texas. John Lawrence died last November. Almost no one took note. Garner died five years earlier, at the age of thirty-nine. When Lambda Legal proved unable to raise funds for a proper memorial or burial, Harris County cremated him and sent his ashes home to his family in a plastic bag. There was no funeral.
I’m glad Carpenter has chosen to tell their story, and I’m looking forward to his book.