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Essay
March 26, 2013
This week’s Supreme Court hearings on same-sex marriage cases owe much to Lawrence v. Texas, the 2003 ruling that overturned anti-sodomy laws. However, the story behind Lawrence isn’t what many suppose.
A cake for a same-sex wedding at Morfey's Cake Shoppe in Seattle in 2004 (CNS photo from Reuters)

The recent endorsement of same-sex marriage by former Secretary of State Hillary Clinton came as no surprise. She joins a long list of politicians—mostly Democrats, but increasingly more Republicans—who claim to have been “recently” converted to the cause. Earlier this month her husband, the former President William Clinton, published a piece in the Washington Post in which he said he regretted signing the Defense of Marriage Act in 1996. New York’s Governor Andrew Cuomo, who is Catholic, made gay marriage a priority in 2011—giving political cover to Republican legislators whose votes he needed. And, Maryland’s Catholic Governor Martin O’Malley made gay marriage a priority in 2012, winning passage in a Democratic dominated legislature.

Even some conservative Republicans are joining that list. Only a week ago, conservative Senator Rob Portman of Ohio spoke out in support of same-sex marriage. Learning that his own “much-loved” son was gay, Portman said, “changed everything.”

It is not a coincidence these conversion stories are coordinated for release this month. They are all intended to have an impact on the drama that begins today as the Supreme Court begins to hear oral arguments challenging the constitutionality of laws defining marriage as the union of one man and one woman. All of these stories speak of “love” as the reason for the changes of heart. In a video for the gay advocacy group Human Rights Campaign, Mrs. Clinton recalls that a few years ago she and her husband celebrated the marriage of their daughter, Chelsea, to the “love of her life.” Claiming that she wants “all parents,” including the parents of gays and lesbians, to share in that kind of love and happiness, Clinton said she has been “converted by people I have known and loved, by my experience representing our nation on the world stage, my devotion to law and human rights, and the guiding principles of my faith.”

The real “love” story behind Lawrence v. Texas

“Love” is always the underlying message for the advocates for same-sex marriage. It is a strategy that has worked well in the past—as some of the Supreme Court justices seem to love a story of love. On March 26, 2003—10 years ago to the day of the current same-sex marriage case—oral arguments began in Lawrence v. Texas, a case that made the current same-sex marriage case possible because it challenged the constitutionality of anti-sodomy laws. It was a case that was presented as a love story.

Indeed, Lawrence v. Texas was presented to the justices as a story of the “bond” between two men who were “making love” in their own bedroom. In fact it was such a compelling story of the “bonds” of love that Justice Anthony Kennedy’s majority opinion read that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”

But what Justice Kennedy may not have known in 2003 was that the love-story narrative surrounding the plaintiffs in Lawrence was always a lie. Flagrant Conduct, a book published last March by Dale Carpenter, a professor at the University of Minnesota Law School, argues that not only was Lawrence not a case about what Justice Kennedy would have defined as a loving relationship, it may not even have been a story about consenting adult sex.  

According to Carpenter, in September 1998 John Lawrence, age 55, and Tyron Garner, age 31, the plaintiffs in the case, were partying in Lawrence’s Houston apartment with Garner’s lover, Robert Eubanks—a homeless man with a drinking problem. Lawrence had a long list of drunk-driving violations himself, including a conviction for murder by automobile in 1967. The men were all very drunk and planning to spend the night with Lawrence. But the party ended abruptly when Eubanks seems to have thought that his boyfriend, Garner, was flirting with Lawrence. Leaving the apartment in a jealous rage, Eubanks then called the police to falsely report “a black male going crazy with a gun” at the apartment. Garner was black, Lawrence was white.

When the police arrived, Eubanks directed them to Lawrence’s unlocked apartment where two of the four responding officers claimed to have seen Lawrence and Garner engaging in what was then unlawful sexual intercourse. But the two officers gave completely different descriptions of what they saw. The other two officers said they saw nothing. In the initial interrogations, Garner and Lawrence denied they had been having sex.

Robert Eubanks was immediately charged with making a false report, and Lawrence and Garner were charged with “deviate” sexual behavior. But, realizing how difficult it would be to find a case to challenge the Texas sodomy statute, national gay-rights advocacy groups effectively repackaged the sordid story of Lawrence and Garner into a love story—with heroic lovers struggling to solidify their bond in a society that despised them. Once the advocates got a hold on the case as a way to challenge the anti-sodomy laws, Garner and Lawrence changed their plea from “not guilty” to “no contest.” It was all based on a lie.

As Dahlia Lithwick wrote in a New Yorker review of Carpenter’s book, “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.” And until Carpenter’s book was released in 2012, no one ever knew. And, more importantly, no one really cared—then or now—about John Lawrence or Tyron Garner. Lawrence and Garner were useful at the time—but once the case was decided, they were no longer needed. For a while, Garner appeared to show some promise as a spokesman in the struggle for gay rights. But, as Lithwick points out, after he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. Garner died five years ago at the age of 39. Writes Lithwick: “When [gay advocacy group] Lambda Legal was 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.”

Opening the door to “judicial imposition”?

It is not difficult to predict the kinds of stories of struggle, love, and discrimination that will be presented to the Court in oral arguments on March 26 and 27. One of plaintiffs is an 83-year-old woman who has already chronicled her painful life “living in the shadows” as a lesbian. Her complaint is that she had to pay a tax of $363,053 when her same-sex spouse died four years ago and left her an estate. Had she married a man, she would not have had to pay the taxes. Her story of love and loss will move many—perhaps even some of the justices—though her claims have little to do with what is written in the Constitution.

It is possible that the current challenges to the definition of marriage will join the ranks of other prearranged test cases to be heard at the Supreme Court. In Griswold v. Connecticut (1965), the case that enshrined the “right to marital privacy” in the use of contraceptives, the persons arrested for setting up a birth-control clinic in violation of a state anti-contraceptives law had long been active in the birth-control movement; Estelle Griswold, for whom the case was named, served as the executive director of Planned Parenthood at the time. Likewise, in Eisenstadt v. Baird (1972), the Supreme Court ruling that extended the right to privacy to unmarried couples, Bill Baird, the defendant, was a longtime population-control advocate who continues to boast on his website that he had “been arrested eight times in five different states for lecturing on birth control.” Hardly a dispassionate defendant hoping to help women, longtime activist Baird was a population control zealot who also claims to have set up the nation’s first illegal abortion clinic, and introduced the first gay rights bill in 1969.

The stories of love and loss that were told to the justices in Griswold, Eisenstadt, and later in Lawrence v. Texas, all provide a foundation of falsehoods for the current debate on same-sex marriage. Lawrence provided a precedent that Justice Antonin Scalia predicted would open the door to “judicial imposition of homosexual marriage.”

Justice Scalia was right. Lawrence held that intimate consensual sexual conduct was part of the liberty protected by due process under the 14th Amendment. Writing for the dissent in a 6-3 decision, which struck down sodomy laws as unconstitutional, Justice Scalia joined Justice Clarence Thomas and then-Chief Justice William H. Rehnquist in accusing the majority of “taking sides in the culture wars” and “ending all morals legislation.” Justice Scalia knew then—as he knows now—that the Lawrence love story, which was so compelling for Justice Kennedy and his colleagues, has brought us all to a place where same-sex marriage seems almost inevitable.

 
About the Author
Anne Hendershott 

Anne Hendershott is professor of sociology and Director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville, She is the co-author of Renewal: How a New Generation of Priests and Bishops are Revitalizing the Church (Encounter Books).
 

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