U of M law professor Dale Carpenter’s new book claims that everything we thought we knew about a landmark 2003 Supreme Court case is wrong—and that same-sex marriage makes sense, even to Republicans
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When University of Minnesota law professor Dale Carpenter was asked to write a scholarly article on Lawrence v. Texas—the landmark 2003 Supreme Court case that invalidated the nation’s sodomy laws and dealt a huge blow to codified discrimination against gays—he didn’t expect to find any bombshells. But soon he had the legal scoop of the century: John Lawrence and Tyron Garner, the two defendants who pled “no-contest” to charges of having illegal sex with one another, never actually had sex. In fact, they barely even knew each other. The discovery launched Carpenter into a nine-year research project as he attempted to uncover the truth behind one of the most monumental cases in constitutional history. The resulting book, Flagrant Conduct: the Story of “Lawrence v. Texas,” is as brilliantly written as it is reported, drawing praise from critics both legal and literary and even landing on the cover of the New York Times Book Review. We spoke to Carpenter about the curious case—and the implications it may have for this November’s vote to ban same-sex marriage.
Your book has won a lot of praise not just for its clear and comprehensive reporting, but also for its literary merits. The San Francisco Chronicle described its opening chapters as “a 1950s pulp novel crossed with an episode of Desperate Housewives.” How did you learn to write like that?
Well, I definitely had to de-lawyer the book for a general audience. After so many years in academia, you write in a very jargon-heavy, stilted way. Let’s just say I had great editors.
How is it possible that no one ever figured out that these two men weren’t lovers?
Certainly the men knew. And their lawyers knew. But in terms of the law, there was never a trial—so there was never any testimony. All the judge ever saw was this 69-word complaint filed by the lead police officer the night of the arrest. And neither side of the conflict—neither the gay-rights activists nor their opponents—had any interest in getting at the facts. This was about challenging the constitutionality of a law.
All I did was call up these people and ask to talk to them. Why didn’t a reporter do that earlier? Well, when these two men were arrested, it wasn’t yet a Supreme Court case. It was a $200 fine. At the time, it wasn’t a huge deal. By the time it was a huge deal, the men were not allowed to speak to the press. So there was never any official record of what actually happened.
How unusual is that legal strategy, to urge defendants not to contest a police report that they know is false?
Well, the objective of the legal profession is not to arrive at the truth. An attorney’s responsibility is to zealously advocate for the client. We do not have an inquisitorial system of justice; we have an adversarial system of justice. So there’s nobody, except for the jury or judge, trying to find out the truth. In this case, it would have done the defense team no good to simply find these men factually innocent because there would still be millions of other people still subjected to the law. So that was part of the calculation.
You’ve discussed how the invalidating of sodomy laws has set the stage for the legalization of gay marriage. What’s the connection between the two?
Prior to Lawrence v. Texas, the Supreme Court saw gay people really only in terms of sex—unconnected to relationships, unconnected to families. With this ruling, the court made it clear that, for gay people and straight people, sex can be an important aspect of a larger relationship.
Also, it would be very hard to imagine a person having a right to marry another person with whom they had no right to be intimate with. So Lawrence at least removed a huge roadblock to same-sex marriage.
You’re a Republican—one of several working with Minnesotans United for All Families, the lobbying group fighting against the proposed ban on same-sex marriages. Why should we not be surprised that some Republicans support gay marriage?
The reason I’m a Republican, and the reason why others opposing this are Republicans, is that first and foremost we see high value in individual liberty and autonomy. We’d like to see more limited government. We do not see this amendment in any way promoting the values of limited government or individual liberty. In fact, it only detracts from them.
In addition to all that, I think a lot of us are also socially conservative, in the sense that we think it’s a good thing for people to have an avenue in their lives that they can choose to settle down, commit to stable relationships, and have their families protected by law.