Overruled!

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

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.
 

 

So you don’t see your position as being at odds with a socially conservative agenda?

No, I think gay marriage is a socially conservative reform.
 

Do those arguments tend to win over conservatives? Give us your best one-minute pitch to fellow Republicans.

This amendment will hurt a lot of families across the state without helping any families. So it’s bad public policy. Second, it is an intrusion on individual liberty. Third, it’s an expansion of the power of government in our lives. And fourth, we’re not just talking about legislation. We’re talking about a constitutional amendment. So there ought to be a higher burden of persuasion than for ordinary legislation. And in general, we ought to use our constitution to expand human freedom, not contract it.
 

The Twin Cities has a reputation for gay-friendliness. In fact, just last year, The Advocate, the national gay news magazine based in L.A., declared Minneapolis “the gayest city in America.” In your opinion, is that reputation warranted?

It certainly seems like a more tolerant place, to me, than a lot of other places I could imagine.
 

But does that tolerance have a limit? After all, California is also known as a very tolerant place, and a marriage amendment was approved by voters there.

It’s a lesson to us. Gay-friendliness isn’t always an indicator.

We’ve learned lessons from California, one being we cannot be complacent about this. Also, the polling on this issue consistently shows that younger voters oppose these amendments. And every single year, the polling shifts further in our favor. If we would have had this vote 10 years ago, I think it would have easily passed in Minnesota. Ten years in the future, this would easily be defeated. Today, we’re in between.
 

You’ve said that you feel Minnesota is “on the cusp” of accepting marriage for all. What might nudge us over the edge?

Same-sex couples and their families have to be willing to talk about this issue with others—and not take for granted that the people they know will be voting “no” in November. Some people will not be on their side. But talking that out will help bring people to a “no” vote.

I think Minnesotans are quite thoughtful citizens. I really think this place is quite different from others. We have a highly educated population. We have high voter turnout and a seriousness toward public issues. I think that puts us in a better position than other states.
 

Let’s talk about the stakes of the Minnesota vote. We could be the first state to actually vote down a marriage amendment. Does that matter?

I think it matters. It will show that we have put together a campaign that can succeed, one that can be a model for future campaigns. It will also be a marker of how much attitudes have changed on this issue and give greater courage to political leaders to get off the fence and see that it’s actually electorally wise to oppose these amendments. And it may discourage them from being placed on the ballot in more states.

So yes, there are cultural and political dimensions to this that are potentially important. Having said that, it is one state, and there will be future battles.
 

Speaking of future battles, California’s Proposition 8 looks headed for the Supreme Court, which means a decision could become the law of the land.

Well, it’s not certain that Prop 8 will make it to the Supreme Court. The Supreme Court doesn’t have to take any case. In fact, it rejects 99 percent of the cases it gets. If it does take the case, it’s not certain it would rule on a basis that would affect the entire country. It could only affect California. So same-sex advocates cannot rest on the hope that the great court is going to come to our rescue.
 

Gregory J. Scott is a regular contributor to Minnesota Monthly’s arts blog, TC Culture.
 

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