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Supreme Court History in 'More Perfect': The Men Who Legalized Gay Sex

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By Casey C. Sullivan, Esq. on August 19, 2016 11:57 AM

In this week's 'More Perfect' recap, our weekly look into NPR's new Supreme Court podcast, we're looking at the 'imperfect plaintiffs' behind some of the Supreme Court's most important cases.

Actually, we're looking at just two imperfect plaintiffs, John Lawrence and Tyron Garner. That's Lawrence as in Lawrence v. Texas, the Supreme Court case that overturned state bans on sodomy. It's a case that starts with police bursting in on Lawrence and Garner, disrobed in their apartment, and ends with one of the most important gay rights victories ever. It's the case that helped lay the foundation for Windsor and Obergefell a decade later. But the story behind Lawrence might not be what you were expecting.

A Perfect Case, If Only It Had a Plaintiff

Episode four of "More Perfect" looks at the people behind the test cases that make their way to the Supreme Court. In fact, it looks at two test cases. But since this is a podcast, it doesn't have to fit into a regularly programmed slot. So this episode is twice as long as usual, and we'll be covering it in two posts. Tune in next week when we go over Fisher v. University of Texas.

But first, Lawrence. As anyone who took Con Law post-2003 knows, Lawrence held that the Due Process Clause protects the rights of consenting adults, of the same sex, to engage in "certain intimate sexual conduct." The case overturned anti-sodomy statutes in Texas and 12 other states, which criminalized gay and lesbian sexual relationships, along with, in some states, non-procreative heterosexual sex. In doing so, the Court also overruled Bowers v. Hardwick, the opinion upholding such bans, decided just 17 years before.

At the time, as "More Perfect" notes, Justice Scalia warned that the decision would lead us down the slippery slope to gay marriage. He was right. When the Court ruled last June that the right to marry was a fundamental right under the constitution, Lawrence was a foundational part of its logic. But Scalia also warned that Lawrence could also lead to the legalization of recreational heroin, so...

Long before the case got to the Supreme Court, though, there were the activists looking to overturn such laws. The just needed a good plaintiff. Enter John Lawrence.

The Arrest

  • Lawrence, which was decided in 2003, begins on September 17, 1998, when John Lawrence and Tyron Garner were arrested in Lawrence's Houston apartment. Sheriff's deputies had been called to the complex on reports that a man with a gun was "going crazy." When they arrived, they heard no gunshots, but someone in the courtyard pointed them to Lawrence's apartment.
  • The deputies barged in, guns drawn and ready to shoot. They didn't find any massacre, however. According to the deputies, they found Lawrence and Garner in flagrante delicto.
  • Instead of saying "Oh phew, no massacre here!" and going on their way, the deputies arrested the couple for "deviate sex." Lawrence and Garner were taken out, in cuffs, wearing only their underwear.
  • The man who had called in the shooting and had directed the deputies to Lawrence's apartment was apparently a scorned ex-boyfriend.

How the Case Began

  • Lawrence and Garner were hardly gay rights activists. In fact, they may not have even known such a thing existed. But they soon became the face of one of gay rights litigation.
  • Lawrence's case was discovered almost by happenstance. He and Garner were arrested on Thursday. On Friday, a gay clerk in the local courthouse processed their papers. That night, the clerk recounted the story to Lane Lewis, the bartender at a Houston gay bar.
  • Lewis was also a community organizer. He tracked Lawrence and Garner down and convinced them to challenge their arrest. According to Lewis, he had to beg the couple not to plead out.
  • But Lawrence's case wasn't exactly perfect. According to the couple, they weren't even having sex when they were arrested. As they told it, the cops had burst in, identified them as gay, and decided to arrest them, concocting the sex story as justification. The pair was just watching T.V. in their living room.
  • The deputies' story was a bit of a mess. Only two deputies said they saw the two have sex, but they disagreed on exactly what sort of sex was being had. The other two said they saw nothing at all.
  • None of that mattered to the lawyer Lewis had set the couple up with, Mitchell Katine. "Don't ever say that again," he told Lawrence. After all, if the D.A. dropped charges, there would be no test case to pursue.
  • When people accused Katine of setting up the case, his response was simply, "Who cares?"

The Couple Behind Lawrence

  • Lawrence and Garner were a bit of a May-December romance. Lawrence was 55, Garner was 31, more than 20 years his junior.
  • The two didn't have the cleanest records, either. Garner had some minor criminal convictions; Lawrence had a series of drunk driving convictions, including one for murder by automobile.
  • Both of the men were heavy drinkers. Their hobbies included going to "seedy hotels" and getting roaring drunk, to the point where the police would sometimes be called.
  • To stave off any bad publicity, Katine traveled to local hotels and warned them about the couple. If anything goes wrong with them, he'd say, call me, not the police. And they did.
  • Lawrence was decided in 2003. Garner died in 2006, from meningitis. He was only 39-years old. He had been out of work and was nearly penniless. His family could not afford a burial, or even to pick his body up from the coroner.
  • Lawrence died five years later, in 2011. No one involved in his case found out until a month later. Though he died at home, with his partner, his passing went "unknown and unmourned" by those who had helped fight his case.

Texas's sodomy law, despite Lawrence and Garner's Supreme Court win, remains on the books. For 13 years, the Texas legislature has refused to repeal it.

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