Flagrant Conduct explores the arrest of John Lawrence and Tyron Garner, on a muggy Houston night, in September of 1998. Upon arrest, the men were charged with violating a Texas statute prohibiting deviate sexual conduct. The legal challenge to that statute started in a justice of the peace's office in Houston, and ended with the United States Supreme Court finding invalid all existing state sodomy laws. In telling the story of this case, Dale Carpenter has written a book that is part social history, part investigative journalism, part legal analysis, and part a series of personal profiles. No book could be all of those things equally well, and Flagrant Conduct does some better than others. On the whole, however, it tells an important civil rights story.
The book is primarily organized chronologically. Part I introduces the law, the city in which it was enforced, the men charged with violating it, and the police officers who charged them. The textured description of the gay community and gay politics in Houston in the latter part of the twentieth century is excellent. Smart, creative, and dedicated gay and lesbian activists in Houston worked tirelessly throughout the 1970s and 1980s to build political coalitions that protected gays and lesbians, notwithstanding random violence and police harassment, only to see those coalitions crumble with the rise of social conservatives in Texas. In light of this history, Carpenter could have been more heavy-handed in describing the importance of the Lawrence litigation. That which makes the story of gay Houston in the 1970s and 80s so compelling is that which makes constitutional protection necessary. Until the sexual activity that defines their political identity enjoys some measure of constitutional protection, the gay community is inevitably left vulnerable to shifting political winds.
The personal profiles of the plaintiffs and the police officers who arrested them are not as compelling. In fairness to Carpenter, it is difficult to develop profiles of people who resist talking too much about themselves. Lawrence and Gardner were guarded because they were told from start of the litigation to keep their mouths shut, lest they reveal details that might derail the case. The police officers may have been free to talk, but Carpenter's transparent disapproval of the officers' values leave the reader without a balanced assessment of the men involved.
Part II consists of four chapters dedicated to explaining the facts and theories that might have actually happened on the night of the arrest. Spoiler Alert: The most likely scenario – by far – is that Lawrence and Garner did not have sex at all that night. They were arrested for a crime they did not commit. Carpenter goes into extensive detail, reviewing each officer's version of the facts, the limited accounts provided by Lawrence and Garner, and his own hypotheses of what might have happened that evening. The variety of potential scenarios might be interesting if what had occurred mattered to the case, but as the lawyers understood from the beginning, the actual events were unimportant, as long as no one challenged what happened.
Part III describes the case after the arrests. Carpenter's sleuthing into how information travelled in the immediate aftermath of the arrests gives the book wonderful detail: the apolitical closeted gay file clerk in the justice of the peace's office, whose interest was mostly piqued because his (also closeted) partner had once worked with the arresting officer, told the very politically active bartender at the local gay bar of the arrests. The bartender knew to call the better-connected Houston lawyer, who knew that Lambda Legal would be interested. Some people took care to make sure that the defendants felt safe, others took care to make sure key national players were involved.
The saga through the Texas court system also provides nice insights into the Republican Party in Texas. Carpenter shows how little enthusiasm there was, at either the prosecutorial or judicial levels, for enforcing this law. Initially, most of the Texas authorities appear to have felt, as Justice Clarence Thomas did, that this was an “uncommonly silly” law. Eventually, however, social conservative political action caught up with the case, and the higher courts in Texas upheld the statute. As the plaintiffs' lawyers had always wanted, they headed for the United States Supreme Court.
The book loses much of its narrative energy at this point. It provides extensive detail about the potential legal theories, the lawyers' decision-making processes with regard to which theories to use, and the execution of those theories in the argument at the Supreme Court. For the non-lawyer, it is not clear that the nuances of the different theories make much difference, and instead of a story about interesting people from Texas, the book becomes a story about a group of homogenous, elite, East Coast lawyers, all of whom seem to blend together into one big resume.
One point that does emerge clearly from Carpenter's explication of the lawyers' strategies is that the queer theoretic critiques of Justice Anthony Kennedy's opinion in Lawrence—that it roots constitutional protection of sex too much in relationships and intimacy and not enough in the raw power of sexuality—are critiques of the lawyers who wrote the brief and argued the case. Justice Kennedy wrote the opinion that the elite lawyers asked him to write.
There is much to learn in this book. Its moralizing and theorizing may be overdone, but many of its details are wonderfully enlightening. And the basic story, forming as it does the background for the most important civil rights case in a half century, is undeniably important.
