Flagrant conduct : the story of Lawrence v. Texas : how a bedroom arrest decriminalized gay Americans

The state of gay rights in the United States is changing so rapidly that we forget sometimes how quickly change has come. It was only in 2003, for instance, that the Supreme Court struck down state bans on sodomy in the case of Lawrence v. Texas. Dale Carpenter's book Flagrant Conduct looks at how that case came to the Supreme Court, and how it was won. It's not only a fine piece of journalism, but entertaining reading as well.

John Lawrence and Tyson Garner were arrested by Houston police in 1998 when they were discovered having sex in the bedroom of Lawrence's apartment. They'd been summoned by an angry friend of Garner's, who had reported "a crazy black man waving a gun around." Texas was among the states that still had sodomy laws on the books, and its law specifically targeted gay sex; sodomy was legal for heterosexuals.

Lawrence and Garner were nobody's idea of the dream clients for such a case. They were lower-middle class, an interracial couple separated by about 25 years in age, not in a long-term relationship (not much more than casual acquiantances, really, and Carpenter makes a strong case that it's unlikely they were even having sex in the first place) -- not at all the pair of handsome, charming men with perfect smiles that you'd love to represent. Carpenter’s reporting brings the men to vivid life, making them more than just names on a legal docket. The increasing politicization of Lawrence as the case progresses is one of the book’s most interesting subplots.

As flawed as the two men may have been, cases of people being arrested in their home for violation of such laws were so rare that when news of the arrest reached the Houston gay rights community, they knew that this was as good a test case as they would ever get. And everyone involved understood the importance of the case. One of the fascinating parts of Carpenter’s reporting is watching how the county and state judges and prosecutors help the case along; there were numerous people along the way who could have declined to prosecute or decided to throw the case out of court, which would have kept it from ever getting to the Supreme Court.

Carpenter never suggests that anyone was actually trying to throw the case, but the legal mismatch when the case did arrive at the Supreme Court was striking. The defense had quickly been taken over by the activist community, who hired the best civil rights attorneys in the country to argue the case; Texas was represented by the Harris County district attorney, who had never argued before the Supreme Court, and had hired no outside lawyers to assist him in his preparation.

Carpenter does an excellent job of explaining the case’s legal details so that the non-lawyer can follow what’s happening. His description of the arguments before the Supreme Court is detailed and comprehensive. He is particularly good at explaining the implications of the questions asked by the Justices, and analyzing how their questions reveal their thinking about the case.