Later On

A blog written for those whose interests more or less match mine.

The story of Lawrence v. Texas

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David Oshinsky has an interesting review in the NY Times of what sounds like an intriguing book, Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans:

Texas justice has rarely been kind to homosexuals. Take, for example, the case of Calvin Burdine, who was sentenced to death in 1984 for the murder of his male companion. Burdine’s court-­appointed lawyer, when not dozing, referred to his client as a “fairy.” The prosecutor, meanwhile, demanded the death penalty by arguing that gays actually look forward to the rewards of prison life. “Sending a homosexual to the penitentiary,” he claimed, “certainly isn’t a very bad punishment for a homosexual.” Astonishingly, a federal appeals panel first upheld the verdict on the grounds that nothing in the law guarantees a defendant the right to a fully conscious attorney. Burdine eventually won a new trial, at which he was again convicted, but this time sentenced to life in prison — a veritable candy store, it was said, for a “pervert” like him.

Texas, like most states, has a long history of criminalizing sodomy. What makes it special, however, is its obsession with the issue, which led Lone Star lawmakers to repeatedly refine their statutes over time. In 1943, Texas added oral sex to a long list of prohibited offenses. Thirty years later, it passed a law containing the “Homosexual Conduct” provision, which banned both oral and anal sex, but only when performed “with another individual of the same sex.” As such, the new law expanded the sexual freedom of heterosexuals while doing just the opposite for homosexuals. Put bluntly, it was now legal in Texas to have sex with a farm animal, but not with someone of the same gender.

The law was enforced in public spaces, like a park or a tavern, but rarely in private settings like a home. It was in most ways symbolic — a means to stigmatize gay men and women and keep them in the shadows. But it did earn a notorious, if indirect, endorsement in 1986, when a bitterly divided United States Supreme Court upheld a Georgia sodomy law in some ways similar to the one in Texas. The court had previously approved of “privacy” rights for both married and unmarried heterosexuals and for pregnant women. But in the case of Bowers v. Hardwick, involving a police officer who had encountered a gay couple having sex in a private dwelling, it refused to go further. “The issue presented is whether the federal Constitution confers a fundamental right upon homo­sexuals to engage in sodomy,” Justice Byron White wrote for the majority. The answer was no.

The Supreme Court is not above correcting its worst mistakes. It took half a century to reverse itself on the evils of racial segregation, for example, but only three years to overturn its egregious 1940 ruling against those who refused, on religious grounds, to salute the American flag. Normally, the court follows the principle of stare decisis — “to stand by what is decided.” It is not inclined to challenge its own precedents unless there is a compelling reason to do so. Reversing Bowers was certainly possible; the vote had been 5 to 4, after all, and issues regarding same-sex couples were now receiving sympathetic media attention. But a second defeat was also possible, with unknown conse­quences for gay rights.

Dale Carpenter’s “Flagrant Conduct” is a stirring and richly detailed account of Lawrence v. Texas, the momentous 2003 decision that . . .

Continue reading.

Written by LeisureGuy

18 March 2012 at 6:55 am

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