Dahlia Lithwick reviews Dale Carpenter’s new book about Lawrence v. Texas, Flagrant Conduct.

When Lawrence, who was born in 1943 to devout white Southern Baptists, was enlisting in the Navy, he quizzed a buddy about the forms he was filling out. “What’s a homosexual?” he wondered. Neither knew the word. Both were gay. After leaving the Navy, Lawrence moved to Houston, worked as a medical technician, and totted up a slew of drunk-driving violations, including a conviction for murder by automobile, in 1967. In the late seventies, he moved into a run-down complex in East Houston populated by underemployed youngsters and strippers who liked to party. Lawrence largely kept his sexual orientation a secret at work, and was anything but a gay-rights activist. Right to the end of the litigation bearing his name, Lawrence’s principal beef was that overzealous policemen had invaded his home without a warrant

Tyron Garner, the tenth child of black Baptist parents, was twenty-four years younger than Lawrence. He had no car and no fixed address, and supported himself by washing dishes and cleaning houses when he could. Described as “sweet” (despite three previous assault charges) and effeminate, Garner was involved in a stormy relationship with another white man from Houston, Robert Eubanks. And Eubanks, by all accounts, was a mess. Homeless and a heavy drinker, he was the person who called the police on September 17, 1998. Garner and Eubanks lived together wherever they could find an apartment, fighting viciously along the way. Garner and Lawrence, according to Carpenter’s research, were never much more than acquaintances. They weren’t lovers before the case or after.

That night in 1998, Lawrence, Garner, Eubanks, and probably a fourth man were all in Lawrence’s apartment. Lawrence and Eubanks were very drunk. Eubanks seems to have thought that Garner was being flirtatious with Lawrence, and fell into a jealous rage. He left the apartment, supposedly to get some soda, and called the police with a false story about his lover, Garner, brandishing a gun. There was never any dispute that the four policemen who responded to that call were entitled to enter the apartment to investigate, or that Lawrence began screaming furiously at the intruding officers, demanding to see a warrant and threatening to call his lawyer. There was sexually explicit art on the walls, notably a pencil drawing of a naked James Dean with oversized genitals. Eventually, Lawrence and Garner were charged with the crime of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man). . . .

Carpenter’s painstaking interviews establish that Garner and Lawrence not only weren’t having sex but were clothed (Lawrence was in his underwear, preparing for bed) and in separate rooms. This makes sense if you consider the timeline that night (Eubanks was ostensibly just slipping out to buy a soda) and the fact that there was yet another man still in the apartment. But the defendants’ accounts were never disclosed to the media. Nor was the existence of Lawrence’s longtime boyfriend, Jose Garcia. Requests by lawyers that the privacy of the two plaintiffs be respected meant that little attention was ever paid to their personal lives. Lawrence and Garner, for their part, were given strict instructions by the lawyers to shun the press. (Carpenter is careful throughout to show that none of the civil-rights lawyers lied or misrepresented the facts.) The litigation strategy, as the case made its way up through the trial courts and appeals courts, was deliberately framed to highlight the need to decriminalize homosexual conduct as a means of recognizing and legitimatizing same-sex “relationships” and “families.” In short, the legal issue was not that free societies must let drunken gay Texans have sex; it was that gay families around the country, in the words of one of the lawyers in the case, “are essentially just like everybody else.

…

At a press conference after the decision was announced, Lawrence read a brief prepared statement and Garner said nothing. Some advocates hoped that Garner might have a career as a gay-rights spokesman. After he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. The case is called Lawrence v. Texas. John Lawrence died last November. Almost no one took note. Garner died five years earlier, at the age of thirty-nine. When Lambda Legal proved unable to raise funds for a proper memorial or burial, Harris County cremated him and sent his ashes home to his family in a plastic bag. There was no funeral.

And this part is interesting:

That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

It’s amazing how the plaintiffs in such cases are seen as mere instruments.