Lawrence v. Texas: The Right to Privacy
- daholleyauthor
- Jan 14
- 11 min read
Manhattan, New York. 1969.
It is on June 28th that we find ourselves in a mafia run bar in the heart of Greenwich Village. The bar's patrons are mostly queer men and lesbians. A doorman allows what are then referred to as drag queens or transvestites into the Stonewall Inn sporadically, and most of them are dressed in what is referred to as Scare Drag. Homosexual activity is heavily criminalized in New York City, and this is in line with a broader pattern of discriminatory laws targeted explicitly at the behavior of queer men and transwomen, for whom no distinction in status is made. It is here that the powder keg finally blows.
The result? Three days of violence abruptly followed by the formation of among the most successful social justice movements in American history...one that refuses to apologize for what it is.
Most people in the LGBTQIA+ community (more commonly referred to by the acronym LGBT) have at least some awareness of what led to the riots, how they started, and what happened after them. We're not here to take a deep dive into this event, but two things must be taken from this era, and this place, in order to frame the conversation being had here. Targeted, often violent discrimination was the norm for queer and trans people, and both groups were effectively criminalized as a matter of their being who they were.
Why was the epicenter of queer resistance a mafia run bar?
At the time, New York City outlawed serving alcohol to homosexuals. A bar caught doing so could lose its license to operate. Crossdressing was also outlawed, and to circumvent the law, transvestites were required to be wearing at least three articles of clothing that corresponded with their sex as assigned at birth. In every one of the fifty states across the nation, it was illegal at some point to engage in anal sex. In at least fourteen states, those laws were specifically targeted at same sex couples. Access to contraception was also banned by law, making a notable exception for married couples. An exception that will come into play later.
This pattern of discrimination created an environment in which passing as a heterosexual was often the difference between gainful employment and joblessness, access to housing and homelessness, economic mobility and extreme poverty. Masculine queer men and feminine queer women often settled into sham marriages with unsuspecting straight people, known respectively as beards and merkins, in order to spare themselves from complicated fates either living on the streets, or being institutionalized in state hospitals where they would be subject to torture in the name of medicine, up to and including protracted episodes of rape.
The mafia ran the gay bars in New York City because a legitimate business could not hope to satisfy the demand for agoras for the community without losing their licenses. These bars became safe havens for queer people, many of whom were unhoused and doing sex work to make their money. A culture of police raids on these establishments created a hostile environment in which transwomen and butch lesbians were frequently arrested for crossdressing, bribes were paid by the bars to get the cops out of their hair, and life went on. What was and is the inalienable truth is that even as other marginalized communities were making progress in their own struggles for equality, dignity and respect, the LGBTQIA+ community was and is frequently left behind, as laws and policies routinely leave us out of protections from discrimination, and specifically target us for it.
Look no further than Meta's recent policy shift for evidence the trend continues. While their new hate speech policy continues to protect other groups from certain kinds of targeted harassment, it specifically refuses to include queer and trans people, citing debate around the validity of our lives, and our behavior.
Are we normal?
The American Psychological Association believes so. But what do they know? It's not like they're scientists, or researchers with decades of data on the subject all pointing to the same conclusion or anything. No, we better listen to your Uncle Butch, who thinks God(TM) hates fags, and we're all going to hell for our sins. If you haven't picked up on it, this is sarcasm.
What does any of this have to do with Lawrence v. Texas? Well...to understand that, we have to look at the framework the case was built on, which also informed Obergfell v. Hodge, Loving v. Virginia, and Roe v. Wade. The central questions? Do people have a right to privacy in their own homes, and regarding personal choices? And, can a law explicitly target one group of people, while leaving all others out of the equation?
You see, Texas had a problem. They stepped in the shit with their anti-sodomy law. And LAMBDA Legal had time that day.
Jealousy, Anal Sex and Lies: You Just Can't Please Everybody
The year is 1998. Houston police receive a call regarding one John Geddes Lawrence and Tyron Garner claiming a black man is going crazy with a gun in Lawrence's apartment. The man who made the call is one Robert Eubanks, who John Lawrence has been hosting for drinks together with his on again off again boyfriend, Tyron Garner.
Eubanks is jealous of what he believes is flirtatious behavior between Lawrence and Garner, and phones in the report under false pretenses in what could be described as an act of revenge. Lawrence and Eubanks have been friends for twenty years, adding an extra layer of mess to all of these happenings. The report results in police entering the apartment without a warrant, coming in through a door left ajar by Eubanks when he left to make the false report.
You might be assuming, at this point, that the police walked into a bedroom and saw two men having wild gay sex and flagrantly disregarding the police officer's orders to stop until whichever of them was topping had soundly filled the bottom with hot, sticky cum. After all, that's what they reported.
You would be wrong.
As one Dale Carpenter would later discover when he looked into this case for his book, Flagrant Conduct: The Story of Lawrence v. Texas, the two men involved never actually had sex. By his telling, they were in the living room watching a TV show. Lawrence was in his underwear, and Tyron was shirtless, but neither man was where the police report would later state they were, nor was either of them engaged in any form of sex act with the other. Eubanks' false report of violence and gun possession would lead directly to the police filing a false report in order to justify arresting two gay men, setting off a chain of events that would eventually bring these men, represented by lawyers at LAMBDA Legal, all the way to the Supreme Court.
I should note here that the accounts of Deputies Joseph Quinn and William Lily were inconsistent with each other, and as the case progressed, their recollections of events would only get worse. Initially, Quinn would report he saw the two engaged in anal sex in Lawrence's bedroom, and that they kept going when he told them to stop. Lily, on the other hand, would report he saw them swapping head, then later retract that statement in favor of saying he didn't remember what he saw. Oral and anal sex between same sex adults were both outlawed in Texas, but the framing of the law that gave legal heft to LAMBDA Legal's arguments was that neither variety of sexual contact was prohibited for opposite sex people.
So what happened in Lawrence's apartment on the night of September 17, 1998? Some queer men were having drinks in one of their apartments. One got jealous because he thought his longtime friend was flirting with a guy he'd been dating sporadically for eight years and lied to the police about a domestic disturbance. The police showed up, realized they were dealing with gay men, and fabricated charges against them as a pretense to make arrests. In supporting their claims, they then lied repeatedly and under oath about what they saw in order to justify their blatant homophobia.
The Law and Her Many Tentacles
At this point, Bowers v. Hardwick was the backbone that supported laws criminalizing same sex sexual activity. To keep things brief, the decision in that case established that there was no basis in the constitution or the then current law justifying a right to gay sex. The amendments the challenges to this ruling would hinge on were the 9th and 14th Amendments, which respectively grant rights not given by the constitution to government to the people, and preserve the rights of people to equal treatment under the law. Those 14th Amendment protections are further expanded on and enshrined in the Civil Rights Act of 1964, which excluded language protecting queer and trans people until the definition of "sex" was expanded to include us in another Supreme Court case, Bostock v. Clayton County, in 2020.
LAMBDA Legal, in Lawrence v. Texas, relied on the 14th Amendment to do the heavy lifting in their argument, stating that the Texas sodomy law violated both the defendant's rights to equal protection and due process, as the alleged acts transpired in the privacy of the home and between two consenting adults, and the law did not criminalize the same behavior between consenting adults of opposite sex.
Several amicus briefs were also submitted to bolster the case which highlighted international norms in the legal protection of queer men and women where it pertained to their behavior, and making the argument that laws criminalizing gay sex were outdated, especially as attitudes toward the LBGT community had largely shifted since Bowers was decided. They also argued that these laws were rarely and selectively enforced, and that many states had rolled back their anti-sodomy laws.
Justice Anthony Kennedy delivered the deciding opinion, and Justice Sandra Day O'Connor (a Reagan appointee) delivered a concurring opinion. However, the bases for their opinions differed such that while Kennedy rejected the basis of Bowers and threw it out wholesale, O'Connor sought to uphold the validity of Bowers while relying on a different framework to overturn the relevant laws.
O'Connor argued that while laws designed to prevent "deviant sexual behavior" were not inherently unconstitutional, the Texas law violated the due process clause of the 14th Amendment by specifically targeting same sex couples. Had her opinion been the binding one, sodomy laws would not have been overturned in every state, but bans would have been placed on those laws that specifically targeted same sex couples. This would have left the door open to discrimination insofar as the laws were rewritten to describe anal and oral sex between adults as illegal.
This reminds me of something I encountered in Alabama when I lived there. In Mobile, at least (I cannot speak for the rest of the state), the county stopped granting marriage licenses in person. This decision was motivated by the Supreme Court decision in Obergfell v. Hodge which overturned bans on same sex marriage using the same legal argument that decided the case in Lawrence v. Texas. In order to preserve their staff's right to discriminate on the basis of religious liberty, they moved to stop granting marriage certificates for heterosexual couples as well, rather than begin delivering them to queer couples, as they would otherwise have been required to do. This is one of those things that tends to happen when cases like this leave a backdoor open to justify discrimination. The intent in Mobile, Alabama (which bills itself as the Gayest City in Alabama on their website) is obviously to prevent same sex couples from obtaining these certificates as easily as their different sex peers, but in practice, their refusal to deliver them to any couple regardless of orientation provides legal justification to the idea their policies are not inherently biased.
Had Sandra Day O'Connor's opinion been adopted by the court, our political landscape would be very different; however, Anthony Kennedy's opinion remains the lay of the law, and the concluding paragraphs of the decision are, perhaps, the most insightful piece of his rather long winded takedown of these laws.
"The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, Supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment known the components of liberty in its manifold possibilities, they may have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
The case was decided 6-3 in favor of overturning sodomy laws, but sexual behavior, while being the core issue of the case, is not all it expresses support for. Rather, it is the right to privacy in your home, and freedom to make decisions for yourself about the nature of your life and your interpersonal decisions that was being litigated. If we, as people, cannot freely choose how we engage with life, who we associate ourselves with, and what we do with our bodies, we are not free. If we do not have a right to make discrete decisions for ourselves without the government stepping in to tell us what to do, then liberty and justice are a farce, and we cannot be a free people. What cases like Lawrence, and Loving, and Obergfell, and yes, even Roe v. Wade have done is establish that we have a right to self-determination, and that right is critical to our way of life in a free nation, regardless of who we are or where we came from, the color of our skin or who we love.
It is telling that Antonin Scalia's dissenting opinion in this case compares those of us who have the capacity to love others of the same sex to people who engage in harmful behaviors like bestiality, incest and pedophilia, and it is for that reason I will not get into his opinion here. But in Lawrence v. Texas, we see how far the hateful are willing to go in support of a harmful, discriminatory ideology with the power to destroy lives, and only to destroy them. What never fails to amaze me, which is always unsurprising, is that for all the hateful claim they will be unfairly impacted by these decisions, they never do suffer any injury or injustice from marginalized groups obtaining rights. How could they suffer any such injury, when these matters are inherently private? When they revolve around the personal lives of individuals whose homes they will never renter, with whom they do not commonly interact.
Hope won out in Lawrence v. Texas. Justice prevailed for John Lawrence and Tyron Garner. And as for Robert Eubanks, while what he did could have ended in the death or severe injury of Tyron Garner, as we have seen in so many interactions between men of color and the police, particularly in the south, I cannot say he got what he deserved. Jail time would have been appropriate for filing that report, but what happened to him is far more disturbing. While these proceedings were making their way through the courts in the year 2000, Eubanks was beaten to death. Though there are sure to be many theories about who did it, and plenty of people had a motive, including those two officers who responded to his call, the case remains another act of violence against a gay man that was never resolved. We don't know who killed him, and the case has long gone cold.
What we do know is that sodomy laws are banned across these United States, and our right to privacy and dignity remains the letter of the law. But it is important that we continue to defend this and other judgments pertaining to our lives and liberties, as a conservative court signals openness to revisiting this and other cases. My one and only request of you in this matter is to talk to those around you about what these cases actually did, and how they stand to benefit from upholding these decisions. Because as we enter into darker times, our strength remains in that we are in this together. Our power is in our ability to maintain our communities, and come together in times of need.
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