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Marriage Litigation Strategy: From John Lawrence to Kristin Perry

BY ARI EZRA WALDMAN

FlagrantconductWith certain gay media outlets fanning its flames, a false fracas is unfolding about Lawrence v. Texas. It is creating an issue out of nothing and, as a result, it is obscuring the undisputed good work done by Lambda Legal, the American Foundation for Equal Rights (AFER), and other legal organizations to win our rights through impact litigation. 

The excellent Dahlia Lithwick takes to The New Yorker to review Professor Dale Carpenter's new book, Flagrant Conduct, which tells the sometimes-dramatic, sometimes-licentious, sometimes-mind numbingly arcane saga that precipitated the seminal decision in Lawrence v. Texas, a foundational case for every civil rights victory we will ever win. But, Ms. Lithwick took a scholarly book and learned the wrong lesson.

Professor Carpenter tells a story that most people do not know: about how the story started with four men drinking in an apartment, how policemen stormed into Lawrence's apartment looking for a gun but found none, how the worst thing the police saw was a lewd picture of James Dean, how Lawrence insisted on his innocence but pleaded "no contest" to challenge the anti-sodomy law, and how the men were poor, drunk, sometimes homeless, and probably not in love. But, although interesting, the particular personal histories of John Lawrence and Tyron Garner are irrelevant: Lawrence will always be a story about love because even if Lawrence didn't love Garner, their case legitimized gay love in the eyes of the law.

Ms. Lithwick also seems to imply that a lawyer's strategy to make the most effective arguments possible borders on deception or, in some way, makes the ultimate victory less wholesome. That is surprising coming from a lawyer, who should know that every case -- from one that challenges a ban on marriage recognition for gays to one that seeks $500 in medical expenses for a slip-and-fall -- has the same strategy: win.

Finally, she also misunderstands what gay rights cases are really all about. As I have argued many times, the traditional libertarian meme, "Get the government off our backs," will only get us so far. Texas may have had no business in Lawrence's bedroom that night in 1998, but our quest for the freedoms of intimacy, identity expression, and marriage is not a yearning for a small government that lets us do whatever we want behind closed doors; rather, it is a quest for social inclusion, societal honor, and the moral worth of a gay life's love.

CONTINUED, AFTER THE JUMP...

Lawrence_garnerIt is no secret that John Lawrence and Tyron Garner were not dating. Nor was it ever a secret that Mssrs. Lawrence and Garner had checkered pasts, including arrests and histories of drunkenness. To this day, none of us are sure what happened: two of the four officers called in thought they saw sex, but each remembered a different type of sex, and three officers remembered a lewd picture of James Dean on the wall. 

In his book, Professor Carpenter starts from these undisputed facts and wonders: if the plaintiffs weren't in love and may not have even had sex, how did their case turn into one about sodomy and intimate relationships? There were a number of factors: victims of anti-sodomy laws were hard to come by, so it was difficult to find pristine plaintiffs; the sheer luck that a gay courthouse worker flagged the sodomy arrest and chatted about it until it got back to a gay activist with legal connections; and, the slowly changing popular view of gay persons. Professor Carpenter discusses the role each played.

But, as Ms. Lithwick describes in her review, the most important factor was Lambda Legal, caricatured as sweeping in to Lawrence's defense like Tabatha Coffey turning a grungy outhouse into a Beverly Hills' salon: this "imperfect test case could be made over into something more than serviceable." Ms. Lithwick goes on:

Lawrence and Garner understood that they were being asked to keep the dirty secret that there was no dirty secret. 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 [Texas] apartment decorated with bad James Dean erotica.

The suggestion that this case had to "made over" in order to succeed implies that Lambda Legal was performing some kind of morally-suspect deception, creating an issue where none might have existed and whitewashing its clients into the hearts of history. To succeed, Lawrence required a "litigation strategy ... [that] was deliberately framed to highlight the need to decriminalize homosexual conduct as a means of recognizing and legitimizing same-sex 'relationships' and 'families.'" Ms. Lithwick's use of quotes around the words "relationship" and "families" suggests that the disconnect between the Lawrence/Garner reality and Lambda Legal's story reeked of deception. After all, Tabatha Coffey can put a nice coat of paint on a poorly run business and, at the end of the day, all you have is a shiny, poorly run business about to fail. 

My response to Ms. Lithwick: You're missing the point.

Lambda Legal took a case that needed to go to the Supreme Court: the continued acceptance of criminal anti-sodomy laws under Bowers v. Hardwick gave legitimacy to every piece of anti-gay legislation and every instance of anti-gay discrimination. It needed to go. And, Lambda attorneys crafted the best legal strategy to win: they chose the right lawyer, they told the right story, and argued the right cases to appeal to swing Justices. And, this is what every lawyer does if he wants to win. Law students learn to frame the facts in such a way that favors your client; you are, after all, telling a story. So, tell your story, because if the judge believes your story, your conclusions follow. That is why every brief starts with a facts section -- the sides are arguing about what really happened, what the case is really about. As Kevin Cathcart, Executive Director of Lambda Legal, noted in The Huffington Post, "[t]he issue in Lawrence v. Texas was not about what was going on in John Lawrence's bedroom, but rather about the conduct of the government and the unconstitutionality of the law that authorized its actions." To conclude anything else is to miss the forest for the trees.

So what if Lawrence and Garner weren't in love? The law at issue criminalized every gay person who was in love. So what if Lawrence and Garner hadn't actually had sex that night? The law at issue made criminals out of every gay person who wanted to express his or her love. So what if Lawrence and Garner weren't perfect characters? The lawyer's job is to make every client into the perfect one.

Impact litigation seeking civil rights is always about more than a given case's plaintiffs -- just ask Kristin Perry and Sandra Stier, and Paul Katami and Jeff Zarrillo, the plaintiffs in Perry v. Brown. These four individuals, though brave and selfless for putting themselves in this position, are not perfect, nor do they have to be. But, their legal story is just as much about love as Lawrence's and Garner's was not because they are actually in love, but because the goal they seek -- marriage recognition -- is about love and family. The real deception, then, would be to couch our fight for marriage recognition in any language other than love.

*** 

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. I didn't have a problem with the way the New Yorker review went about things. I'm a 1L and while I was reading it just kept thinking what a brilliant use of persuasive writing and framing Lambda did. I thought it made the whole case even more impressive.

    Posted by: matt | Mar 8, 2012 8:58:21 PM


  2. "So what if Lawrence and Garner weren't in love? The law at issue criminalized every gay person who was in love."

    Actually, I think you miss the point here. The law criminalized sodomy, not love. Yes, those in love were flouting the law too, but it was sodomy that was illegal, not love. The law made no distinction between anonymous sex in a restroom and long term emotional relationships in the privacy of one's own bedroom. Bowers was all about sodomy. But it was overturned by a law that was about "relationships" and "intimacy." And curiously, the plaintiffs were not a long term intimate loving couple.

    And it's precisely because of the inclusion arguments that this argument can be problematic, because SOME kinds of "relationships" are not going to make the bar of inclusion and will still be stigmatized.

    Let's say, just to give a random example that is never discussed on towleroad, sex with a stranger in a park.

    Posted by: KevinVT | Mar 8, 2012 9:14:02 PM


  3. "The law at issue made criminals out of every gay person who wanted to express his or her love." That one sentence for me sums it up quite nicely. Thanks @Ari once again for the great analysis.

    Posted by: MikeH | Mar 8, 2012 9:40:53 PM


  4. @KEVINVT:
    I get the first few statements in your comment, but I'm slightly confused on where the rest of it is going.

    After your comment on there being no distinction between sex in a restroom and a bedroom in Tex. Penal Code Ann. § 21.06(a) (2003), you seem to begin discussing general social stigma to public sex rather than the legal impact of Lawrence. Are you saying that since Lawrence was framed in terms of private intimacy, acts such as sex in a park would still be criminalized?

    If so, I'd posit that they would still be criminalized under public lewdness statutes (in the same way straight people having sex in a park would be), but the "crimes against nature" (sodomy) statutes would no longer apply. Were you getting at a more general point of criminalizing sex in general?

    Posted by: matt | Mar 8, 2012 9:41:50 PM


  5. This post is hard to square with other posts you've made criticizing lawyers for gay bi-national couples seeking to ask prosecutorial discretion in cancelling deportations. In those posts you argued that prosecutorial discretion to not follow law was a dangerous thing, and seemed to forget "that every case -- ... -- has the same strategy: win."

    It seems to me like you're just setting up a straw-man with the New Yorker's critique to have something to knock down (kind of how you set up the straw-man in criticizing the strategy of the bi-national couples' lawyers). I ask you: what's the point of that?

    There are so many very interesting issues going on right now in the law that affect the LGBT community, that it seems silly and a waste of time to find positions to have fake arguments about or with.

    Just a thought.

    Posted by: Jorge | Mar 8, 2012 10:07:18 PM



  6. @jorge: with respect, I disagree. If you reread my posts re binational couples, I had no qualms with the arguments the lawyers were making. In fact, I said again and again that a lawyer has to make the best argument he can under the current law. In the immigration/green card context, I was criticizing the legal context that left so much power in the discretionary hands on the judges, prosecutors, etc. I was not at all criticizing the lawyers.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Mar 8, 2012 10:24:35 PM


  7. Great article, thanks again, as usual. I'm looking forward to reading this book.

    Posted by: Abel | Mar 8, 2012 10:37:06 PM


  8. Why not find a little serenity?
    That's sorely what a lot of the world is missing. If people were more centered and peaceful within themselves, there'd be a lot less hate and whole lot more love.
    I'm passing this on 'cause it has made a huge difference for lots of people. When you meditate, you find peace and answers.
    “Meditation in 5 Days” is a really effective course that gives you surprising results within five days. Intended both for people who do not currently practice meditation and for people who want to improve their skills and experience several forms of meditation. The course’s innovative approach allows each person to master meditation quickly and easily while achieving long-lasting results.
    http://meditation-in-5-days.com
    Find a little love and compassion and pass some goodness on. That is how we can all change the world!

    Posted by: AP | Mar 8, 2012 10:40:22 PM


  9. Lithwick seems completely unfazed by the fact that FOUR police entered an apartment in which no crime was taking place or had taken place and still managed to arrest the two men.

    THAT is what prejudice and oppression are.

    Posted by: BobN | Mar 8, 2012 10:42:26 PM


  10. When a link to the New Yorker piece was posted here earlier in the week as part of a day's end news wrap-up, several people reacted negatively to it while I didn't see it that way at all.

    It took a lot of what I *thought* I knew about the case, that a spiteful and homophobic neighbor made a false police report about a gay couple and they were arrested when the police broke into the apartment and discovered them having sex, and turned all of it on its head. It's unlikely anyone was having sex, there WAS a couple there but it was one of THEM who called in the false police report, possibly out of jealousy. etc.

    I also didn't feel the lawyers were accused of dishonesty but were given credit for their ingenuity, taking a sow's ear of a case and turning it into a silk purse of Constitutional law. Frankly, if the men arrested had been clean-living paragons of gay fidelity it might have been more satisfying in some vague way, but that none of that was true, that they weren't even having sex at all, just highlights the brilliance of the legal team.

    Even though the laws regarding "sodomy" were on the books they were rarely enforced. Were there other arrests we didn't know about? (That was before the internet was so pervasive so it could have happened and you'd never know.) But even if they were for the most part unenforced those laws hung over the head of every gay person, men especially, like Damocles sword. Just because they weren't being enforced didn't mean they couldn't be at some point. The law had to go but they needed a case to use as the vehicle for that challenge and along came Lawrence and Garner, imperfect as they were, and a charge their lawyer should probably could have just gotten dismissed. It's one of the ironies of this case that the cops involved were probably angry they'd been called into a possible gun fight and it turned out to be nothing but a lovers' quarrel, complete with a "dirty" picture of James Dean. Lawrence talked back and they might have deliberately made up some things to cause him legal problems and as a consequence ended sodomy laws in the US.

    But they were arrested in a private apartment and any sex that might have occurred was between consenting adults, so in that respect the case was perfect.

    Does it really matter that Lawrence and Garner weren't ideal civil rights icons whose pictures were suitable for framing next to Martin Luther King? Not really, and anyway it turns out MLK wasn't always a saint himself. Few men are. (And even "few" is giving mankind the benefit of the doubt.)

    It really just highlights the ingenuity and brilliance of the legal team behind the challenge. The lawyers aren't the ones who charged Lawrence and Garner with "sodomy," it was the police and great state of Texas that did that, they just rode that shaky case all the way to the Supreme Court and changed the laws for gay people across the whole whole country, so for that they're to be congratulated.

    Posted by: Caliban | Mar 8, 2012 10:45:50 PM


  11. I completely agree with Caliban. Lithwick's article in no way was denigrating the importance of the Lawrence v. Texas decision and its impact on the gay community. She was merely showing how unlikely Plaintiffs, who do not fit the mold of who we thought they were (and likely who the Supreme Court thought they were), ultimately won a major civil rights victory. I for one, found the article fascinating!

    Posted by: JPinWeHo | Mar 8, 2012 10:57:32 PM


  12. Ms. Lithwick isn't the only one who is missing the point. Americans are still being arrested for crimes against nature.

    In Raleigh in 2008, a gay couple was arrested after a domestic disturbance and charged with a "crime against nature." The prosecutor admitted that the charge wouldn't stand under Lawrence, but he just needed to arrest the couple to get them off the street for a few hours while he determined what to do with them. Nothing like that would have happened to a straight couple.

    If the police can simply arrest us on an unconstitutional law, and hold us until they can find something to do with us (or until they've had their laugh for the night), there's room for abuse there.

    The only article that I can find right now is pretty bland, but I was in school then, and I remember reading some more detailed articles, including one that named the gay couple as if they were criminals.

    Article:
    http://bit.ly/xhMh0E

    Posted by: Steven | Mar 8, 2012 11:17:57 PM



  13. Dont get me wrong. I though Ms Lithwicks article was great! I just disagree with how she chose to highlight Carpenters book.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Mar 8, 2012 11:21:48 PM


  14. I thought the most damning part of Lithwick's review was the last paragraph that said Lambda was "unable" to raise the funds to bury Garner. What does that even mean? I mean, they must spend more than whatever a burial would have cost on appetizers for their fundraisers each year.

    Posted by: Q | Mar 8, 2012 11:28:59 PM


  15. Ari, you really seem to making two completely opposing arguments. Here you say the facts don't matter, which they don't. Bad facts make bad law, and yes, really every gay person was on trial not just Lawrence and Geddes. (And I would argue Lawrence is bad law because it's a due process/privacy issue rather than Equal Protection). But equally you cannot say that the Perry plaintiffs' stories matter when Lawrence and Geddes don't because Perry is also not a case about individual stories; it is a case about every gay person in the US. Yes, the Perry plaintiffs are brave and all that, but the only meaningful difference between them and Lawrence and Geddes is that the Perry plaintiffs chose this litigation while it was forced upon Lawrence and Geddes.

    Posted by: Sol Muser | Mar 9, 2012 12:21:51 AM


  16. Gay sex was decriminalized in Canada, I think in 1967. The case which brought it to national attention was from a man caught in consensual sex with another man. It was not his first conviction and when he came to trial and was convicted, the judge sentenced him to an indefinite term of imprisonment.
    The judge said later he did so because he thought the man would get 'therapy' to cure his deviation. This was in the early 60's and before the APA stopped classifying homosexuality as a deviant behaviour.
    Pierre Trudeau, then Mike Pearson's justice minister, introduced legislation in the house decriminalizing homosexual behaviour. Michael O'Malley, the a CBC reporter asked Trudeau if that meant he didn't believe government belonged in the bedrooms of the nation. Trudeau took the phrase and ran with it. It is largely credited to him to this day.

    Posted by: Chris | Mar 9, 2012 1:43:07 AM


  17. I disagree on two points.

    First, "It is no secret that John Lawrence and Tyron Garner...". These are weasel words. Of course it's not a secret. But I don't think many people know, as you yourself point out elsewhere. This landmark case doesn't lend itself to the Pitt and Clooney treatment.

    Second, "The real deception, then, would be to couch our fight for marriage recognition in any language other than love." Except that Lawrence should not have been about love. We ought to be able to win a case based on sex, not because loving people also have sex, but because sex is important. Making love a requirement to argue our cases is dangerous.

    Posted by: Randy | Mar 9, 2012 3:56:44 AM


  18. "Ms. Lithwick also seems to imply that a lawyer's strategy to make the most effective arguments possible borders on deception or, in some way, makes the ultimate victory less wholesome. That is surprising coming from a lawyer, who should know that every case -- from one that challenges a ban on marriage recognition for gays to one that seeks $500 in medical expenses for a slip-and-fall -- has the same strategy: win."

    This is why there are some people who go through college and law school only to change career direction later. They discover that practicing law is really about finding ways AROUND the law, which yes, in some cases can border on deception.

    Posted by: Oliver | Mar 9, 2012 4:14:12 AM


  19. Lambda did not create the false story that there was sex going on, the police did that.

    Posted by: J. Leo | Mar 9, 2012 8:10:06 AM


  20. Bizarre that Lambda had to latch on to a most atypical "sodomy" case just to have standing in challenging a law but in California, a totally unaffected (hate) group is granted standing defending Prop-8.

    Is it usually easier to be granted standing for defense or is this one of those straight benefits?

    Posted by: galore | Mar 9, 2012 8:15:01 AM


  21. It's always important to remember that Rosa Parks wasn't just some black lady who got on a bus.

    Good cases are where you find them.

    Posted by: K in VA | Mar 9, 2012 9:14:21 AM


  22. It doesn't matter whether or not they were engaging in the act for which they were arrested. What matters was that they were arrested in the first place. Lambda's role wasn't to show whether the men were innocent or guilty of the act itself, but rather to show that the statute under which they had been arrested was unconstitutional. Whether they committed sodomy or not is irrelevant. The only thing relevant is that it's what they were arrested for.

    Posted by: Kevin_BGFH | Mar 9, 2012 1:09:00 PM


  23. While I don't agree with everything you wrote, Ari, I must say it's some of the best writing I've read here. Perhaps Lithwick used some descriptive language in order to make the book sound a little more...colorful? (As if it need that.) I haven't read the book, nor the entire NY article, but who was the "caricaturist"? Carpenter - or was it Lithwick colorizing what Carpenter wrote? Unclear.

    I was unaware that Lawrence and Garner being in or out of love was even an issue. Is the point that, due to the resonance of the outcome of the case, they've been "hero-ized" and the record needs to be set straight? Because I never saw them that way.

    And btw, I don't remember hearing about any law against love - in any country. Ever. But legislation can - and does - have the potential to weaken or strengthen it.

    Posted by: TomJck | Mar 9, 2012 4:30:55 PM


  24. I didn't see much value in the Dahlia Lithwick story. The story was interesting, and provided alot of information I didn't know. But after reading I couldn't help but think what was the point? How well LAMDA did at pulling off a case with such imperfectly perfect clients? Why certain details of about the clients and the circumstances of the Lawrence case are not more widely known?

    IMO what is more notable is not a legal win in spite of the clients, but a legal win with the clients. The character of the clients were not grounds enough to ruin the case. That speaks to the effective lambda team, but also, the absurdity of the antiquated sodomy laws. Salacious details of the client's character and circumstances paled when laid against the outrageous sodomy status. That's how such details can be lost, as Lithwick inquired.

    At least this article in The New Yorker was okay, the one last week by Frank Rich was totally obtuse.

    Posted by: anony6 | Mar 9, 2012 7:46:21 PM


  25. Your piece here was fun to read. Thank you, Ari. But so was the lithwick lady's. Although it's you who embraces the often frowned-on win-as-an-ethic, the lithwick lady was the one who came across to me as having questionable moral and ethical intent. In addition to the subtle observations you note, I was as struck by the way she unflinchingly talks about scalia's "warning" without putting THAT in quotes, but simultaneously puts gay people's relatinships in quotes as if they are not worthy.

    Even though she wrote to appear not personally morally repulsive, from her tone struck me as salacious. And written for raw provocation and attention, as Ann Coulter might condone. Her article, however apparently harmless, seemed to lack a conscience, and seemed content with the likes of Coulter using it for oppressive, hateful ends.

    That's my take anyway. I kinda wish I had seen her article first, though, so that I'd have no doubt that my take is not o'er-colored by yours, ha.

    Posted by: Just_a_guy | Mar 10, 2012 12:38:12 PM


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