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U law professor traces roots of same-sex marriage debate

A new book by Dale Carpenter examines an important Supreme Court decision striking down nation’s sodomy laws.

Dale Carpenter
Photo by Tim RummelhoffDale Carpenter

As voters consider amending Minnesota’s constitution to define marriage as exclusively a heterosexual right, a University of Minnesota constitutional law professor dives into the U.S. Supreme Court case that led the nation to the doorstep of the issue of same-sex marriage in a just-released book.

For Dale Carpenter, a Republican who is active in trying to defeat the marriage amendment, the high court’s decision in 2003 to strike down the nation’s sodomy laws was the end of a story full of characters and legal drama. In his critically praised book, “Flagrant Conduct, The Story of Lawrence v. Texas,” Carpenter explains a perfect case with a serious flaw and one of the most important Supreme Court decisions in 50 years.  

In 1998, Houston police arrested John Lawrence and Tyrone Garner for having consensual sex in a private home, a crime under Texas law.

“Those are the most sympathetic gay rights cases,” Carpenter said. “It was like a strike of lighting – the best possible scenario in which to bring a case.”

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Carpenter discovered the weaknesses of the case in eight years of research and writing as he developed the book from what started as a law review article.

“The men were not actually having sex,” he said. “They were not a loving couple arrested in their home. The circumstance involved a false report to police.”

The police officers, as interviewed in the book, disagreed as to what they had witnessed. Carpenter writes that the defendants’ lawyers knew that fact and had to proceed delicately so the case would not look like a set-up. 

Their legal finesse moved the case successfully from one judicial level to the next.  The lawyers had as their advantage the fact the police initiated the case with an arrest. Then, rather than dispute what the police observed, the defendants did not contest the claim so they could test the constitutionality of the law. Finally, because the defendants were arrested, they could eventually demonstrate that had actually been injured by an unconstitutional law.

High-wire act

Carpenter describes the incremental moves toward the U.S. Supreme Court as a high-wire act. “The main fear was that if litigation were not successful it would reinforce a bad precedent,” an earlier Supreme Court decision upholding a sodomy law in Georgia, he said. “And it would be used politically against gay men and lesbians. And when would you get this kind of chance again?”

Plus, the legal team had to avoid what Carpenter calls the “M” word. “When you make an argument, you don’t want to instill fear in the justices that if they strike down the sodomy law, the next thing they must do is uphold same-sex marriage claims,” he said.

Defense lawyers had to convince the high court that Americans supported the right to privacy when it involved their intimate lives and that the justices would be following not leading the nation.

But the decision, according to Carpenter, did remove “a huge judicial obstacle on the road to gay marriage. It described what’s at stake in the case as being about relationships.”

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Carpenter explains in the book how Justice Antonin Scalia’s dissenting opinion actually underscored the argument by asking: If we decide people have the right to intimate relationships, how can we deny them the right to marry?

“In some ways, he wrote the first draft of the brief in favor of gay marriage,” Carpenter said.

Carpenter said he believes that Lawrence v. Texas is as far as Americans are going to go at this time in accepting gay and lesbian relationships. 

“People believe that while gays and lesbians have the right to privacy in their personal lives, they believe that marriage is not simply the matter of one’s intimate life, it is the basis of the family structure and they believe that keeping gay couples from getting married is important to preserving families,” he said.

Shift in opinion

But public opinion is taking some major shifts, he added. “I think if this referendum [the Minnesota marriage amendment] were held in 10 years, there is no question that the amendment would be defeated. We are right on the cusp.”

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As a board member of Minnesotans United for All Families, the coalition that is fighting the marriage amendment, Carpenter offers this interpretation: “No Minnesota family benefits from passing this amendment. No marriage is made stronger, no families are made better but some families are made weaker. They are left in a constitutional disadvantage. As a Republican, I would also say that there is nothing in this amendment that advances individual liberty or limited government.”  

Still, for defenders of the constitutional rights and the rights of gays and lesbians, Carpenter makes it clear in “Flagrant Conduct” that Lawrence v. Texas advanced the cause in one giant step. “This case dismantles the basis for discrimination across the law,” he said.

He referred to the final interview he had with defendant John Lawrence in Houston, just five month before his death. “Lawrence wanted this clear. It was a bad law being enforced in a capricious and unjust way,” Carpenter said.