Flagrant Conduct

When the U.S. Supreme Court decided Lawrence v. Texas (539 U.S. 558 (2003)), overruling its 17-year-old precedent in Bowers v. Hardwick (478 U.S. 186 (1986)) and striking down a Texas law that criminalized private, same-sex intimacy between adults, the rainbow flag flying above San Francisco's Castro District was lowered for the first and only time - and replaced with a giant American flag. "Finally," said the flag's designer, Gilbert Baker, "we're Americans."

Moments like this recounted in the pages of Flagrant Conduct make it a powerful tale of the role of constitutional liberty in real people's lives. Author and University of Minnesota law professor Dale Carpenter - a libertarian who filed an amicus brief against the state in Lawrence - makes no secret of his sympathies, but his book is not a polemic. It is a detailed telling of the moving, and sometimes dark, story behind this century's first great civil rights case.

For example, Carpenter concludes that it's unlikely John Geddes Lawrence and Tyron Garner, arrested in a Houston apartment in September 1998, were actually engaged in illegal sodomy. The cops' recollections reveal that, innocently or otherwise, the version of events told in the arrest report never happened. Thus sodomy laws were abolished by a case in which apparently no sodomy occurred. But this is not really so ironic. Laws against "victimless" social crimes are especially prone to official manipulation - an invitation to perjury, blackmail, biased and sporadic enforcement, and spying. They have always been used to brutalize gays and lesbians and to exclude them from jobs, housing, legal adoption, and public office, on the grounds that they were presumptive criminals.

Similar abuses were what led to the American founders' greatest single political innovation: the separation of society and government. Social controversies are too complex to be judged by the state; they must be addressed case by case, by deliberation, gradual persuasion, and private enterprise. Only crimes - the actual violation of individual rights - are the law's proper objects.

For the founders, obviously, the issue was not gay rights but religious liberty. Nevertheless, analogous concerns motivated Thomas Jefferson to draft his Statute for Religious Freedom in 1777. "The legitimate powers of government extend to such acts only as are injurious to others," he wrote. "But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." The same is true of what goes on in the bedroom. And the same argument was employed then as in 2003 for giving government control over private choices: society and the children would suffer by letting people make their own decisions. Ultimately, America pledged itself to religious freedom - and slowly came also to recognize that when it comes to making private sexual choices, it ain't nobody's business if you do.

Much of America, that is. In Texas, although heterosexual sodomy - and even bestiality - was legal, hostility to gays reached such extremes that homosexuals faced jail time for making love. Texas also permitted gays to adopt, obliterating the state's argument that criminalization of homosexual sex was needed to promote child-rearing. Nor did the law's defenders have much credibility in appealing to the sanctity of marriage. In 2007, four years after losing Lawrence, District Attorney Charles Rosenthal resigned amid scandals involving drugs, misuse of government property, and an extramarital affair with his secretary. Carpenter notes that "after his resignation, ironically, he pleaded for the media to respect his 'privacy.' " Flagrant Conduct tells a vivid, surprising, often moving story about the struggle many Americans were forced to endure in order to obtain respect for their own privacy.

Timothy Sandefur is an adjunct scholar at the Cato Institute and author of The Right to Earn a Living (2010).

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