In 1890 Louisiana passed a law requiring “equal but separate” train carriages for white and black passengers. The penalty for refusing to comply was a $25 fine or up to twenty days’ imprisonment. An “octoroon” (one-eighth black) named Homer Plessy sought to challenge the law: he entered a white carriage, and after refusing to leave he was evicted from the train and arrested. He argued that the statute violated the Fourteenth Amendment’s equal protection clause, taking the case all the way to the Supreme Court. In Plessy v. Ferguson (1896), the Court famously denied his claim and blessed the separate but equal doctrine, declaring, “If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.” Fifty-eight years later, the Court reversed itself and overruled Plessy. In Brown v. Board of Education, the Court concluded that separate facilities for whites and blacks are inherently unequal.
A parallel pair of decisions bookends the struggle for gay civil rights in the United States. Its Plessy is called Bowers; its Brown is called Lawrence. In the 1986 case Bowers v. Hardwick, the Supreme Court rejected a gay man’s constitutional challenge to Georgia’s anti-sodomy law. In the Court’s terse and embarrassed description, Michael Hardwick had been caught by police in his own bedroom “committing that act with another adult male.” Justice Byron White’s opinion for the Court described Hardwick’s claim as follows: “the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” The Court’s answer was a resounding and hurtful no: “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” For the Supreme Court in 1986, gay people were a joke.
Unlike Plessy, which hardened over decades into an ugly barricade of intolerance, Bowers survived for only seventeen years. The Court reversed it in the 2003 case Lawrence v. Texas, by far the most important gay rights decision issued by a court in this country. The Court threw out the convictions of two men under the Texas homosexual sodomy law, finding that the law—and, implicitly, all others like it around the country—violated the Fourteenth Amendment’s due process clause. Notably, Justice Anthony Kennedy’s opinion went a step further than Chief Justice Earl Warren’s in Brown. Whereas the Brown Court—no doubt in an effort to ensure a unanimous decision—took pains to avoid saying that Plessy had been wrong from the beginning, the Lawrence Court swept all the litter from the table. “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Dale Carpenter, a libertarian law professor at the University of Minnesota and a specialist in gay civil rights law, tells the history of Lawrence in Flagrant Conduct. He has written an exceptional book, in the tradition of Anthony Lewis’s Gideon’s Trumpet (1964), expertly guiding the reader from the moment of the arrest through the culminating oral argument in the Supreme Court. Flagrant Conduct is also a moving and deeply humane study of the law’s effect on ordinary people. One of Carpenter’s best passages recounts the way Justice Kennedy’s voice wavered as he announced the reversal of Bowers, and the way gay men and women wept openly in the courtroom as he uttered the words. “As long as Lawrence shielded them,” Carpenter writes, “never again would gay men and lesbians be presumptive criminals because of their sexual orientation.”