As a rule, religio-reactionaries have avoided dealing with the substance of the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, the case which abolished laws outlawing consensual sodomy between same-sex adults nationwide.
Oh, there have been plenty of mentions of Lawrence by religious right-wingers, but almost exclusively in two contexts: 1) That the decision is morally wrong, since the Christian Bible deems all homosexual acts to be "abominations" (punishable by death, as per Leviticus 20:13, though they usually leave that last part out); and 2) That the decision was constitutionally incorrect because it was based in part upon "foreign law." (See " Justice Scalia In Public" for a refutation of that argument.)
But while the logic of Lawrence is irrefutable under the Fourteenth Amendment's substantive due process liberty right, at least one conservative has attempted to sidestep the constitutional basis of the decision in favor of claiming that the high court should never have taken the case in the first place.
Judge Janice Law, currently a "visiting judge" of the Harris County, Texas court system, perhaps partly as a result of having scored the largest number of "unqualified" ratings in a 2002 Judicial Candidate Qualification Poll conducted by the Houston Bar Assn., has written a book, Sex Appealed, whose premise in laid out in its subtitle, "Was the U.S. Supreme Court Fooled?"
The subject of the alleged fraud is, of course, Lawrence v. Texas, which almost wound up in front of Law when she was about to take the place of Judge Hannah Chow, whom Law had defeated in November, 1998 for a seat on the Harris County Criminal Court No. 5 bench. But as one of Chow's last official duties, she had the Lawrence case transferred from what was still her own courtroom to that of another, more experienced judge, Sherman Ross – a move Law describes as "unusual, although perhaps not unprecedented."
Which, in a nutshell, is the trouble with this extremely poorly-written book: Law is quick to see conspiracies where there may only be coincidences.
In service of her conspiracy theory, Law brings to bear two "talents" – such as they are. Law claims to have been a journalist before becoming a judge, but judging by Sex Appealed, it's difficult to believe that she made a living at news writing. The book barely holds its narrative together, frequently going off on tangents regarding some issue or other, but more often simply suspending forward motion in order to give some worthless background information on one character or another. Did we really need to know where every player grew up, how muscular they were, how much hair they had, and, if an attorney, where that person went to law school?
More frustrating still is Law's insistence on replacing nearly every pronoun in the quotes she uses with the person's actual name (in brackets, of course), even when there's no question to whom the pronoun refers.
Judge Law's other talent – knowledge of the Texas judicial system and the rules of evidence – is also lacking. The basis of the vast majority of her speculation about the "conspiracy" is that, in her apparently fairly extensive interviews with a number of the major players in the case – plaintiffs John Lawrence and Tyron Garner; their attorneys Mitchell Katine and David Jones; the plaintiffs' "accuser," Royce Eubanks; an acquaintance of nearly all the players, Lane Lewis; a couple of local politicians, plus a couple of attorneys from the Lambda Legal Defense and Education Fund – Law was able to pick up several differences, most minor but some significant, in different interviewees' versions of the events that transpired before and during the pendency of the case. However, if there's one thing that every experienced judge – in fact, any experienced attorney – should know, it's the unreliability of eyewitness testimony.
Simply put, people forget things. People misremember things. People even subconsciously rearrange the order of events – even ones in which they've been intimately involved – in their memories. People even "remember" things that never happened at all. That's why judges have boilerplate jury instructions that deal with the reliability (or unreliability) of eyewitness testimony.
Yet somehow, Judge Law never once mentions the most likely explanation for the differences in various witnesses' stories: That they simply forgot or misremembered what happened; in some cases, regarding events that occurred five years before.
Law also seems to have a problem with a witness – Lewis – using the word "story" as a synonym for "narrative" or "version of events." "Lewis' repeated choice of the word 'story caught my attention," she states. "Webster defines story as a fictitious literary composition," ignoring its other common meanings and implying that Lewis' use of "story" meant that he had invented his version of events out of thin air – or by conspiring with other witnesses. On a couple of pages, she even italicizes the word every time Lewis uses it (pp 107-108).
Law's central premise is that the original Lawrence/Garner bust on September 17, 1998 was a set-up; that Royce Eubanks, the man who called police that night to report "a man with a gun going crazy inside [Lawrence's] apartment; possible shots fired" was part of an elaborate scheme cooked up by local gay rights activists to trick police into breaking into Lawrence's apartment while he and Garner were either having anal sex or one was giving the other a blowjob (the police reports differ on that subject).
Were that the case, Law argues, if Lawrence and Garner had wanted to be caught performing sodomy, then they would have forfeited any expectations of privacy, and that the Supreme Court's opinion that the plaintiffs had a substantive due process privacy right under the Fourteenth Amendment to engage in consensual sodomy would never have been written.
Law bolsters her point by quoting Justice Don Wittig of the Texas Court of Civil Appeals.
"As I recall, Lawrence and Company [sic] actually had the police come and catch them," Justice Wittig stated. "In other words, they knew the police were coming. They set it up so the police would come. So there was no expectation of privacy."
That idea, of course, is nonsense. For one thing, the right of privacy means much more than, as Law implies, being able to do something out of public view. In terms of the Constitution, it means having the right to do something without that action being interfered with by law enforcement – indeed, by any level or arm of government.
Moreover, whether Lawrence, Garner, Eubanks or anyone "set up" the bust is immaterial in terms of the case's qualification to be reviewed by the Supreme Court. A bust, after all, is a bust. Moreover, some of the most famous civil rights cases in history, as law student blogger Robert points out on the University of Michigan's UMOutlaws.org website, have been "set ups," including the late Rosa Parks' taking a seat in the front of a segregated Montgomery, Alabama public bus. And, as Robert notes, "the lunch counter sit-ins of the 1960s weren't held because somebody wanted a sandwich. These scenes were crafted to avoid any judicial wiggling, to hit the issue right on the head and avoid rulings on other grounds."
"I don't know if Lawrence was a test case or not," Robert concludes, "but I do know that it was nearly perfect. That's not sinister, that's good lawyering."
