John Lawrence and his boyfriend Tyron Garner were just having a quiet night at home. Fix a little dinner, light a few candles, put on some Marvin Gaye . . .
Outside in their parking lot a man was pointing the police towards John’s apartment—indicating where he thought the armed intruder was—where he “was going crazy in the apartment and was armed with a gun.”
So the cops bust in. John and Tyron are doing what boys like to do when they’re that type of boy. They were arrested under Section 21.06 of the Texas Penal Code, which provides that it’s illegal for boys to like boys in that way, and fined $200 apiece—plus $141.24 in court costs. In the next two months, nine men and women who are as old as your grandparents will say that it’s okay for them to have sex together.
The lying sonofabitch who called in the police got jail time for filing a false report—as he should have. What he did was worse than the class “C” misdemeanor John and Tyron committed. But when the Supremes read out No 02-102, Lawrence v. Texas, the nearly five-year trip the couple have been on will end. As will the centuries of discrimination against gays and lesbians in our country.
It’s a long journey—one that a lot of people thought was over in 1986, when the Supremes heard a similar case. Bowers v. Hardwick was where everybody just knew it was going to happen—they were going to make homosexuality a protected class. Everybody was wrong: they got a majority decision and a concurrence that was so filled with anti-gay sentiment that the point was rendered moot years later, when the state supreme court of Georgia threw the statute out itself. Wonder where Senator Rick Santorum got that rag-tag batch of bile and bigotry he got fried over? Comparing being gay to incest, adultery, and bigamy came right out of Bowers. So Ricky may be a bigot, but he’s a constitutionally-accurate bigot.
Ten years later the dam began to crack. That’s when Romer v. Evans came down the pike—saying that Colorado has no business making anti-gay laws. Justice Antonin Scalia sputtered in dissent that them making gays just disfavored wasn’t nearly as bad as them allowing the gay sex to be criminalized. He was right, and that’s why we’re here today.
Why does it take so long? You might ask. Why didn’t they fix the problem right away? I suppose there’s a host of answers, not the least of which is—they were looking for the poetry of the facts. They were looking for that one case which they could hit a homerun off of—not something in the margin, but something like—
Well, something like two men having a nice night in. Something with John and Tyron. Sometime in the next two months a person old enough to be your grandfather—I hope it’s Justice Ginsburg, my favorite—will clamber to a podium, and she will begin to read. The justices read their opinions when they are handed down: our concession to oral tradition, to the power of the spoken word. The opinion will be about ten reporter pages long—about six thousand words long. It will take her about forty-five minutes to an hour to read it. There will be five other justices agreeing with her—two of them concurring specially. Three will write lengthy and bitter dissents.
I can’t say any of this for sure, but I believe it. I know because I’ve immersed myself in it for a week—this jurisprudence of equal and fundamental rights, of Plessy, and Bowers, and Eisenstadt, and Carey, and Virginia—what you would call VMI, and Reed, and Romer, and Railway Express, and all of their fine brothers and sisters. I wrote myself a version—it just took a month or so. I’ll send you a copy of you want—just leave a response.
So maybe John and Tyron will never get their $540 back. But will it be worth it? Oh yeah. Because the Supreme Court of the United States will find a new right deep within the penumbras of our fine, flexible, and inexorably alive Constitution. Might I be wrong? Yes. Yes, I might be—I’ve been wrong plenty of times before. But this time, it’s a sure thing. This time, they’re going to do what’s right.