This Article is an attempt to fill in some of the gaps in the public's knowledge of the case Lawrence v. Texas. Much of the rich post-arrest history of the case has been ignored. But for the courage, insight, and initiative of three men in particular, the arrest might have been another forgotten episode in what the author calls the under history of the Texas sodomy law, the history not told in appellate opinions or in most other accounts.
Section II reviews the "somewhat known" past, tracing the evolution of the Texas sodomy law from a statute so facially indeterminate that it dared not speak its name to an enactment of exquisite specificity focusing only on homosexuals. The author concludes that it is likely the Texas law had sporadically been enforced against private, adult, consensual activity. However, the stories of the people involved in this enforcement have been hushed up, victims of the shame the law itself both reflected and reinforced. The Lawrence and Garner arrests nearly came to the same fate.
Section III begins to unearth the untold story of Lawrence, the story that cannot be found in the pages of the U.S. Reports or in newspaper and magazine accounts. This includes a description and analysis of what likely happened that partly cloudy September night in Houston more than six years ago. I want to emphasize that the conclusions I offer in this section are based on a necessarily incomplete examination of the principals involved. Most important of all, before any definitive conclusion could be reached, it is still necessary to hear the story of these events from Lawrence and Garner themselves. So far that has not been possible.
Section IV reveals how the matter started the journey from an arrest to a Justice of the Peace to more exalted places. It tells the story of a real hero, Lane Lewis, and the two men brave enough to assist him - all three of whom have been lost in the understandable focus on the defendants and their attorneys.
Section V places the story told in Sections III and IV in the larger framework of gay history and the treatment of gay people by the law.
Michigan Law Review
Dale Carpenter, The Unknown Past of Lawrence v. Texas, 102 Mich. L. Rev. 1464 (2004)