John Lawrence and Tyron Garner pass away
by Mitchell Katine
Photo by John Conroy
John Lawrence recently passed away on November 20, 2011. Tyron Garner passed away in 2006. With the passing of John, the two men who have moved us closer than ever to marriage equality and helped abolish “Don’t Ask, Don’t Tell” will unfortunately begin to fade away in history. It is important to remember the role John and Tyron played in the Supreme Court victory that strengthened the right to privacy for all Americans, and the freedom for LGBT people to live their personal lives with dignity and without government interference.
In 1986, the United States Supreme Court issued a terrible ruling known as the Bowers v. Hardwick decision. The Bowers v. Hardwick case was brought by a gay man to try to overturn a Georgia statute that made oral sex a crime. To the surprise of many, instead of upholding the civil rights of gay and lesbian individuals, the United States Supreme Court declared that gay and lesbian people would not be protected in their private sexual activity by the United States Constitution. This decision gave states a “green light” to not only further criminalize gay, lesbian, bisexual, and transgender individuals, but also to use “moral disapproval” as a basis to penalize all persons. From that moment on, LGBT people were legally discriminated against and considered criminals in various settings, such as child custody disputes, employment claims, and political campaigns.
In 1988, John Lawrence and Tyron Garner were arrested in the home of John Lawrence for allegedly engaging in intimate sexual conduct in the privacy of John’s apartment. Although this allegation was false, John and Tyron were accused of homosexual behavior, arrested in the middle of the night, and brought to jail. Upon being released from jail, they decided to fight the charges. These two accused defendants were willing to put their names, reputations, and lives on the line to fight the unjust law. By creating a forum that would expose this injustice to the public, John and Tyron made this more than an “individual” fight. It became a platform to have every one of our country’s “sodomy laws” put on trial once and for all.
At the time of John and Tyron’s arrests, it was appropriate for courts to follow the Bowers v. Hardwick decision in dismissing any challenges to penal code statutes and other governmental activity that penalized or criminalized conduct based upon sexual orientation. Under Bowers v. Hardwick, the Texas Penal Code provision 21.06 entitled “Homosexual Conduct” appeared to be constitutional. Hence, Texas was permitted to have a statute that made private, consensual, homosexual conduct between adults a crime. When John and Tyron were arrested in 1998, the chances of success in challenging the constitutionality of the law were bleak. John and Tyron were aware that their chances of winning were slim, but decided to go forward anyway. Both men hoped a judge would recognize and acknowledge the injustice that had taken place. Little did they realize that they were embarking on a five-year journey that would end in Washington DC.
In Texas, all judges are elected. As such, regardless of the judge’s personal beliefs, it is extremely hard for a judge to rule based upon constitutional principles when doing so is likely to result in their defeat in the next election cycle. Additionally, with the Bowers v. Hardwick decision issued by the United States Supreme Court, most Texas judges felt the Bowers v. Hardwick decision legitimized and authorized the Texas homosexual conduct statute. As a result, the Lawrence v. Texas case lost every judicial review throughout the Texas legal process.
Early on in our case, it was apparent that John and Tyron needed the assistance of constitutional law experts who were trained, educated, and experienced in raising constitutional challenges based upon sexual orientation. Private practitioners rarely have an opportunity to work on constitutional law issues. We needed the help of an experienced law firm that was well-versed in constitutional challenges. I contacted my friend Suzanne Goldberg at Lambda Legal in New York City and quickly engaged their services as lead counsel on the case. My role remained as local counsel and daily advisor to John and Tyron throughout the entire legal process. It was a privilege to work with the many constitutional scholars at Lambda Legal who brilliantly briefed, argued, and shepherded the case to victory.
Throughout the five-year process, beginning in a Harris County Justice of the Peace Court and ending in the United States Supreme Court in Washington DC, John and Tyron were unwavering in their commitment to seek liberty for all persons.
In 2003, the United States Supreme ➝ Court indicated they would hear the case. John and Tyron felt the day of liberation was on the horizon. During oral arguments at the United States Supreme Court, it was apparent that the Supreme Court Justices were evaluating the case on constitutional principles, as well as on their personal experiences in dealing with gay and lesbian individuals.
In the end, the Lawrence v. Texas decision issued by the United States Supreme Court was more sweeping and forceful than any of us had anticipated. The United States Supreme Court admitted its error in the 1986 Bowers v. Hardwick decision, declaring that decision was wrong when it was issued and wrong today. Justice Kennedy further explained that gay and lesbian individuals have the right to seek dignity in their relationships without the interference of government.
Shortly after the Lawrence v. Texas decision was issued, the Massachusetts Supreme Judicial Court issued its historic decision permitting—for the first time in United States history—marriage between persons of the same sex. The Massachusetts Supreme Judicial Court’s decision cited and quoted from the Lawrence v. Texas decision. Other states soon followed, and ultimately the United States government did away with its ban on gay and lesbian individuals serving in the United States military. Undoubtedly, the decision in the Lawrence v. Texas case cleared the way for such historic changes.
After the Lawrence v. Texas decision was issued in 2003, John, Tyron, and I traveled around the country speaking at various law schools and universities on the impact of the decision and the freedoms given to LGBT individuals. John and Tyron particularly enjoyed meeting people. Seeing John and Tyron face-to-face gave the students a firsthand look into the lives of these heroes, whose ordinary lives were suddenly disrupted by a terrible, discriminatory event that became a turning point in American civil rights history. Neither John nor Tyron were politically involved or ever considered themselves political activists. They were simply willing to fight against tremendous odds for what they believed was right.
Now that John and Tyron are no longer physically with us, law students and others may view the Lawrence v. Texas as just another historical event in the fight for equality—failing to remember that John and Tyron were regular men who decided to fight against a terrible injustice through a legal battle that they ultimately won.
Until the day they both died, they never experienced negative comments or incidents. Many gay and lesbian individuals fear coming out and fighting for their rights. Fear is a terrible constraint on the fight for liberty. Due to many years of oppression, LGBT individuals often find a degree of peace in remaining closeted and hidden. John and Tyron were not out to their coworkers and many others at the time they were arrested. Hence, having their names and pictures on the front page of all of the major newspapers in this country made their saga even more difficult. However, John and Tyron never hesitated to proceed with the case despite personal issues that had to be resolved. The examples of John and Tyron should give all of us confidence to fight for our rights.
John and Tyron got the chance to change the world and they did. History will remember them as heroes who fought for justice and won liberty for generations to come.
Mitchell Katine is a founding partner with the law firm of Katine & Nechman L.L.P.