'Flagrant Conduct': Remembering Lawrence v. Texas

See a NY Times review of Dale Carpenter's new book "Flagrant Conduct," telling the story of Lawrence v. Texas, the 2003 US Supreme Court case which decriminalized homosexuality in Texas. In the wave of overcriminalization sweeping through Texas law over the last two decades, this was a single, notable movement in the opposite direction, and one with far-reaching results. Seldom discussed is the extent to which the original criminal case was based on trumped up charges:

According to Carpenter, almost no one familiar with the incident believed the police report. The judge handling the case suspected that [Deputy Joseph] Quinn had either made up or embellished the sex charge, and the county’s top prosecutor seemed personally reluctant to pursue it. “I’m not sure I agree with government regulating private sex acts between consenting adults,” he told the press, “but it’s not my call.” What kept the case alive, Carpenter shrewdly explains, was relentless pressure from opposite sides of the political spectrum: Republicans seeking a “family values” issue, on one end; gay rights activists handed a good “test case,” on the other. 

What I remember most about this case was the man who argued it for the state before SCOTUS and miserably blew it - Chuck Rosenthal, who the Times review called "the flamboyant, if woefully unprepared, Harris County district attorney." His performance is described thusly:

It is impossible in this limited space to convey the sheer ineptitude of Rosenthal’s presentation. At one point, Justice Scalia had to warn the hapless district attorney that he was about to answer a trick question. “Don’t fall into that trap,” he scolded. Within minutes, the justices were ignoring Rosenthal’s inane responses and arguing the merits themselves, leading Chief Justice William Rehnquist to suggest that “maybe we should go through counsel.” The highlight came when a frustrated Justice Stephen Breyer innocently requested a “straight answer” from Rosenthal, sending waves of laughter through the room.

That's the image of Chuck Rosenthal which always comes to mind, for me anyway, whenever I read Murray Newman waxing on about the good ol' days at the Harris County DA's Office.

It's worth mentioning that Penal Code 21.06 banning homosexuality is still on the books in Texas, despite the Supreme Court striking it down. It's no longer good law, but since 2003 the GOP has held the majority in both chambers of the Texas Legislature, and it's so far been impossible to get Republicans to take an on-the-record vote for repeal, however meaningless, that could be construed by a primary opponent as in favor of homosexuality.

So the strangest conduct of all arguably has been by the government, especially Chuck Rosenthal, but also an allegedly mendacious police officer and special interests pushing to pursue charges nobody really believed for political reasons. A truly Texan tale.