The word “Friendship” was adopted as the Texas state motto by the Forty-first Texas Legislature in February 1930. 43 years later Chapter 21, Sec. 21.06 of the Texas Penal Code was adopted when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse. In a way, Texas had just become much less “friendly” to a certain group of people: couples that fell outside the heterosexual limits that the law now protected. The section stated that “(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. (b) An offense under this section is a Class C misdemeanor.” This law, known as the homosexual conduct law, is still on the Texas lawbooks today but was overturned on a National level in 2003 by two men who didn’t even know the law existed in the first place.
Police arrested John Lawrence and Tyrone Garner for engaging in “deviate sexual intercourse”, a direct violation of statute 21.06, on the night of September 17, 1998. This night would go down in history as a deeply contested one. Despite never contesting the police allegations and public maintaining that they indeed had been caught in the act, years after the court proceedings they revealed that the cops may have made up the charges. All the same, the men were arrested and could have easily paid the fines for the Class C misdemeanor they were arrested under. They would have walked away from the case like so many people had done before under the veil of fear and shame. Lambda Legal, however, had been waiting desperately for a case like Lawrence that could challenge the privacy issues surrounding Texas’s sodomy law.
Though Lambda Legal took up the case, Lawrence and Garner wouldn’t have been their first choice. They were an interracial couple, with an noticeable age gap, barely reaching the middle class, and they weren’t even truly a couple to begin with. John Lawrence was a white, medical technologist with a criminal record while Tyrone Garner was a black dishwasher, 24 years younger than Lawrence at the time of the arrest. The lawyers kept a close reign on the men, not allowing them to speak off script or make unchaperoned public appearances. The two men, private as they were, didn’t add much of their perspectives to the narrative. Yet on June 26, 2003, five years after their arrest, the Supreme Court ruled in their favor.
The Lawrence v. Texas case is built on a history deeply rooted in morality, tradition, and people who dared to challenge the social code built on such. This continuous use of morality to back legality followed the movement of Lawrence v. Texas through the court system. Amicus briefs for the case show a wild array of moral arguments based in early colonial law that regulate sodomy under the protection of family and reproduction. These arguments would continue after Lawrence’s supreme court decision. As Scalia’s forboded in his dissent on the case, the legalization of gay marriage would come soon after and would have to overcome similar arguments to be won.
Use of ethics and morality to police marginalized persons isn’t something contained to a dramaturgical past and is still present in courtrooms today. The work of theater like 21.06 is in its ability to demystify and humanize the court of law. Not much is written on Lawrence and Garner. Their voices were often muted by the lawyers they worked with. Their story hasn’t been told. In a way this play is both fact and fiction. Kozinn and Smith have the sound bites and articles from the court proceedings but have gone beyond evidence to imagine what it might have been like for these men to be suddenly thrown into a national legal proceeding. With so little left behind from the men themselves, this story is not the whole picture but allows an audience to witness snapshots of the great sacrifices made by everyone involved.