Bowers v. Hardwick

Bowers v. Hardwick, 478 U.S. 186 (1986), is a United States Supreme Court decision, overturned in 2003, that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, in this case with respect to homosexual sodomy, though the law did not differentiate between homosexual sodomy and heterosexual sodomy.^[1]

The majority opinion, written by Justice Byron White, reasoned that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”.^[1] A concurring opinion by Chief Justice Warren E. Burger cited the “ancient roots” of prohibitions against homosexual sex, quoting William Blackstone’s description of homosexual sex as an “infamous crime against nature”, worse than rape, and “a crime not fit to be named”. Burger concluded: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”^[2] Justice Lewis F. Powell later said he regretted joining the majority, but thought the case of little importance at the time.

The senior dissent, authored by Justice Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun’s dissent accused the Court of an “almost obsessive focus on homosexual activity" and an “overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases”. In response to invocations of religious taboos against homosexuality, Blackmun wrote: “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”^[3]

Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled its decision in Lawrence v. Texas, 539 U.S. 558 (2003), and held that anti-sodomy laws are unconstitutional.

Background

In August 1982, Atlanta police officer Keith Torick issued Michael Hardwick a citation for public drinking after witnessing Hardwick throw a beer bottle into the brush along Monroe Ave, thereby observing him violating the city’s ordinance that prohibits drinking in public. Due to a clerical error, Hardwick missed his court date and Torick obtained a warrant for Hardwick's arrest. Hardwick then settled the matter by paying the $50 fine, but Torick showed up at Hardwick's apartment three weeks later to serve the now-invalid warrant.^{[4]:232–233[5]} Hardwick’s roommate was sleeping on the couch in the living room. The roommate invited officers in and directed them down the hall to Hardwick’s room. The door was open and the officers observed Hardwick and a companion engaged in mutual, consensual oral sex.^[5]

Hardwick was angry at the intrusion and threatened to have Torick fired for entering his home. Torick later stated that he "would never have made the case if [Hardwick] hadn't had an attitude problem."^[4]:233 Torick then arrested both men for sodomy, a felony under Georgia law that carried a sentence of one to twenty years imprisonment.^[6] District Attorney Lewis Slaton chose not to prosecute the sodomy charge, considering that the warrant had expired, and his own belief that the sodomy law should not be used to prosecute consensual sexual activity.^[4]:234

Hardwick then sued Michael Bowers, the attorney general of Georgia, in federal court for a declaratory judgment that the state’s sodomy law was invalid. He charged that as an active homosexual, he was liable to eventually be prosecuted for his activities. The American Civil Liberties Union (ACLU) had been searching for a “perfect test case” to challenge anti-sodomy laws, and Hardwick’s cause presented the one they were looking for.^[7] They approached Hardwick, who agreed to be represented by ACLU attorneys.

In the lower federal courts, Hardwick was represented by attorney Kathleen Wilde. The case was filed in the United States District Court for the Northern District of Georgia, where it was dismissed, with the Court ruling in favor of Attorney-General Bowers. Hardwick appealed, and the United States Court of Appeals for the Eleventh Circuit reversed the lower court, finding that the Georgia sodomy statute was indeed an infringement upon Hardwick’s Constitutional rights.^[8] The State of Georgia then appealed, and the Supreme Court of the United States granted certiorari on 4 November 1985, to review the case.

Hardwick was represented before the Supreme Court by Harvard Law School Professor Laurence Tribe. Michael Hobbs, assistant attorney general, argued the case for the State. The legality of the officer’s entry into Hardwick’s home was not contested; only the constitutionality of the sodomy statute was challenged.

A heterosexual married couple was initially named in the suit as plaintiffs John and Mary Doe, alleging that they wished to engage in sodomy but were prevented from doing so by the Georgia anti-sodomy law. However, they failed to obtain standing and were dropped from the suit.

Opinion of the Court

The Court issued a 5-4 ruling upholding the sodomy laws. Justice Byron White wrote the majority opinion and was joined by Justices William Rehnquist, Sandra Day O'Connor, Warren E. Burger, and Lewis F. Powell. Justice Harry Blackmun wrote a dissent joined by William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens. Justice Stevens also wrote a dissent joined by Justices Brennan and Marshall.

Majority opinion

The issue in Bowers involved the right of privacy. Since 1965’s Griswold v. Connecticut the Court had held that a right to privacy was implicit in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Bowers, the Court held that this right did not extend to private, consensual sexual conduct, at least insofar as it involved homosexual sex. The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution confers “a fundamental right upon homosexuals to engage in sodomy.” The opinion answered this question in the negative, stating that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”

Justice White added a slippery slope warning about undesirable potential implications for other sex laws:

And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [p196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Chief Justice Burger's concurrence

The short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward homosexual sex, quoting Sir William Blackstone’s characterization of sodomy as “a crime not fit to be named”.^[2] Burger concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Justice Powell's concurrence

In a concurring opinion, Justice Lewis F. Powell, Jr. joined the majority opinion in upholding the law against a substantive due process attack. However, he voiced doubts about the compatibility of Georgia’s law with the Eighth Amendment, noting that even consensual sodomy could be punished with up to twenty years in prison, the same sentence as aggravated battery or first-degree arson. However, since Hardwick had not been tried or sentenced, the question of the statute's constitutionality under the Eighth Amendment did not come up in the case.

Justice Powell was considered the deciding vote during the case. He had initially voted to strike down the law but changed his mind after conservative clerk Michael W. Mosman advised him to uphold the ban.^[9][10] It has been argued that Powell’s decision to uphold the law was influenced by the fact that he believed he had never known any homosexuals, unaware that one of his own law clerks was gay.^[11][12] However, that clerk has said that Powell had met his boyfriend, and that Powell had asked him about the mechanisms of homosexual sex when deciding the case. He felt that Powell had made the remark in order to avoid revealing that one of his clerks was gay, at a time when such a revelation could have destroyed that clerk's future legal career. Journalists have since found that Powell hired more gay law clerks than any of the other justices.^[13]

Dissents

Justice Blackmun's dissent

A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an "almost obsessive focus on homosexual activity". Justice Blackmun suggested, "Only the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality'” (ironically quoting from the opinion by Chief Justice Burger in Paris Adult Theatre I v. Slaton, which held that obscene films are not constitutionally protected). The dissent compared the majority opinion to that in Minersville School District v. Gobitis, which was reversed by the Court after only three years.

Blackmun revealed in a 1995 oral history with Harold Koh that his dissent in Bowers v. Hardwick was written primarily by openly gay Pamela Karlan (then a law clerk for Blackmun and now professor of law at Stanford Law School). Blackmun said of the dissent, "Karlan did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct."^[14]

Justice Stevens's dissent

Justice John Paul Stevens wrote a separate dissent that focused on the selective enforcement of the law against homosexuals. The Georgia statute could not be applied to married heterosexuals, as consensual sexual activity within the bounds of marriage was protected under Griswold v. Connecticut. Nor could the law be applied to unmarried heterosexuals, as Eisenstadt v. Baird had extended Griswold to unmarried people. Since heterosexuals could never be prosecuted for sodomy, Georgia should have the burden of proving that selective enforcement against homosexuals was constitutional.

Subsequent findings

According to Daniel Richman, former law clerk for Justice Thurgood Marshall, Marshall’s friendship with civil rights leader Bayard Rustin and Rustin’s openness about his homosexuality played a significant role in Marshall’s decision to join both dissents. Richman also recalled that Marshall thought that the case was a "no-brainer", and told Richman, who wrote a bench memo for Marshall on the case, that "this [case] is controlled by Stanley".^[15]

Subsequent events

Jurisprudence

Bowers was decided at a time when the court’s privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), had come under heavy criticism. Bowers signaled a reluctance by the Court to recognize a general constitutional right to privacy or to extend such a right further than they already had.^[16]

The Georgia law upheld in Bowers criminalized oral sex and anal sex whether engaged in by people of the same sex or different sexes, but Justice White’s decision was restricted to homosexual sex. “The only claim properly before the Court, therefore, is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” State sodomy laws were seldom enforced against private, consensual conduct in the decades following the decision, though many courts and state governments interpreted it to justify a wide variety of bans and limitations on the lives of gay people.^[17]

Bowers was used to deny suspect class qualification to gays and lesbians, thus restricting the standard of review to rational basis. Although Bowers was later overruled, decisions based on it, such as High Tech Gays v. Defense Industrial Security Clearance Office (1990), are sometimes still cited as precedent in gay rights cases.

Justice Powell's later comments

In 1990, three years after retiring from the Court, Powell told a group of New York University law students that he considered his opinion in Bowers an error. “I do think it was inconsistent in a general way with Roe. When I had the opportunity to reread the opinions a few months later I thought the dissent had the better of the arguments."^[18] However, Powell believed that the case was one of little importance and in 1990 stated that he hadn't devoted thirty minutes to thinking about it since the ruling.^[18][19]

Repeal of state sodomy laws

In the years after Bowers was decided, several state legislatures repealed their sodomy laws. In addition, a number of state courts invalidated sodomy laws under privacy or other provisions of their state constitutions. The same sodomy law that was upheld in Bowers was struck down by the Georgia Supreme Court under the Georgia state constitution in the case of Powell v. State^[20][17]

Lawrence v. Texas

The remaining 13 state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct among adults, by the Supreme Court decision in Lawrence v. Texas 539 U.S. 558 (2003), which explicitly overturned Bowers. Justice Anthony Kennedy wrote the majority opinion in Lawrence, ruling that Texas’s state sodomy law was unconstitutional under the Fourteenth Amendment’s due process clause (adult consensual sexual intimacy in one’s home is a vital interest in liberty and privacy protected by the Due Process Clause). Kennedy wrote: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Media portrayal

In 2009, a play based on the life of Michael Hardwick and the judicial proceedings, Sodomy Rules: The Bowers v. Hardwick Trial, was written and performed by Bill Crouch in New York City.^[21]

See also

• Dudgeon v. the United Kingdom
• Judicial review
• Baker v. Nelson
• List of court cases
• List of United States Supreme Court cases, volume 478
• List of United States Supreme Court cases
• Lists of United States Supreme Court cases by volume
• List of United States Supreme Court cases by the Rehnquist Court
• Sex-related court cases
• Sodomy laws in the United States

References

Bibliography

• Douglas-Brown, Laura (July 12, 2001). "Bowers v. Hardwick at 15". Southern Voice. Archived from the original on December 8, 2004. Retrieved August 16, 2010. 
• Murdoch, Joyce; Deb Price (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. Basic Books. ISBN 978-0-465-01514-6. 
• Shilts, Randy (1993). Conduct Unbecoming: Gays and Lesbians in the U.S. Military. St. Martin’s Griffin. ISBN 978-0-312-34264-7. 

External links

Wikisource has original text related to this article: Bowers v. Hardwick

• Text of Bowers v. Hardwick, 478 U.S. 186 (1986) is available from:  Findlaw  Justia  LII 
• The Invasion of Sexual Privacy
• Text of the Georgia Anti-Sodomy Statute at Onecle.com