|Bowers v. Hardwick|
|Argued March 31, 1986|
Decided June 30, 1986
|Full case name||Michael J. Bowers, Attorney General of Georgia v. Michael Hardwick, et al.|
|Citations||478 U.S. 186 ( more )|
|Prior||Dismissed, D. Ga.; reversed and remanded, 760 F.2d 1202 (11th Cir. 1985); rehearing en banc denied, 765 F.2d 1123 (11th Cir. 1985); cert. granted, 474 U.S. 943 (1985)|
|Subsequent||Vacated and remanded, 804 F.2d 622 (11th Cir. 1986)|
|A Georgia law classifying homosexual sex as illegal sodomy was valid because there was no constitutionally protected right to engage in homosexual sex. Eleventh Circuit reversed and remanded.|
|Majority||White, joined by Burger, Powell, Rehnquist, O'Connor|
|Dissent||Blackmun, joined by Brennan, Marshall, Stevens|
|Dissent||Stevens, joined by Brennan, Marshall|
|U.S. Const. amend. XIV; Ga. Code § 16-6-2 (1984)|
|Lawrence v. Texas , 539 U.S. 558 (2003)|
Bowers v. Hardwick, 478 U.S. 186 (1986), was a landmark decision of the US Supreme Court 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.This case was overturned in 2003 in Lawrence v. Texas , though the statute had already been struck down by the Supreme Court of Georgia in 1998.
The majority opinion, by Justice Byron White, reasoned that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”.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.” Justice Lewis F. Powell later said he regretted joining the majority, but thought the case of little importance at the time.
The senior dissent, 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.”
Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled its decision in Lawrence v. Texas ,and held that anti-sodomy laws are unconstitutional.
In early July 1982, Atlanta police officer Keith Torick issued Michael Hardwick a citation for public drinking after witnessing Hardwick throw a beer bottle into a trash can outside the gay bar where he worked, allegedly observing him violating the city's ordinance that prohibits drinking in public.Due to a clerical error on the citation issued by Torick, Hardwick missed his court date and Torick obtained a warrant for Hardwick's arrest. Hardwick then settled the matter by paying a $50 fine at a court office, but Torick showed up at Hardwick's house three weeks later, on August 3, to serve the now-invalid warrant. At the time, an unrelated guest of Hardwick was sleeping on the couch in Hardwick's living room; at around 8:30 am, Officer Torick entered the house (the front door may have been ajar) and awoke the guest, then proceeded down a hallway towards Hardwick's bedroom. The officer opened the bedroom door, and Torick observed Hardwick and a companion engaged in mutual, consensual oral sex.
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."Torick then arrested both men for sodomy, a felony under Georgia law that carried a sentence of one to twenty years' imprisonment. 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.
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 a non-celibate gay man, 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.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 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. 4, 1985, to review the case.The State of Georgia then appealed, and the Supreme Court of the United States granted certiorari on November
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.But they failed to obtain standing and were dropped from the suit.
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. Stevens also wrote a dissent joined by Brennan and Marshall.
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.
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”.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.”
In a concurring opinion, Justice Lewis F. Powell, Jr. joined the majority opinion in upholding the law against a substantive due process attack. But 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.
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.It has been claimed that Powell's decision to uphold the law was influenced by his belief that he had never known any homosexuals, even though one of his own law clerks was gay. But 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.
A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an "almost obsessive focus on homosexual activity". Blackmun wrote, "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 Burger's opinion 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 Blackmun's openly gay clerk Pamela S. Karlan.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."
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.
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".
Michael Hardwick died in 1991 of complications from AIDS. According to his lawyer Kathleen Wilde, he died very bitter about the outcome of the case.
Bowers was decided at a time when the court's privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wadehad 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.
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 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.
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 ,are sometimes still cited as precedent in gay rights cases.
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."But Powell believed the case was one of little importance and in 1990 said he hadn't devoted thirty minutes to thinking about it since the ruling.
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 .
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 ,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.”
Bill Moyers discussed the decision at length in an interview with Blackmun on the episode "Mr. Justice Blackmun" of the 1987 Constitutional bicentennial documentary miniseries In Search of the Constitution.
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.
In 2019, an updated revision of Sodomy Rules! (The Bowers v. Hardwick Trial), a solo documentary play based on the life of Michael Hardwick, was written and performed by Bill Crouch in New York City at The New Work Series presented by Emerging Artists, October 7th, 2019.
The last name of the satirical character Betty Bowers, played by Deven Green, is taken from this case.
In the movie The Pelican Brief, there is a scene of a classroom in Tulane University in which the instructor and students discuss this case, with Julia Roberts' character, Darby Shaw, saying that the Court's decision was wrong.
The decision was a watershed moment in LGBTQ rights, leading to renewed organizing, and directly to the formation of advocacy groups such as PROMO.
Romer v. Evans, 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing with sexual orientation and state laws. It was the first Supreme Court case to address gay rights since Bowers v. Hardwick (1986), when the Court had held that laws criminalizing sodomy were constitutional.
Griswold v. Connecticut, 381 U.S. 479 (1965), was a landmark decision of the US Supreme Court in which the Court ruled that the Constitution of the United States protects the liberty of married couples to buy and use contraceptives without government restriction. The case involved a Connecticut "Comstock law" that prohibited any person from using "any drug, medicinal article or instrument for the purpose of preventing conception." The court held that the statute was unconstitutional, and that "the clear effect of [the Connecticut law ...] is to deny disadvantaged citizens ... access to medical assistance and up-to-date information in respect to proper methods of birth control." By a vote of 7–2, the Supreme Court invalidated the law on the grounds that it violated the "right to marital privacy", establishing the basis for the right to privacy with respect to intimate practices. This and other cases view the right to privacy as a right to "protect[ion] from governmental intrusion."
Lawrence et al. v. Texas, 539 U.S. 558 (2003), was a landmark decision of the U.S. Supreme Court in which the Court ruled that U.S. laws prohibiting private homosexual activity between consenting adults are unconstitutional. The Court reaffirmed the concept of a "right to privacy" that earlier cases, such as Roe v. Wade, had found the U.S. Constitution provides, even though it is not explicitly enumerated. The Court based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with private sexual decisions between consenting adults.
Harry Andrew Blackmun was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 until 1994. Appointed by Republican President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade, which prohibits many state and federal restrictions on abortion.
This is a list of notable events in the history of LGBT rights that took place in the year 1986.
Craig v. Boren, 429 U.S. 190 (1976), was a landmark decision of the US Supreme Court ruling that statutory or administrative sex classifications were subject to intermediate scrutiny under the Fourteenth Amendment's Equal Protection Clause.
Martin v. Ziherl, 607 S.E.2d 367, was a decision by the Supreme Court of Virginia holding that the Virginia criminal law against fornication was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v. Texas, which established the constitutionally-protected right of adults to engage in private, consensual sex.
The People v. Ronald Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980), was an appeal against New York's sodomy laws, decided in the New York Court of Appeals.
Kentucky v. Wasson, 842 S.W.2d 487, was a 1992 Kentucky Supreme Court decision striking down that state's criminalization of consensual sodomy between same-sex partners, holding that this was a violation of both the equal protection of the laws and the right to privacy. The Kentucky case helped pave the way for many other states and eventually the United States Supreme Court to issue similar rulings.
Powell v. State of Georgia, S98A0755, 270 Ga. 327, 510 S.E. 2d 18 (1998) was a decision of the Supreme Court of Georgia. Anthony Powell was charged with a complaint in which he had performed non-consensual oral sex upon his wife's 17-year-old niece in his house. The jury acquitted him of the non-consensual portion of the complaint, but convicted him of consensual sodomy.
Eisenstadt v. Baird, 405 U.S. 438 (1972), was a landmark decision of the US Supreme Court that established the right of unmarried people to possess contraception on the same basis as married couples.
The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the U.S. state of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky. The Kentucky Court of Appeals is now Kentucky's intermediate appellate court.
The Consenting Adult Sex Bill is a consenting adult law, passed in California in 1975 and effective in January 1976, that repealed the sodomy law in California so that it applied only in criminal situations and made gay sex legal for the first time. George Moscone, an early proponent of gay rights, in conjunction with his friend and ally in the Assembly, Willie Brown, managed to get the bill passed, 21-20, repealing the existing Californian laws against sodomy. The amendment was signed into law by California Governor Jerry Brown. The Assembly had a much easier time passing the bill, with final vote on AB 489 being 45-26. Gov. Brown signed the bill on May 12, 1975.
Michael Joseph Bowers was the Attorney General of Georgia from 1981 to 1997 before mounting an unsuccessful campaign for Georgia Governor. He now practices law with Balch & Bingham in Atlanta, Georgia.
John Webb was an American jurist who served as an Associate Justice of the North Carolina Supreme Court (1986–1998). Prior to serving on North Carolina's highest court, Justice Webb had been a Superior Court (trial) judge and a judge of the North Carolina Court of Appeals.
State v. Limon, 280 Kan. 275, 122 P.3d 22 (2005), is a Kansas Supreme Court case in which a state law allowing for lesser punishment for statutory rape convictions if the partners were of different sexes than if they were of the same sex was found unconstitutional under both the federal and Kansas state constitutions. It was among the first cases to cite the United States Supreme Court decision Lawrence v. Texas as precedent, months after the Virginia Supreme Court did similarly in Martin v. Ziherl.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
Baker v. Wade 563 F.Supp 1121, rev'd 769 F.2nd 289 cert denied 478 US 1022 (1986) is a federal lawsuit challenging the legality of the sodomy law of the state of Texas. Plaintiff Donald Baker contended that the law violated his rights to privacy and equal protection. After a victory at trial, an appellate court reversed the lower court's decision and in the wake of its decision in Bowers v. Hardwick the Supreme Court of the United States refused to review it.
Doe v. Commonwealth's Attorney of Richmond, 425 U.S. 901 (1976), is a decision by the Supreme Court of the United States which gave summary affirmation of a lower court ruling which upheld the U.S. state of Virginia's ban on homosexual sodomy.