Bowers v. Hardwick

Bowers v. Hardwick
Supreme Court of the United States
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) 106 S. Ct. 2841; 92 L. Ed. 2d 140; 1986 U.S. LEXIS 123; 54 U.S.L.W. 4919
Prior history	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 history	Vacated and remanded, 804 F.2d 622 (11th Cir. 1986)
Holding
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.
Court membership
Chief Justice Warren E. Burger Associate Justices William J. Brennan, Jr. · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell, Jr. · William Rehnquist John P. Stevens · Sandra Day O'Connor
Case opinions
Majority	White, joined by Burger, Powell, Rehnquist, O'Connor
Concurrence	Burger
Concurrence	Powell
Dissent	Blackmun, joined by Brennan, Marshall, Stevens
Dissent	Stevens, joined by Brennan, Marshall
Laws applied
U.S. Const. amend. XIV; Ga. Code § 16-6-2 (1984)
Overruled by
Lawrence v. Texas, 539 U.S. 558 (2003)

Bowers v. Hardwick, 478 U.S. 186 (1986), is a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals.^[1][2] Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled the decision in Lawrence v. Texas, 539 U.S. 558 (2003), and held that such laws are unconstitutional. In overruling Bowers v. Hardwick, the 2003 Court stated that "Bowers was not correct when it was decided, and it is not correct today."

Background

In August 1982, an Atlanta Police Department officer entered the bedroom of Michael Hardwick to serve a summons for throwing out a beer bottle which Hardwick had thrown in a trash can located directly outside of the gay bar in which he worked; the specific citation was for public drinking.^[3] Police Officer Torick had processed the ticket and had marked out the court date of Tuesday and wrote in Wednesday. When Hardwick failed to arrive for his Tuesday courtdate, an arrest warrant was issued personally by officer Torick. The officer then proceeded to Hardwick's apartment to serve the warrant, but he was not home.

When Hardwick arrived home and realized that the officer had been there, he immediately went to the courthouse and paid the ticket. The clerk notified Hardwick that it should have been impossible for Torick to be at his apartment that day because it actually takes 48 hours to process a warrant. Several weeks went by and Officer Torick came to the apartment of Hardwick again to serve the (then-recalled) arrest warrant. Hardwick had an overnight guest who was sleeping off a hangover on his couch. Accounts differ whether he opened the door to the officer and allowed him into the apartment or if the front door was already open. The guest told Torick that he didn't know if Hardwick was home so the officer began searching the house. He found the door to Hardwick's bedroom door slightly ajar and then entered the room where Hardwick and a male companion were engaged in mutual, consensual oral sex.^[4]

He placed both men under arrest for sodomy, which was defined in Georgia law to include both oral sex and anal sex between members of the same or opposite sex.^[5] The local district attorney elected not to present the charge to the grand jury, which would have been a prerequisite to any trial or punishment for the offense. Hardwick then sued Michael Bowers, the attorney general of Georgia, in federal court for a declaration 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.^[6] They approached Hardwick, who, after weighing the issues, 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. 760 F.2d 1202. The State of Georgia then appealed, and the Supreme Court of the United States granted certiorari on November 4, 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.

Decision

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." Justice White's opinion for the majority 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."

The majority opinion was delivered by Justice White, joined by William H. Rehnquist and Sandra Day O'Connor. Chief Justice Burger delivered a concurring opinion in the case. Justice Lewis F. Powell, Jr. delivered a concurring opinion, taking future issue with any legal claims brought against state sodomy laws under the U.S. Eighth Amendment, where the conviction for acts of sodomy result in "cruel or unusual" punishments for those engaging in them: "[this] is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case, Ga.Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct — certainly a sentence of long duration — would create a serious Eighth Amendment issue." Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, dissented, citing that "[t]his case is no more about a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 191, that Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men, namely, the right to be let alone (internal quotations removed." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Justice Stevens, with whom Justices Brennan and Marshall joined in dissent, dissented further from the majority opinion: "the Court orders the dismissal of respondent's complaint even though the State's statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State's post hoc explanations for selective application are belied by the State's own actions. At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss."^[7]

Concurrences and dissents

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."^[8] 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."

Opponents of sodomy laws criticized Bowers not only for its result but also because of the Court's dismissive treatment of the liberty and privacy interests of gay men and lesbians. 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 that "[o]nly 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).

Blackmun revealed in a 1995 oral history with Harold Koh that his dissent in Bowers v. Hardwick was written primarily by openly gay Pam 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."^[9]

Lewis Powell was considered the deciding vote during the case. He had initially voted to strike down the law but changed his mind after a few days.^[10] In a concurring opinion, Powell voiced doubts about the compatibility of Georgia's law with the Eighth Amendment as it related to the prison sentence for conviction, but joined the majority opinion upholding the law against a substantive due process attack. 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] 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 was 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."^[12] However, Powell believed that the case was one of little importance and spent only thirty minutes thinking about it.^[12]

According to Daniel Richman, former clerk for Thurgood Marshall, Marshall's friendship with Bayard Rustin and Rustin's openness about his homosexuality played a significant role in Marshall's dissent. 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."^[13]

Aftermath

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 and was in doubt. In this historical context, Bowers signaled a reluctance by the then-members of the Court to recognize a general constitutional right to privacy or to extend such a right further than they already had.

State sodomy laws were seldom enforced against private consensual conduct in the decades following the decision, but the Bowers decision was frequently cited in opposition to gay rights programs. The Georgia law upheld in Bowers forbade 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."

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, 270 Ga. 327 (1998).

The remaining 13 state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct among adults, in the Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003). Justice Anthony Kennedy wrote the majority opinion in Lawrence, ruling that Texas' 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). Lawrence explicitly overturned Bowers, with Kennedy writing "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."

See also

• Dudgeon v. the United Kingdom
• Judicial review
• Baker v. Wade
• Lawrence v. Texas
• 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

1. ^ "Bowers v. Hardwick". Law.cornell.edu. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZO.html#478_US_186n1. Retrieved 2011-06-01. 
2. ^ "Bowers v. Hardwick". Law.cornell.edu. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZO.html#478_US_186n2ref. Retrieved 2011-06-01. 
3. ^ http://www.sodomylaws.org/bowers/bonews06.htm
4. ^ Murdoch and Price, 278
5. ^ Georgia Code Ann. § 16-6-2 (1984)
6. ^ Murdoch and Price, 279
7. ^ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZC1.html
8. ^ "Bowers v. Hardwick, BURGER, C.J., Concurring Opinion". Law.cornell.edu. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZC.html. Retrieved 2011-06-01. 
9. ^ "The Volokh Conspiracy". Volokh.com. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1114025448. Retrieved 2011-06-01. 
10. ^ Shilts, p. 523
11. ^ Lazarus, Edward. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court, p. 386. "At the Bowers conference, Powell told his colleagues that he had 'never met a homosexual.'"
12. ^ ^{a b} Shilts, p. 542
13. ^ Murdoch and Price, p. 292

Bibliography

• Douglas-Brown, Laura (July 12, 2001). "Bowers v. Hardwick at 15". Southern Voice. Archived from the original on December 8, 2004. http://www.sodomylaws.org/bowers/bonews06.htm. Retrieved August 16, 2010. 
• Murdoch, Joyce; Deb Price (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. Basic Books. ISBN 046501514. 
• Shilts, Randy (1993). Conduct Unbecoming: Gays and Lesbians in the U.S. Military. St. Martin's Griffin. ISBN 0312342640. 

External links

• Text of Bowers v. Hardwick, 478 U.S. 186 (1986) is available from: Justia · Findlaw · LII

• The Invasion of Sexual Privacy