Bowers v. Hardwick Upholds State Sodomy Laws

The U.S. Supreme Court’s decision in Bowers v. Hardwick upheld the state of Georgia’s power to criminalize private, consensual, adult sexual relations between men.

Date 1986

Locale Atlanta, Georgia

Key Figures

• Michael J. Bowers attorney general of Georgia, 1981-1997
• Michael Hardwick (1954-1991), bartender
• Harry A. Blackmun (1908-1999), associate justice of the United States, 1970-1994
• Warren E. Burger (1907-1995), chief justice of the United States, 1969-1986
• Lewis F. Powell (1907-1998), associate justice of the United States, 1972-1987
• John Paul Stevens (b. 1920), associate justice of the United States from 1975
• Byron White (1917-2002), associate justice of the United States, 1962-1993

Summary of Event

In August, 1982, Atlanta police arrived at the home of a twenty-eight-year-old gay bartender, Michael Hardwick. They were lawfully admitted into the apartment by a roommate of the respondent for the purpose of serving Hardwick with an arrest warrant for failure to appear in court on an unrelated charge (drinking in public). The arrest warrant was later found to have been invalid. While attempting to serve the warrant, the police officers entered Hardwick’s bedroom and found him engaged in oral sex with another man. The law enforcement officials arrested both men under Georgia’s sodomy statute.

The district attorney for the county of Fulton, Georgia, declined to prosecute. However, Hardwick was issued a warning that the sodomy charges would be brought in the future if the respondent did not stay out of trouble for a period of seven years. Hardwick, in turn, filed suit against Michael Bowers, attorney general of the state of Georgia, charging that Georgia’s sodomy statute was unconstitutional. A sodomy conviction in Georgia carried a maximum punishment of twenty years in prison. After hearings in the Federal District Court for the District of Northern Georgia and the U.S. Court of Appeals, the case moved to the U.S. Supreme Court on a writ of certiorari.

The closely divided Court ruled 5-4 against the respondent, Hardwick, and for the petitioner, Michael J. Bowers, attorney general of Georgia. Five opinions were filed in this case: the majority ruling (Justice Byron White), two minority concurring decisions (Chief Justice Warren E. Burger and Justice Lewis F. Powell), and two dissenting opinions (one by Justice Harry A. Blackmun, the other by Justice John Paul Stevens).

The fundamental issue in Bowers v. Hardwick (1986) was the right to privacy. The Supreme Court had previously ruled in Griswold v. Connecticut (1965) that, although the U.S. Constitution does not enumerate a specific “right to privacy,” the provisions of the Bill of Rights, taken together, created certain penumbras, or zones of privacy, within which the government may not intervene. The First, Third, Fourth, and Ninth Amendments to the Constitution established an implied right to privacy in marital relations. Any law, regulation, ruling, or statute that conflicted with this right to privacy was unconstitutional.

In the 1973 Supreme Court ruling in Roe v. Wade, the justices expanded the foundation of the right to privacy by adding the Fifth and Fourteenth Amendments to those already cited in Griswold. The right to privacy, the Court said, was educed from the guarantees of the Fifth Amendment and the due process clause of the Fourteenth Amendment. Abortion, therefore, fell under the penumbra of the right to privacy implied in the Bill of Rights and extended those protections to apply to the states as well as the federal government.

In Bowers v. Hardwick the majority ruled that the right to privacy did not extend to private, consensual adult same-gender sodomy. Justice White, writing for the majority, held that “[t]he Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” The Court further ruled that it was disinclined to discover new rights within the embrace of the due process clause of the Fourteenth Amendment. That the behavior in question (sodomy) occurred in the privacy of the home did not matter to the Court. Finally, the Court determined that the opinion that a majority of Georgians disapproved of homosexual sodomy as immoral and unacceptable was a rational basis in law for Georgia’s sodomy statute.

In his concurring decision, Chief Justice Burger noted that the Constitution guarantees no fundamental right to practice homosexual sodomy. The real question, according to Burger, concerned the scope of the state’s police powers and whether that authority enabled the state to regulate private, consensual, adult homosexual relations. He argued it did.

Justice Powell, also concurring, ruled that there was, indeed, no substantive right at issue in the case that was protected by due process under the Fourteenth Amendment. He worried that there may be a violation of the guarantee against cruel and unusual punishment, observing that violation of Georgia’s sodomy statute carried a maximum penalty of twenty years in prison. However, Powell concluded that no breach of the Eighth Amendment existed in this particular case because Hardwick had been neither convicted nor sentenced under the statute.

In his dissent, Justice Blackmun held that the case had nothing to do with a fundamental right to practice homosexual sodomy. Rather, the statute impinged upon an even more basic privilege: the right of an individual to be let alone. Essentially, Georgia’s sodomy law prohibited individuals from making their own choices about what adult consensual sexual activity they may or may not engage in within the privacy of their own homes. This, Blackmun ruled, was an unconscionable infringement of individual rights.

Justice Stevens disagreed with the ruling opinion, noting that a majority governing interest cannot be construed to deny the minority of their rights. Moreover, the Georgia statute was a violation of the liberty that the due process clause of the Fourteenth Amendment protected. The penumbral zone created by the Fourteenth Amendment included homosexual sodomy.

Significance

The legacy of Bowers v. Hardwick was twofold. First, the 5-4 ruling reflected the divisive nature of American attitudes toward homosexuality in the last decades of the twentieth century. Second, the decision set back the movement toward legal equality and gay and lesbian rights for almost two decades. Legal parity between gay and lesbian Americans and their heterosexual counterparts would not be achieved until the Supreme Court decision in Lawrence v. Texas (2003).

Michael Hardwick did not live to see his case overturned. He reportedly died on June 13, 1991, in Gainesville, Florida, after battling AIDS. Michael J. Bowers, the Georgia attorney general, became embroiled in another gay rights litigation matter when he was sued by Robin Shahar in 1991 for illegally withdrawing a job offer after he had learned the lawyer was a lesbian and was planning a commitment ceremony with her partner. Eventually, the Supreme Court refused to hear her case. In 1997, Bowers was exposed for being in an adulterous affair with a secretary while running for governor. He lost his gubernatorial bid.

Bibliography

Caserio, Robert L. “Supreme Court Discourse v. Homosexual Fiction.” In Displacing Homophobia: Gay Male Perspectives in Literature and Culture, edited by Ronald R. Butters, John M. Clum, and Michael Moon. Durham, N.C.: Duke University Press, 1989.

Curry, Lynne. The Human Body on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, Calif.: ABC-CLIO, 2002.

Hickey, Adam. “Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy.” Yale Law Review 111, no. 4 (January, 2002): 993-1030.

Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.

Richards, David A. J. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence: University Press of Kansas, 2005.

Rubenstein, William B., ed. Lesbians, Gay Men, and the Law. New York: New Press, 1994.

“Sodomy Laws Around the World.” http://www .sodomylaws.org.