Bowers v. Hardwick

Bowers v. Hardwick,, was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later the Supreme Court directly overruled Bowers in Lawrence v. Texas, (2003), and held that such laws are unconstitutional.

Background
In August 1982, police officers entered the bedroom of Michael Hardwick to serve a summons for throwing out a beer bottle which he had thrown in a trash can located directly outside of the gay bar in which he worked. 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 sleeping on the couch, who opened the door to the officer and allowed him into the apartment. After walking around, Officer Torick observed Hardwick's bedroom door slightly opened and proceeded into the room where Hardwick and a male companion were engaged in mutual, consensual oral sex.

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. 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 5 years for a "perfect test case" and Hardwick's cause presented the one they were looking for. They approached Hardwick and asked they be allowed to pursue his cause. After weighing the issues, Hardwick allowed the ACLU to fight on his behalf, and they began to work on the case. In the Federal Courts, Hardwick was represented by Kathleen Wilde. Following a decision by the lower federal court in Hardwick's favor, the case ultimately reached the Supreme Court as the State of Georgia wished to overturn that decision.

Hardwick was represented before the Supreme Court by Harvard Law School Professor Laurence Tribe, widely considered one of the most effective liberal constitutional law advocates in the nation. 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 creates "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 by Justice White was joined by Chief Justice Burger and Justices Lewis F. Powell, Jr., William H. Rehnquist and Sandra Day O'Connor. Justice Powell and Chief Justice Burger also wrote separate concurring opinions. Justices William J. Brennan, Thurgood Marshall and John Paul Stevens joined Justice Blackmun's dissenting opinion. In addition, Justice Stevens wrote his own dissenting opinion, which was joined by Justices Brennan and Marshall.

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." 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 "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.'"

Lewis Franklin Powell, Jr. was considered the deciding vote during the case. In a concurring opinion Powell voiced doubts about the compatibility of Georgia's law with the Eighth Amendment to the United States Constitution 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. Three years after retiring from the Court, Justice Powell publicly said that he regretted his vote in Bowers.

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.

Some contend that Bowers should be understood in the historical context of the AIDS epidemic, which was in a relatively early stage in 1986. In the 1980s, the epidemic had occasioned a large amount of press coverage about homosexuality, which previously had been a taboo topic in the U.S. mass media.

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 state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct (at least among adults), in the U.S. Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003). However, consensual oral sex between teenagers was still a felony crime in Georgia as late as 2004 when Genarlow Wilson, a 17-year-old boy, received a mandatory 10-year minimum sentence for child molestation when he was given consensual oral sex by a 15-year-old girl. Wilson's case received so much attention that the law was changed to downgrade the crime from a felony to a misdemeanor. On October 26, 2007, the Georgia Supreme Court ordered Wilson released after concluding that his 10-year sentence violated the Eighth Amendment protection against cruel and unusual punishment.