Bowers v. Hardwick 1986

Appellant: Michael J. Bowers, Attorney General of Georgia

Appellee: Michael Hardwick

Appellant's Claim: That state laws making sodomy a criminal offense do not violate the constitutionally protected right to privacy.

Chief Lawyer for Appellant: Michael E. Hobs

Chief Lawyer for Appellee: Laurence Tribe

Justices for the Court: Chief Justice Warren E. Burger, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White

Justices Dissenting: Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens

Date of Decision: June 30, 1986

Decision: The ruling upheld the Georgia law by reasoning that no fundamental right has been granted to homosexuals to engage in sodomy and, therefore, the law did not violate the right of privacy guaranteed under due process.

Significance: The decision left existing state sodomy laws intact. The ruling dealt a major setback to the gay and lesbian civil rights movement since their opponents could argue that granting civil rights to persons who regularly commit the criminal act of sodomy could not be justified.

In 1986 half a million gay men and lesbians marched in Washington, D. C. protesting the U.S. Supreme Court decision in Bowers v. Hardwick (1986), the Court's first ruling on gay rights. The decision upheld a Georgia law forbidding sodomy and was considered a major setback to the gay rights movement. Sodomy is sexual activity common among gays and lesbians. The terms gay and lesbian refer to people sexually attracted to persons of their same sex. The term gay usually refers to men and lesbian always refers to women. Homosexual is a term which refers to either gay men or lesbians.

Sodomy had long been considered a criminal offense in state and local law. Since criminal sodomy laws were aimed at homosexuals, gay men and lesbians kept their sexual orientation (the sexual preference of an individual for one sex or the other) a secret. This secret existence in which homosexuals found themselves was referred to as being "in the closet." Encouraged by successes of black Americans and women during the 1960s' Civil Rights Movement and outraged by an incident, known as Stonewall, at a New York bar in 1969, homosexuals began to "come out." This meant identifying themselves as gay or lesbians and openly working for legal and social equality. The gay rights movement made the repeal (to abolish) of sodomy laws a primary goal.

Michael Hardwick's Private Affairs

Michael Hardwick was a gay bartender living in Atlanta, Georgia. When Hardwick failed to pay a fine for drinking in public, a police officer came to his home to serve a warrant (a written order) against him. The officer gained entrance to the home by another tenant who did not know if Hardwick was home. The officer entered Hardwick's bedroom where he found him having sex with his partner. Hardwick was arrested and charged with committing sodomy with a consenting (willing) male.

Hardwick brought suit in Federal District Court challenging the constitutionality of the Georgia sodomy law. The District Court dismissed the suit without a trial. Hardwick then appealed to the U.S. Court of Appeals for the Eleventh Circuit. The court of appeals found the law violated Hardwick's fundamental right to privacy protected by both the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The Ninth Amendment provides that even though certain rights are not specifically named in the U.S. Constitution, they could still be considered fundamental rights held by the people. The Fourteenth Amendment prohibits states from denying citizens "life, liberty or property, without due process of law [fair legal proceedings]." In 1965 the U.S. Supreme Court case, Griswold v. Connecticut, dealing with birth control or contraception, had clearly established a constitutional right to privacy as part of the fundamental rights in the Ninth Amendment. The right to privacy was protected by the Due Process Clause of the Fourteenth Amendment. This right in private matters was again stated in Roe v. Wade (1973) which dealt with abortion. The court of appeals agreed with Hardwick that the Georgia law violated his fundamental rights because his homosexual actions were in the privacy of his own home and, therefore, beyond the reach of any state interference. In this light, the court of appeals returned the case to the district court, ordering it to try the case.

Before the trial could begin, Michael Bowers, the Georgia attorney general, appealed to the U.S. Supreme Court for a review of the court of appeals' ruling. The Supreme Court agreed to hear the case.

A Fundamental Right?

Justice Byron R. White, writing the Court's opinion, stated the question before the Court,

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.

In a 5-4 decision in favor of Georgia, the Court rejected the thinking of the court of appeals. First, the Court dismissed the idea that its previous rulings on the privacy issues of contraception and abortion had anything to do with this case. In fact, White drew a sharp distinction between the previous cases and homosexual activity:

Accepting the decisions in these cases . . . we think it evident [clear] that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy. . . No connection between family, marriage, or procreation [to have a baby] on the one hand and homosexual activity on the other hand has been demonstrated.

White next rejected the argument that engaging in homosexual activity was a fundamental right protected by the Due Process Clause. Justice White wrote that fundamental rights or liberties are deeply rooted in U.S. history and tradition. If they did not exist, justice would not exist. He found that sodomy was never rooted in this Nation's history. Quite the opposite, it had long been prohibited by the states. According to White,

Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today [1986], 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private between consenting [willing] adults.

Likewise, certainly justice and order would still exist even if sodomy did not. White observed, for the Court to declare sodomy a fundamental constitutionally protected right and negate all the state laws would be taking on the role of the legislative branch. Making decisions on how to govern the country is constitutionally a legislative activity in which the Court may not engage.

Don't Go Down That Road

White further addressed the issue that Hardwick's homosexual conduct was carried out in the privacy of his home. White stated that not all acts just because they are done in private are legal. For example, White wrote, " . . . the possession and use of illegal drugs, do not escape the law where they are committed at home." White explained the homosexual conduct could not be allowed "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."

A Bitter Dissent

In a bitter dissent, Justice Harry A. Blackmun, the principle author of Roe v. Wade, commented the Court's decision "makes for a short opinion, but it does little to make for a persuasive one." He stated that this case was not so much "about a fundamental right to engage in homosexual sodomy" but instead about the most prized right of civilized man, " . . . namely, the right to be let alone." Blackmun eloquently wrote:

SODOMY LAWS

S odomy laws generally prohibit certain sexual acts, even between willing adults in the privacy of their homes. Punishment ranges from $200 fines to twenty years imprisonment. Once all fifty states and Puerto Rico had sodomy laws but many have been repealed or struck down in the courts. In 1999 thirteen states and Puerto Rico still had sodomy laws which applied to both same-sex (homosexual) and opposite-sex (heterosexual) activities. Five states, Arkansas, Kansas, Missouri, Oklahoma, and Texas, had sodomy laws targeting only homosexuals.

Sodomy laws have frequently been used to deny gay men and lesbians their civil rights. For example, some courts under the laws have justified removing children from gay or lesbian parents. Occasionally, cities have used the laws to arrest gay individuals for merely discussing sex in conversations, conversations which heterosexuals have daily.

In November of 1998, the Georgia Supreme Court struck down its 182-year-old sodomy law, the same law the U.S. Supreme Court upheld in the 1986 case of Bowers v. Hardwick. The Georgia court ruled the law violated the right to privacy protected by the state's constitution. Chief Justice Robert Benham wrote, "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual [willing], private, adult sexual activity."

individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many right ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.

A Mistake

Justice Lewis F. Powell held the swing vote in the decision. At first Powell had been in favor of striking down the Georgia law as it carried a prison sentence with conviction. This he reasoned would violate the Eighth Amendment as "cruel and unusual punishment." However, because Hardwick had not actually even been tried, "much less convicted and sentenced," Powell could not justify overturning the state law. Powell, therefore, became the fifth justice to vote against striking down the Georgia law. He later publicly confessed that changing his vote in Bowers had probably been a mistake.

Quest For Civil Rights Derailed

Deciding that private homosexual activities did not fall under the right of privacy guaranteed under due process dealt a severe blow to the gay and lesbian rights movement and their quest for civil rights. Gay rights opponents began to charge that it was ridiculous to think about granting civil rights to persons who regularly practiced criminal acts. The Supreme Court would not face gay rights issues again until 1996 in Romer v. Evans when the decision would be different. In Romer the Court granted constitutional protection against government or private discrimination based on sexual orientation. It was hailed as the first key victory in the struggle for gay and lesbian civil rights. The decisions in Bowers and then in Romer reflected America's changing standards toward the gay and lesbian communities.

Suggestions for further reading

American Civil Liberties Union. [Online] Website: http://www.aclu.org (Accessed on July 31, 2000).

Lambda Legal Defense and Educational Fund. [Online] Website: http://www.lambdalegal.org (Accessed on July 31, 2000).

National Gay and Lesbian Task Force. [Online] Website: http://www.ngltf.org (Accessed on July 31, 2000).

Richards, David A. J. Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law. Chicago: University of Chicago Press, 1998.