Bowers v. Hardwick

The issue in Bowers involved the right of privacy. Since 1965's Griswold v. Connecticut,[15] 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".[2] 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.[16][17] 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.[18][19] 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.[20]

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,[21] which was reversed by the Court after only three years.[22]

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.[23][24] 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."[25]

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.[15] Nor could the law be applied to unmarried heterosexuals, as Eisenstadt v. Baird[26] 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".[27]

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.[28]

Bowers was decided at a time when the court's privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wade[29] had 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.[30]

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.[31]

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,[32] 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."[33] 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.[34]

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.[35][31]

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,[4] 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."[36]

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.[37]

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.[38]

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 on October 7, 2019.[39]

The last name of the satirical character Betty Bowers, played by Deven Green, is taken from this case.[40]

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.