Bowers v. Hardwick
Encyclopedia
Bowers v. Hardwick, , is a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...

 sodomy law
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...

 criminalizing oral
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...

 and anal sex
Anal sex
Anal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...

 in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled the decision in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...

, 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
Gay bar
A gay bar is a drinking establishment that caters to an exclusively or predominantly gay, lesbian, bisexual, and transgender clientele; the term gay is used as a broadly inclusive concept for LGBT and queer communities...

 in which he worked; the specific citation was for public drinking. 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.

He placed both men under arrest for sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...

, 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
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

, which would have been a prerequisite to any trial or punishment for the offense. Hardwick then sued Michael Bowers
Mike Bowers
-Early Life:Michael Joseph Bowers was a long-serving Attorney General of Georgia before switching parties and mounting an unsuccessful campaign for Georgia Governor. He now practices law with Balch & Bingham in Atlanta, Georgia.Bowers graduated from the United States Military Academy in 1963 and...

, the attorney general
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...

 of Georgia, in federal court for a declaration
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...

 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
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...

 (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. 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
United States District Court for the Northern District of Georgia
The United States District Court for the Northern District of Georgia is a United States District Court which serves the residents of forty-six counties...

, 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
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...

 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
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

 on November 4, 1985 to review the case.

Hardwick was represented before the Supreme Court by Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

 Professor Laurence Tribe
Laurence Tribe
Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....

. Michael Hobbs, assistant attorney general, argued the case for the State.

Decision

The issue in Bowers involved the right of privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...

. Since 1965's Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...

the Court had held that a right to privacy was implicit in the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 clause of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

. 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
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...

, 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
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...

. 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
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...

, 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
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...

, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...

, 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."

Concurrences and dissents

The short concurring opinion by Chief Justice Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...

 emphasized historical negative attitudes toward homosexual sex, quoting Sir William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

'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
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...

 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
Paris Adult Theatre I v. Slaton
Paris Adult Theatre I v. Slaton, . The U.S. Supreme Court upheld a state court's injunction against the showing of obscene films in a movie theatre restricted to consenting adults. The Court distinguished the case from Stanley v. Georgia, 394 U.S...

, 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
Coming out
Coming out is a figure of speech for lesbian, gay, bisexual, and transgender people's disclosure of their sexual orientation and/or gender identity....

 gay
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....

 Pam Karlan (then a law clerk for Blackmun and now professor of law at Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...

). 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."

Lewis Powell
Lewis Franklin Powell, Jr.
Lewis Franklin Powell, Jr. was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was also widely well regarded by contemporaries due to his personal good manners and...

 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. In a concurring opinion, Powell voiced doubts about the compatibility of Georgia's law with the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...

 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. In 1990, three years after retiring from the Court, Powell told a group of New York University
New York University
New York University is a private, nonsectarian research university based in New York City. NYU's main campus is situated in the Greenwich Village section of Manhattan...

 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." However, Powell believed that the case was one of little importance and spent only thirty minutes thinking about it.

According to Daniel Richman, former clerk for Thurgood Marshall, Marshall's friendship with Bayard Rustin
Bayard Rustin
Bayard Rustin was an American leader in social movements for civil rights, socialism, pacifism and non-violence, and gay rights.In the pacifist Fellowship of Reconciliation , Rustin practiced nonviolence...

 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
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...

."

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
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...

, 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
Powell v. Georgia
Powell v. State of Georgia, S98A0755, 270 Ga. 327, 510 S.E. 2d 18 was a decision of the Supreme Court of Georgia. Powell was charged with a complaint in which he had performed non-consensual oral sex upon a 17-year-old female in his house. The jury acquitted him of the non-consensual portion of...

, 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
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...

539 U.S. 558 (2003). Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...

 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
    Judicial review
    Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

  • Baker v. Wade
    Baker v. Wade
    Baker v. Wade 563 F.Supp 1121 , rev'd 769 F.2nd 289 cert denied 478 US 1022 is a federal lawsuit challenging the legality of the sodomy law of the state of Texas. Plaintiff Donald Baker contended that the law violated his rights to privacy and equal protection...

  • Lawrence v. Texas
    Lawrence v. Texas
    Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...

  • 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
    Sodomy laws in the United States
    Sodomy laws in the United States, which outlawed a variety of sexual acts, were historically universal. While they often targeted sexual acts between persons of the same sex, many statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes as well,...


External links

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