Today In History, 1986: Supreme Court Upholds Sodomy Laws in Bowers v. Hardwick

Jim Burroway

June 30th, 2016

Michael Hardwick

Michael Hardwick

30 YEARS AGO: It all began with a beer bottle thrown into a trash can in outside a gay bar 1982. A police officer saw Michael Hardwick do it and cited him for public drinking. When Hardwick failed to arrive for his court date, a warrant was issued for his arrest. Several weeks later — after Hardwick realized his error and paid the ticket — a police officer went to Hardwick’s apparent to serve the arrest warrant. The police officer entered the apartment (accounts differ on how he got in), and discovered Hardwick and a male companion engaged in oral sex, an act which fell under Georgia sodomy law (see Aug 3). Both men were arrested, but the local district attorney decided not to press charges. Hardwick then sued Georgia Attorney General Michael Bowers in federal court seeking to overturn the state’s sodomy law. The ACLU agreed to take the case on Hardwick’s behalf.

Georgia Attorney General Michael Bowers

Georgia Attorney General Michael Bowers

Despite Georgia’s sodomy law being rarely enforced, Bowers vigorously defended Georgia right to prosecute individuals under that law.  “Certainly the statute is on the books, and any statute that is on the books as a criminal statute of this state should be enforced, and that’s what it’s for,” he told a reporter. He also had another reason for keeping it: “We know to a certainty that AIDS is transmitted in great measure by homosexual conduct. The thought of removing that statute from the books which prohibits homosexual conduct does not seem all that timely to me.”

But Kathleen Wilde, a spokesperson for the Georgia ACLU countered that argument. “If you criminalize the conduct, people won’t report, people will lie, there’ll be no capacity to deal with the spread of the disease,” she said in an interview.

A federal judge in Atlanta dismissed the case, siding with the Attorney General. Hardwick appealed to the Eleventh Court of Appeals, which reversed the lower court’s ruling. Bowers then appealed the case to the U.S. Supreme Court, which ruled on this date — during pride week — in 1986 that Hardwick’s right to privacy did not extend to private, consensual sexual conduct — at least as far as gay sex was concerned. Justice Byron White, writing for the majority, barely concealed his contempt for gay people. He wrote, “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.” Chief Justice Warren Berger, in a concurring opinion, piled on: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

HardwickProtest

Protests after the ruling

Justice Lewis Powell was considered the deciding vote. It has been reported that he originally voted to strike down the law but changed his mind after a few days. In 1990, after Powell had retired three years earlier, he told a group law students that he considered his opinion in Bowers was mistake (see Oct 18). “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.” His mistake would remain the law of the land for another seventeen years, until Bowers itself was held to be “not correct” in Lawrence v. Texas (see Jun 26).

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