When a police officer came to serve an arrest warrant upon Michael Hardwick for a citation that Hardwick had already paid, the officer found Hardwick in his bedroom engaged in consensual oral sex with another man. Hardwick was arrested and jailed for violating Georgia’s sodomy law, which criminalized oral and anal sex. The American Civil Liberties Union offered to represent Hardwick and challenge the constitutionality of the sodomy law in his criminal trial. But because the Fulton County district attorney opted not to seek a jury indictment against Hardwick, the ACLU instead filed suit in federal court against Georgia Attorney General Michael Bowers. Hardwick and an anonymous married couple John and Mary Doe sought a declaration that Georgia’s sodomy law unconstitutionally violated their right to privacy, which the Supreme Court had recognized in cases such as Griswold v. Connecticut (1965). The trial court summarily dismissed the suit, but the intermediate federal appellate court reversed, rejecting the participation of the Does but agreeing with Hardwick that Georgia’s sodomy law deprived him of liberty without due process of law in violation of the Fourteenth Amendment to the U.S. Constitution.
The U.S. Supreme Court reversed, upholding Georgia’s sodomy law five to four. Justices Lewis Powell, William H. Rehnquist, Sandra Day O’Connor, and Chief Justice Burger joined Justice Byron White’s majority opinion. The Court commenced by framing the issue narrowly. Rather than ask whether the law violated Hardwick’s fundamental right to privacy, the Court posed the threshold question as whether the Constitution ‘‘confers a fundamental right upon homosexuals to engage in sodomy,’’ or, elsewhere, as whether under the Constitution there is ‘‘a fundamental right to engage in homosexual sodomy.’’
Having so narrowly framed the issue, the Court then narrowly construed its precedents. The majority refused to treat them as reflecting some abstract principle, such as the existence of a sphere of personal autonomy presumptively protected against government interference. Instead, the Court described them at a lower level of abstraction, interpreting them only as cases about discrete subjects: the opinion described the relevant cases ‘‘as dealing with child rearing and education; with family relationships; with procreation; with marriage; with contraception; and with abortion’’ (citations omitted). The contraception and abortion decisions might have been seen as protecting a right to engage in non-procreative sexual activity, which would then include the right to engage in oral or anal sex. The Court instead characterized them as involving only a ‘‘right to decide whether or not to beget or bear a child.’’ The opinion contemptuously dismissed the arguments of Harvard law professor Laurence Tribe, who had joined Hardwick’s counsel, as ‘‘at best, facetious.’’ Finally, after deciding for the foregoing reasons that Georgia’s law implicated no fundamental right, the Court subjected the statute to rational basis review, the form of scrutiny most deferential to legislatures, and concluded that a presumed judgment by the people of Georgia that ‘‘homosexual sodomy’’ was immoral was an adequate justification for its sodomy law.
Chief Justice Burger authored a concurring opinion that emphasized the long history of criminalization of sodomy as ‘‘firmly rooted in Judaeo-Christian moral and ethical standards,’’ even going so far as to quote Blackstone’s Commentaries assessment that sodomy was ‘‘an offense of ‘deeper malignity’ than rape.’’ Justice Powell, who later publicly stated that he thought he was probably mistaken in voting to uphold the constitutionality of Georgia’s sodomy law, also wrote a concurring opinion, in which he suggested that since Hardwick had not been prosecuted, he could not raise a viable Eighth Amendment claim of cruel and unusual punishment, but that ‘‘a prison sentence for such conduct—certainly a sentence of long duration—would create a serious Eighth Amendment issue.’’
Justice Harry Blackmun wrote a dissenting opinion joined by Justices William Brennan, Thurgood Marshall, and John Paul Stevens. They criticized the majority for distorting the issue by its ‘‘almost obsessive focus on homosexual activity’’ when Georgia’s ban on oral and anal sex was gender-neutral. Insisting that the Court should interpret constitutional rights with respect to their underlying purposes, the dissenters suggested that its precedents protected privacy rights ‘‘because they form so central a part of an individual’s life.’’ ‘‘[W]hat the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others,’’ they wrote. The dissenters argued that Georgia’s law impinged upon Hardwick’s ‘‘decisional privacy,’’ or autonomy with respect to ‘‘certain decisions that are properly for the individual to make,’’ as well as upon his ‘‘spatial privacy,’’ for in their view, ‘‘the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems . . . to be the heart of the Constitution’s protection of privacy.’’
Justice Stevens also wrote a dissenting opinion, which was joined by Justices Brennan and Marshall. Like the Blackmun dissent, which also analogized Georgia’s sodomy law to the antimiscegenation law invalidated in Loving v. Virginia (1967), the Stevens dissent read Loving as establishing that ‘‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’’ Invoking ‘‘our tradition of respect for the dignity of individual choice in matters of conscience,’’ Stevens interpreted the Court’s privacy decisions in cases such as Griswold and Eisenstadt v. Baird as dictating that married or unmarried different-sex couples enjoy ‘‘the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.’’ But because lesbian, gay, and bisexual persons have the same liberty interests as heterosexually identified people, Stevens concluded that the equal protection clause also prohibited the state from punishing same-sex sodomy. The vast majority of scholarly commentary on Bowers v. Hardwick holds that the dissenters had the better of the arguments.
Nevertheless, the precedent of Bowers v. Hardwick was used by lower courts to justify all manner of discrimination against lesbian, gay, and bisexual persons. If it is constitutional to criminalize ‘‘the conduct that defines the class,’’ courts said, then so is subjecting same-sex couples to greater criminal punishments for engaging in sex with a minor, excluding openly lesbian/gay people from military service, and so on. For seventeen years, Bowers remained part of the law of the land. Finally, though, Bowers was overruled in 2003 by Lawrence v. Texas, which declared Bowers to be ‘‘wrong the day it was decided.’’
DAVID B. CRUZ
References and Further Reading
Cases and Statutes Cited
See also Privacy; Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 588 (2003)