Jennifer R. Albright

Queer Theory/Queer Lives

Research Project

Michael J. Bowers v. Michael Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986); The Codification of Government Animus Toward Homosexuals.

In June of 1986, the United States Supreme Court rendered a decision in the much watched case of Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986). At the time, courts were far from unwavering in their support for gay rights. The Supreme Court had upheld sodomy laws, ratified the legality of the military’s barring homosexuals, revoked custody of children from lesbian mothers, and affirmed immigration laws prohibiting known homosexuals from entering the United States (Clendinen and Nagourney 1999, 532). Yet there were also many favorable rulings for homosexuals, on issues big and small in state and lower federal courts (Clendinen and Nagourney 1999, 532).

For example, the U.S. Court of Appeals in Washington had ruled in 1969 that NASA could not fire a budget analyst solely because he was gay (Clendinen and Nagourney 1999, 532). That same year California’s highest court ruled the state could not refuse a teacher’s license to someone solely on the grounds that he or she was a homosexual (Clendinen and Nagourney 1999, 532). The Los Angeles Police Chief and Police Commission were court ordered to issue a permit for the first gay rights march a year later (Clendinen and Nagourney 1999, 532). New York’s highest court issued a decision that led to Lambda Legal Defense and Education Fund being recognized as a legal defense and education fund (Clendinen and Nagourney 1999, 532). In 1975, the United States Civil Service Commission was forced to drop its ban on hiring homosexuals, a lingering reminder of the McCarthy era, and in 1983, the California Supreme Court threw out its lewd conduct law that required persons convicted under the statute – gay men – to register as lifetime sex offenders (Clendinen and Nagourney 1999, 532-33).

The United States Supreme Court had been another matter. In 1967 the Court had upheld the Immigration and Naturalization Service’s authority to prohibit homosexuals from entering the country, under the provision relating to “psychopathic personalities” (Clendinen and Nagourney 1999, 533). Over the next eighteen years, numerable cases involving homosexuality were given short shrift, which made them useless as legal precedent, but also exacerbated the discrimination against and criminalization of homosexuals. This refusal to entertain cases involving homosexuals led to the affirmation of Virginia’s sodomy law as constitutional, the expulsion of a nineteen-year-old Eagle Scout from the Scouts for being gay, and the affirmation of many firings of public school teachers for being homosexual (Clendinen and Nagourney 1999, 533). Yet, the Supreme Court did split 4-4, with one Justice abstaining, in a case where the lower federal court overturned an Oklahoma law that gave the public school broad authority to fire homosexual teachers and even their supporters, thereby affirming the lower court decision (Clendinen and Nagourney 1999, 533). Thus, the Supreme Court’s decision to hear Hardwick’s anti-sodomy challenge was greeted with both anticipation and anxiety by gay rights advocates who were hoping to remove the remaining sodomy laws – laws that effectively codified government animus toward homosexuals. The anticipation and anxiety were propounded by the fact that the homosexual community was reeling from the AIDS crisis, a time when the gay communities saw little help from the general public or the government, but rather, a great deal of ostracism, blatant discrimination, and a twenty-three percent increase in reported violence against gay men and lesbians (Clendinen and Nagourney 1999, 548).

The underlying facts of Bowers v. Hardwick are important in understanding the responses and implications of the Supreme Court’s decision. On August 3, 1982, Keith Torrick, a patrolman, went to Michael Hardwick’s residence to serve him a warrant for failing to pay fines for on a drinking in public citation (Murdoch and Price 2001, 278). Torrick entered Hardwick’s residence, without the consent of Hardwick, but possibly with the permission of a houseguest, to look for Hardwick (Murdoch and Price 2001, 278). When Torrick reached a back bedroom door that was slightly ajar, he pushed it open, only to find Hardwick and another man engaged in oral sex. Torrick announced that Hardwick was under arrest to which he responded, “What are you doing in my bedroom?” (Murdoch and Price 2001, 278) Hardwick was taken into custody and charged with violating the State of Georgia’s sodomy law, which made anal and oral sex a felony punishable by a prison sentence of 1 to 20 years (Murdoch and Price 2001, 278; Bowers v. Hardwick, 478 U.S. at 187-88). As Hardwick’s American Civil Liberties Union (ACLU) legal team prepared to tackle the sodomy charge, the Georgia District Attorney, seeing the potential publicity and constitutional arguments, refused to prosecute (Murdoch and Price 2001, 279).

However, the ACLU had been searching for a “perfect case” to challenge Georgia’s sodomy law, and Hardwick’s arrest presented just such a case. Hence, the ACLU attorneys filed a lawsuit in Federal District Court challenging the constitutionality of the statute on behalf of not just Hardwick, but also “John and Mary Doe,” as the Georgia sodomy law applied to any couple, regardless of sexual orientation (Murdoch and Price 2001, 280; Bowers v. Hardwick, 478 U.S. at 188). The Federal District Court dismissed the case because the United States Supreme Court had held in a 1976 case, Doe v. Commonwealth’s Attorney, that Virginia’s similar sodomy law was constitutional.

Of course, Hardwick’s attorneys moved on up the legal chain and went to the Eleventh Circuit Court of Appeals, who disagreed with the lower court and gave gay Americans a bit of hope. The Eleventh Circuit’s Judge Frank J. Johnson wrote the decision. Johnson held that “the Georgia sodomy statute infringes upon the fundamental constitutional rights of Michael Hardwick” (Murdoch and Price 2001, 280). Johnson also noted that the United States Supreme Court may have been merely dismissing the Virginia Doe case as the gay Virginians in that case lacked standing to sue, rather than ruling on the constitutionality of the Virginia statue (Murdoch and Price 2001, 280). As such, Johnson did not actually pass judgment on the constitutionality of the sodomy law, but rather spelled out the necessary test that needed to be applied to the Georgia sodomy law to determine its constitutionality and sent the matter back to the Federal District Court for rehearing (Murdoch and Price 2001, 282). Bowers, the Georgia Attorney General, requested that the United States Supreme Court intervene, directly calling into question the applicability of the right of privacy to homosexual conduct. The High Court agreed.

Privacy was the heart of the matter from Hardwick’s attorney’s viewpoint. However, the Georgia attorneys offered “as fundamental an attack on homosexuality as had ever been heard in the courts” (Clendinen and Nagourney 1999, 535). Bowers wrote that “homosexual sodomy is anathema of the basic units of our society – marriage and the family” (Clendinen and Nagourney 1999, 548). The Supreme Court agreed and not only upheld Georgia’s sodomy law, but worse, found that homosexuals were not entitled to privacy, or protection from governmental regulation in their bedrooms.

Justice Byron White delivered the opinion of the majority. Chief Justice Burger concurred in a separate opinion, as did Justice Lewis Powell. In fact, Burger’s concurring opinion recited a litany of historical prejudices but was disconcertingly devoid of any legal argument (Agrast 1991; Bowers v. Hardwick, 478 U.S. at 196-198 (concurring opinion)). Justices Blackmun, Brennan, Marshall, and Stevens all vehemently dissented. Their dissenting opinions were much longer than the majority opinion including those concurring opinions of Burger and Powell. The decision was so dramatic and it so divided the Court, that the Justices took the unusual step of reading portions of it from the bench (Clendinen and Nagourney 1999, 536).

Justice White, while acknowledging that the courts had been steadily moving towards recognizing and upholding the privacy rights of American’s when it came to sexual relations, marriage and conception, made it clear that homosexuals were not included. White narrowed the issue to whether homosexual sodomy was entitled to the protection of the constitutional right to privacy, despite the fact that the sodomy law in question clearly applied to homosexuals and heterosexuals, married or not. He characterized the notion that homosexuals were entitled to such consideration by the Constitution as “at best facetious.” (Bowers v. Hardwick, 478 U.S. at 194.)

Blackmun, in his dissent, responded: “This case involves no real interference with the rights of others . . . for the mere knowledge that other individuals do not adhere to one’s value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.” (Bowers v. Hardwick, 478 U.S. at 206.) Blackmun went on to write that he could “only hope that the court will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationship poses a far greater threat to the values most deeply rooted in our nation’s history than tolerance of nonconformity could ever do.” (Bowers v. Hardwick, 478 U.S. at 214.) It was because Blackmun felt that White’s majority opinion betrayed those values that he dissented. (Bowers v. Hardwick, 478 U.S. at 214.) Unfortunately, it would be seventeen years, almost to the day, and a significant change to the bench of the Supreme Court before such reconsideration would occur. (See Lawrence v. Texas, 539 U.S. ____ (2003).)

If the unusual step of reading portions of the Bowers decision from the bench did not signify the reality that the United States Supreme Court had just codified the government’s and high court’s animus towards homosexuals, then the responses to it by the homosexual and anti-homosexual communities as well as the media surely did. The New York Times led its front page with a three-line headline that towered over three columns of text (Clendinen and Nagourney 1999, 536). The night the decision was handed down, nearly three thousand people, mostly homosexuals and their supporters, took the streets of Greenwich Village around Sheridan Square in the largest spontaneous gay protest since the Stonewall Riots (Clendinen and Nagourney 1999, 538). At the gathering Joyce Hunter, a lesbian activist, declared “The message is that we’re second-class citizens” (Clendinen and Nagourney 1999, 533). Later in the week nearly five thousand protesters disrupted the centennial anniversary of the Statue of Liberty attended by Chief Justice Burger and President Ronald Reagan (Clendinen and Nagourney 1999, 538). There was a surge in fundraising for the national gay and lesbian organizations such as the National Gay Task Force (now called the National Gay and Lesbian Task Force) and Lambda Legal Defense.

Interestingly, the decision also created a response from newspaper editorialists, cartoonists, legal commentators, and talk show hosts that seemed to voice displeasure with the United States Supreme Court for condoning the most uncalled for intrusion into private life as well as reinforcing the stereotypes of heterosexuals as sexual puritans. It goes without saying that conservative leaders, like Jerry Falwell, lauded the decision and used it to prop up their anti-homosexual efforts declaring “perverted moral behavior is not accepted practice in this country” (Clendinen and Nagourney 1999, 537). Even years later, religious right-wing groups like the Oregon’s Citizen’s Alliance used the Bowers decision in trying to pass an anti-gay initiative that would have banned state funding to groups that “promoted homosexuality” (Bull and Gallagher 1996, 44-45). The Citizen’s Alliance garnered support for its anti-gay initiatives by arguing that the state had a legitimate right, under Bowers to sustain “public morals” (Bull and Gallagher 1996, 45). However, all this reaction did nothing to haste reconsideration of the Bowers decision. Instead, the implications ranged far beyond making homosexuals sexual criminals.

Bowers seemed to validate and reinforce the pervasive discrimination to which homosexuals have so long been subjected to in housing, employment, public accommodations, custody of children, care of one another, and the privilege of serving in the military, schools, churches and synagogues. At a time when the AIDS epidemic had engendered an alarming increase in violence against gay men and lesbians – an unprecedented twenty-three percent increase (Clendinen and Nagourney 1999, 548) – the unambiguous statement from the nation’s highest authority was that the law did not recognize homosexuals as fit objects of its protection (Argrast 1991). In fact, Bowers seemed to undercut homosexuals on almost every conceivable level. Although sodomy laws were not regularly enforced, when they were enforced they were enforced against homosexuals, predominately gay men. Legal strictures against same-sex sexual acts and relations were invoked in court battles involving discrimination, child custody battlers, and immigration restrictions, as well as raised in legislatures debating gay rights initiatives, licensing of professionals, and other civil and human rights, including marriage, that most American citizens take for granted.

It was predicted that the Bowers decision could have a discouraging effect on homosexuals seeking medical care (Anon. 2004, 161). At a time when gay Americans were dying by the hundreds from AIDS and AIDS related complications, such an implication was alarming. There was already strong denial of even the existence of the disease, or its seriousness by the Reagan administration, who dismissed AIDS as the gay man’s disease and made the most appalling comments regarding the disease in press briefings. To make matters worse, the California Secretary of State certified for submission to voters Proposition 64, a measure that would allow those infected with AIDS to be subject to isolation and quarantined (Clendinen and Nagourney 1999, 540).

Courts around the country continued to use Bowers to continue to promote and justify discrimination against homosexuals and the criminalization of homosexuals. Bowers himself rescinded a job offer to lesbian Robin Shahar as a staff attorney for his Georgia Attorney General’s Office upon learning of her impending commitment ceremony to her partner. Bowers reasoned the public would perceive her as unwilling to enforce the sodomy law, and because she was a lesbian and therefore most likely engaged in oral sex, she was potentially a felon and unfit for a position as an Assistant Attorney General (Biemesderfer 1998, 43). Mississippian David W. lost a battle to obtain custody of his son, who was living in an alcoholic and physically abusive household with his mother and step-father, because of what he and his partner did in bed. The Mississippi court held that the child would be worse off living with a felon who openly admitted to his felonious conduct even though, it admitted, the child would have a more stable home life with his natural father. The court cited Mississippi’s sodomy statute and alluded to Bowers in handing down its decision to prohibit visitation to David in the presence of his long-time partner (Biemesderfer 1998, 43). Similarly, a Virginia judge had denied lesbian Sharon Bottoms custody of her son based upon the presumption that because Bottoms was a lesbian, she has oral sex and therefore is a felon under Virginia’s sodomy law. As such, a felon should not be raising a child (Foley 1998, 9).

Bowers legitimized the non-human classification of homosexuals and unambiguously promoted homosexuals as second-class citizens. It furthered the de-valuing of gay men and lesbians lives and relationships. Moreover, it effectively named sodomy as the criminal act that classified a criminal class of people. Interestingly, however, Bowers also aided in mobilizing homosexuals and their supporters into a long-term movement to chip away and ultimately destroy this notion of second-class citizenry, of homosexuals as a criminal class, and win the equal rights and recognition that gay, lesbian, bisexual, transgendered and intersexed persons deserved. Almost seventeen years to the day from one of the darkest moments in the history of the gay rights movement, a new hope emerged.

In 2003 the United States Supreme Court finally reconsidered its unabashed codification of government animosity towards homosexuals in Lawrence v. Texas. Like Bowers, Lawrence involved an anti-homosexual sodomy law. The 6-3 opinion was just as dramatic as the 5-4 decision in Bowers, and again the unusual step of reading parts of the decision was undertaken. But this time, it was only Justice Antonin Scalia who read from the bench his hysterical twenty-one page dissent. The author of the majority opinion, Justice Anthony Kennedy, issued a striking affirmation of homosexual people’s citizenship, a wholesale rejection of Bowers, a confirmation of privacy rights, and an elaborate discussion of sexual rights under the United States Constitution that could protect sexual dissenters of all stripes. This decision was made possible by the fact that the make-up of the United States Supreme Court had changed since Bowers to allow the vote to fall differently.

The Lawrence decision forcefully rejected morality as a basis for state regulation of sexuality. Justice Kennedy wrote that the law’s obligation is to “define the liberty of all, not to mandate its own moral code.” Interestingly, it was noted by Justice Breyer during argument that “Bowers had proved to be harmful to thousands and thousands and thousands of people . . . not because they’re [necessarily] going to be prosecuted, [but] because they fear it” (Buckly 2003, 54). Breyer also noted that such anti-homosexual-practice laws are “a possible instrument or repression in he hands of prosecutors” (Buckley 2003, 54).

Nevertheless, despite the lauding of the Lawrence decision as a far-reaching victory for the gay rights movement, courts around the nation have successfully found ways around it and continued their codification of homosexuals as unfit and criminal. On January 30, 2004, a Kansas appellate court reaffirmed a 2002 ruling in Limon v. Kansas, which it upheld a 17-year prison sentence for an 18-year-old boy who committed a consensual act of oral sex with another teenage boy (Landau 2004, 16). If the same acts had been committed by a teenage boy and girl, the maximum penalty would have been one year and three months. The Kansas law, called the “Romeo and Juliet law” allows exemption only for heterosexual acts – read, harsher penalties for homosexual acts (Landau 2004, 16). The Kansas court was able to ignore the clear precedent of Lawrence because it held that Lawrence was based on privacy grounds, and the Limon case was based equal protection grounds. Interestingly, the court in Limon noted in its original 2002 ruling that Bowers had a substantial impact on the ruling, yet, in its 2004 reconsideration, the court ignored Bowers altogether (Landau 2004, 16).

Similarly, the Eleventh Circuit Court of Appeals for Florida also danced around Lawrence in its February 2004 decision in Lofton v. Department of Children and Family Services. The Court upheld Florida law barring gay men and lesbians from adopting children. In reaching its decision the Court specifically noted that, although Lawrence “establish[ed] a greater respect than previously existed in the law for the right of consenting adults to engage in private sexual conduct,” the Supreme Court never “characterize[d] this right as ‘fundamental’” (Landau 2004, 17). Presently, courts around the nation are declining to scrutinize their anti-homosexual statues, because the Supreme Court in Lawrence failed to grant “fundamental rights” status to same-sex relationships, and therefore, states believe they are only under a duty to strike down laws that were not “rationally related to a legitimate interest” as opposed to striking down anti-homosexual laws that do not meet a “compelling state interest” (Landau 2004, 17).

Not only are courts ignoring Lawrence, but law enforcement and state prosecutorial entities are as well. Virginia has made it quite clear that it believes that they can constitutionally continue to enforce its sodomy laws, so long as it does not enforce them again persons committing such criminal acts in the privacy of their own home (Ward 2004, 16). The President of the United States has even weighed in – repeatedly and vehemently – against “activist judges” “redefining” family values and marriage and “threatening” the moral order of society. It appears that, in the short term, Lawrence may not have as far-reaching an impact on gay rights as it was portrayed, and that what took seventeen years to allegedly dismantle, may be still very much intact, as well as being a mere seventeen or so months away from being reaffirmed and reasserted with a new vengeance.

Moreover, although Justice Kennedy gave extensive citation of gay and lesbian scholarship that advances an anti-identitarian view of sexuality, which hold that sexual identity is a relatively recent phenomenon of the past 100 years, there are still numerable laws on the books that regulate sexual acts in general. The Bowers Court effectively legitimized its decision by relying heavily on these laws and the “ancient roots” of sodomy laws and laws regulating public morality. (Bowers v. Hardwick, 478 U.S. at 197.) Therefore, it is distressing that Bowers seems to be so easily dismissed and “ancient history.” Many portray Lawrence as dismantling seventeen years of shame, hurt, and unambiguous repression in a single sweep. However, GLBTI Americans and their supporters should never let Bowers and its impact escape from the forefront of their thoughts. To begin, although hysterical, Justice Scalia’s dissent clearly demonstrates the depth and breadth of the codification of government animosity towards homosexuals spelled out in Bowers. Moreover, it is imperative that the GLBTI community and its supporters understand that had the make-up of the Supreme Court not changed significantly between 1986 and 2003, the Lawrence decision might not have happened. Bearing that in mind, the reality that in the next year to eighteen months as many as four Supreme Court Justices may step down and be replaced should make us even more vigilant. Depending upon who is sitting in the White House, could mean the difference between the continued dismantling of the Bowers legacy and the hopes embedded in Lawrence.

Bibliography

Anon. 2004. Constitutional Law – Sexual Behavior – Bowers v. Hardwick. American Journal of Law & Medicine 12:161.

Argrast, M. 1991. Anatomy of a Gay Right Decision. Human Rights: Journal of the Section of Individual Rights & Responsibilities 18:14-17.

Biemesderfer, S. 1998. Tales From the Front Lines. The Advocate. 771:43-44.

Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986).

Buckley, Jr., W.F. 2003. No Gay Things Allowed? National Review May 5, 2003:54-56.

Bull, C. and J. Gallagher. 1996. Perfect Enemies. New York: Crown Publishers.

Clendinen, D., and A. Nagourney. 1999. Out for Good: the struggle to build a gay rights movement in America. New York: Touchstone.

Foley, D. 1998. Sodomy Laws and You. The Advocate 755:9.

Landau, J. 2004. Misjudged: What Lawrence hasn’t wrought. The New Republic February 16, 2004:16-17.

Lawrence v. Texas, 539 U.S. ____ (2003)

Murdoch, J. and D. Price. 2001. Courting Justice: Gay Men and Lesbians vs. the Supreme Court. New York:Basic Books.

Ward, S.F. 2004. Avoiding Lawrence. ABA Journal June 2004:16-17.