The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Saturday, August 12, 2006

Bowers v. Hardwick (1986)

Listen to Bowers v. Hardwick episode.

Is a state law that makes homosexual acts between two consenting adults a felony constitutional? This was the question the Supreme Court had to answer in deciding whether a Georgia law that criminalized oral or anal homosexual acts was constitutional.

Generally, these types of laws are called sodomy laws. The question was whether consensual sodomy was a protected right of an individual under the 14th Amendment's due process clause. In a sense, this is a follow-up to Griswold v. Connecticut, a case I discussed in an earlier post, in which the Court ruled that there is a right to privacy allowed (in that case, for married couples to receive birth control counseling) and that the government cannot take away this right. Here, 21 years after that 1965 ruling, the question is whether gay sex is included as well.

The case involved Michael Hardwick, a bartender at a gay bar in Atlanta, Georgia. He was targeted by a police officer for harassment. In 1982, an unknowing houseguest let the officer let into Hardwick’s home the officer went to the bedroom where Hardwick was engaged in oral sex with his partner. The men were arrested on the charge of sodomy. Charges were later dropped, but Hardwick brought the case forward with the purpose of having the sodomy law declared unconstitutional. The American Civil Liberties Union (ACLU) was looking for a case to test the Georgia law. This looked like a good one because in addition to the sodomy issue, Hardwick was being harassed by a policeman. The policeman, Mr. Torrick, who served Mr. Hardwick with a warrant on a charge of throwing a beer bottle in a trash can.

Professor Laurence Tribe, the famed Harvard University civil rights lawyer, argued the case before the Supreme Court.

Hardwick won his case in the Federal District Court. However, Bowers, the Attorney General of the state of Georgia, asked the Supreme Court to reverse the lower court decision.

The Supreme Court ruled, in a 5-4 decision, that Bowers was correct and that the Georgia sodomy law was consitutional. After all, if you do a text search on the word "homosexual" or "sodomy" in the Constitution, you won't find a match. And while there is a right to privacy, that right doesn't extend to homosexual sex, consensual or not. The majority opinion, written by Justice Byron "Whizzer" White, states:

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling 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 Burger added, in a concurring opinion:

"To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Justice Louis Powell was the swing vote in thie 5-4 decision. According to an urban legend, he claimed that he had never known any homosexuals, although it turned out later that one of his law clerks was gay.

So the opinion of the highest court of the land was that state sodomy laws were constitutional. In practice, many states, with the gay rights movement becoming more politically prominent, repealed these laws. The Supreme Court eventually joined this chorus and in 2003, in Lawrence v. Texas, ruled that sodomy laws were indeed unconstitutional. It's said that the Supreme Court follows the election returns. In 1986, homosexuality was stigmatized much more, especially with the growth of the AIDS epidemic. In 2003, many elections were decided by the gay and lesbian vote.

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