(idea) by Switchfoot Fri Dec 12 2008 at 23:10:58

Supreme Court of the United States

Michael J. Bowers, Attorney General of Georgia v. Michael Hardwick et al.

478 U.S. 186; 106 S. Ct. 2841; 92 L. Ed. 2d 140; 1986 U.S. LEXIS 123; 54 U.S.L.W. 4919

Argued: March 31, 1986
Decided: June 30, 1986



Bowers v. Hardwick is best known for Justice Byron White's opinion that asserted that the United States Constitution did not confer “a fundamental right upon homosexuals to engage in sodomy.” White specifically separates the claim that there is such a right to engage in homosexual sodomy by rejecting any notion that it is rooted in the fundamental liberties that make up the heritage and tradition of the United States, citing that at the time of ratification, only 5 of the 37 states did not have have statues criminalizing sodomy. “Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation's history and tradition’1 or ‘implicit in the concept of ordered liberty’2 is, at best, facetious.”3

White closes with the comment that, “Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law…We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.”4

White's argument in the majority opinion is arguably weak and perhaps indefensible. Upon rejection of the substantive due process claims, White refuses to truly address the rational basis claims – rational basis is the weakest test of constitutionality that courts in the United States use, involving only the need for a preponderance of a state interest in the matter – to support the Georgia sodomy law. The concurring opinion of then Chief Justice Warren E. Burger which contains the rather unfortunate line – “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”5 – seem only to assure skeptics and those who viewed Bowers as a terrifically bad precedent that a majority of the court was personally repulsed by homosexual conduct and thus released an opinion of little more than an ipse dixit nature.

The holding of the court struck a blow for the work of Justices William J. Brennan, Jr. and William O. Douglas in asserting unenumerated individual rights of Americans. It is difficult to perceive how the right to privacy, given the Court's broad interpretation over the years, could be narrowed to exclude the acts of a singular class. The right to privacy was established under the Court's holding in Griswold v. Connecticut, 381 U.S. 479 (1965). In an opinion written by Doulgas such a right was asserted to exist under the penumbra of other rights enumerated in the federal constitution noting that:

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”6

In a scathing dissent, Justice Harry A. Blackmun decried the majority's “almost obsessive focus on homosexual activity,” noting that it was “particularly hard to justify in light of the broad language Georgia [used in its statute].”7 The Georgia statute in question – Ga.Code Ann. § 16-6-2(a) (1984) – was not limited to focus on the sodomy of homosexuals alone, heterosexual sodomy was equally condemned under the Georgia statute, a fact that seemed irrelevant to the Court which went along with the argument of the State of Georgia which transmuted the argument into one specifically focusing on homosexual conduct.

Blackmun noted the Court's earlier decision in Wisconsin v. Yoder, 406 U.S. 205 (1972) – asserting that the compelling the Amish to send their children to public schools was a violation of the Free Exercise Clause of the First Amendment – “There can be no assumption that today's majority is ‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is odd or even erratic, but interferes with no rights or interests of others, is not to be condemned because it is different.”8 Instead, Blackmun argued that this case was about, like cases before it, the intimate sexual choices that individuals should be empowered to make of their own accord. The deep intimate nature of choices like the right to decide whether or not to have an abortion9 or whether or not to use contraceptives10 were under the fundamental right to privacy that Douglas had established, and the matter before the Court in this instance was no different.

The ACLU and others considered Hardwick's case to be ideal and ripe to present as a test case to the Supreme Court of the United States to overturn these laws. Given the circumstances of Hardwick's arrest, one can only surmise the irony in the Court's decision.

The arrest was made by an Atlanta Police Officer named K.R. Torick who saw Michael Hardwick departing a known gay bar and throwing a beer bottle into a trash can at the bar's entrance. Torick then accosted Hardwick about the beer. In the process Hardwick revealed to Torick that he worked at the bar, and thus, his sexual orientation. Torick eventually issued him a ticket for public drinking, but was far from through with Hardwick. Unfortunately, the ticket had conflicting dates regarding when Hardwick was to show up in court and Torick took the opportunity to personally serve the warrant, not once, but twice on Hardwick.

During his second try to serve the arrest warrant on Hardwick, he was admitted into Hardwick's house by an unwitting friend. Torick caught Hardwick having sex with someone in his bedroom and subsequently took pleasure in arresting and jailing Hardwick for the sodomy violation.11

Bowers may be noted for many things, but it is unlikely it will ever be looked back by many as a good exercise of the enormous power that the Supreme Court of the United States wields over the United States.


The United States Court of Appeals for the Eleventh District is reversed.
OVERRULED BY: LAWRENCE V. TEXAS, 539 U.S. 558 (2003)


Court Vote

Opinion: White; Burger, Powell, Rehnquist, O'Connor joined.

Concurrence: Burger
Concurrence: Powell

Dissent: Blackmun; Brennan, Marshall, Stevens joined.
Dissent: Stevens; Brennan, Marshall joined.

References

  1. Moore v. East Cleveland, 431 U.S. 494 (1977), 503.
  2. Palko v. Connecticut, 302 U.S. 319 (1937), 326.
  3. Bowers v. Hardwick, 478 U.S. 191.
  4. Ibid., 196.
  5. Ibid., 197.
  6. Griswold v. Connecticut, 381 U.S. 479 (1965), 484.
  7. Bowers, 200.
  8. Wisconsin v. Yoder, 406 U.S. 205 (1972), 223.
  9. Roe v. Wade, 410 U.S. 113 (1973).
  10. Griswold.
  11. “Michael Hardwick's Story,” <http://www.qrd.org/qrd/usa/federal/1996/michael.hardwick.background-07.19.96>.

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