Bowers v. Hardwick

Bowers v. Hardwick, 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, in this case with respect to homosexual sodomy, though the law did not differentiate between homosexual and heterosexual sodomy. It was overturned in _Lawrence v. Texas _ (2003), though the statute had already been struck down by the Georgia Supreme Court in 1998.

The majority opinion, by Justice Byron White , reasoned that the U.S. Constitution did not confer "a fundamental right to engage in homosexual sodomy". A concurring opinion by Chief Justice Warren E. Burger cited the "ancient roots" of prohibitions against homosexual sex, quoting William Blackstone 's description of homosexual sex as an "infamous crime against nature", worse than rape, and "a crime not fit to be named". Burger concluded: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." The senior dissent, by Justice Harry Blackmun , framed the issue as revolving around the right to privacy. Blackmun's dissent accused the Court of an "almost obsessive focus on homosexual activity" and an "overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases."

Scholarly examinations of the case overwhelmingly sided with the dissenting minority. Some of the justices, including Lewis F. Powell , later said that they should not have joined the majority, although Powell also indicated in 1990 that the decision was of little importance.

Seventeen years after Bowers, the Supreme Court directly overruled its decision in _Lawrence v. Texas _, holding that anti-sodomy laws are unconstitutional. In Lawrence, the Supreme Court subsequently based its decision on the American tradition of non-interference with private sexual decisions between consenting adults and on the notions of personal autonomy to define one's own relationships.

Contents

• 1 Background

• 2 Opinion of the Court

  • 2.1 Majority opinion

  • 2.2 Chief Justice Burger's concurrence

  • 2.3 Justice Powell's concurrence

  • 2.4 Dissents

    • 2.4.1 Justice Blackmun's dissent

    • 2.4.2 Justice Stevens's dissent

    • 2.4.3 Subsequent findings

• 3 Subsequent events

  • 3.1 Michael Hardwick

  • 3.2 Jurisprudence

  • 3.3 Justice Powell's later comments

  • 3.4 Repeal of state sodomy laws

    • 3.4.1 Lawrence v. Texas

  • 3.5 Media portrayal

  • 3.6 In popular culture

• 4 See also

• 5 References

• 6 Bibliography

• 7 External links

Background

(https://en.wikipedia.org/w/index.php?title=Bowers_v._Hardwick&action=edit&section=1 "Edit section: Background")

In early July 1982, Atlanta Police Department officer Keith Torick issued Michael Hardwick a citation for public drinking after witnessing Hardwick throw a beer bottle into a trash can outside the gay bar where he worked, allegedly observing him violating the city's ordinance that prohibits drinking in public. Due to a clerical error on the citation issued by Torick, Hardwick missed his court date and Torick obtained a warrant for Hardwick's arrest. Hardwick then settled the matter by paying a $50 fine at a court office, but Torick showed up at Hardwick's house three weeks later, on August 3, to serve the now-invalid warrant.

At the time, an unrelated guest of Hardwick was sleeping on the couch in Hardwick's living room; at around 8:30 am, Officer Torick entered the house (the front door may have been ajar) and awoke the guest, then proceeded down a hallway towards Hardwick's bedroom.

The officer opened the bedroom door, and Torick observed Hardwick and a companion engaged in mutual, consensual oral sex.

Hardwick was angry at the intrusion and threatened to have Torick fired for entering his home. Torick later stated that he "would never have made the case if [Hardwick] hadn't had an attitude problem." Torick then arrested both men for sodomy , a felony under Georgia law that carried a sentence of one to twenty years' imprisonment. District Attorney Lewis Slaton chose not to prosecute the sodomy charge, considering that the warrant had expired, and his own belief that the sodomy law should not be used to prosecute consensual sexual activity.

Hardwick then sued Michael Bowers , the attorney general of Georgia , in federal court for a declaratory judgment that the state's sodomy law was invalid. He charged that as a non-celibate gay man, he was liable to eventually be prosecuted for his activities. The American Civil Liberties Union (ACLU) had been searching for a "perfect test case" to challenge anti-sodomy laws, and Hardwick's cause presented the one they were looking for. They approached Hardwick, who agreed to be represented by ACLU attorneys.

In the lower federal courts, Hardwick was represented by attorney Kathleen Wilde. The case was filed in the United States District Court for the Northern District of Georgia , where it was dismissed, with the Court ruling in favor of Bowers. Hardwick appealed, and the United States Court of Appeals for the Eleventh Circuit reversed the lower court, finding that the Georgia sodomy statute was an infringement upon Hardwick's constitutional rights. The State of Georgia then appealed, and the Supreme Court of the United States granted _certiorari _ on November 4, 1985, to review the case.

Hardwick was represented before the Supreme Court by Harvard Law School Professor Laurence Tribe . Michael Hobbs, assistant attorney general, argued the case for the state. The legality of the officer's entry into Hardwick's home was not contested; only the constitutionality of the sodomy statute was challenged.

A heterosexual married couple was initially named in the suit as plaintiffs John and Mary Doe , alleging that they wished to engage in sodomy but were prevented from d

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