June 30, 1986- Bowers v. Hardwick
“Bowers was not correct when it was decided, & it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be & now is overruled.”
Justice Kennedy on Lawrence v. Texas
What a week with monumental decisions handed down by SCOTUS: the saving of The Affordable Care Act, struck down part of the 3 Strikes-You’re-Out Law, decided that Death By Lethal Injection was not cruel or unusual, & of course deciding the civilization destroying right of gay people to be married with Obergefell v. Hodges.
As an example for you kids on of how far we have journeyed, one of the most significant of all legal decisions having to do with gay rights is the infamous Bowers v. Hardwick & it happened on this day, 29 years ago.
Michael Hardwick was a bartender in a gay bar in Atlanta who was targeted by a police officer for harassment. In 1982, an unknowing house guest let a police officer into Hardwick’s home. The cop went to the bedroom where Hardwick was engaged in oral sex with his partner. That’s right, less than 30 years ago you could be arrested for giving a blowjob.
The 2 men were arrested on the charge of sodomy. Charges were later dropped, but Hardwick brought the case forward with the purpose of having the Georgia Sodomy Law declared unconstitutional.
Bowers VS Hardwick was a response to a particularly insulting police action & repeal advocates had hoped that the case would put an end to sodomy laws in the USA when it reached the Supreme Court. Unfortunately, the 5-4 decision found that nothing in the Constitution “would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.”
Justice Lewis Powell was the swing vote in the decision, switching from supporting invalidating all sodomy laws to denying gay people any right of privacy. In October of 1990, 3 years after his retirement, Powell told a group of NYU law students:
“I think I probably made a mistake in that one. That case was not a major case, & one of the reasons I voted the way I did was the case was a frivolous case brought just to see what the court would do” on the subject. A more callous opinion is hard to imagine.”
When SCOTUS makes a bad decision, it doesn’t easily reverse course. The court has a tradition of generally standing by its past rulings, forgive my Latin, but it is called “Stare Decisis”. This case though was overturned by SCOTUS 17 years later, nearly to the day, with Lawrence v. Texas, which struck down all Sodomy Laws, although I have my own laws when it comes to sodomy.
Michael Hardwick didn’t live to see the SCOTUS overturn sodomy laws or grant Marriage Equality to all 50 states. He died in Gainesville, Florida, on June 13, 1991, from complications from HIV. His obituary carried no mention of his sexual orientation or his role in the famous case that bears his name.
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