June 30, 1986– Bowers v. Hardwick
“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Justice Anthony Kennedy on Lawrence v. Texas (2003)
Last year at this time we had monumental decisions handed down by SCOTUS: the saving of The Affordable Care Act Of 2012, striking down part of the Three-Strikes-You’re-Out Law, deciding that Death By Lethal Injection was not so cruel or unusual, and of course, deciding in favor of the civilization destroying right of gay people to enjoy Marriage Equality with Obergefell v. Hodges.
The Supremes term starts in October, and for nine months they proceeded at a stately pace. But this week, always felt that anxiety dream where you are in a play and have forgotten your lines and you are standing naked in front of an audience, blank faced, and open mouthed. The court gave us monumental decisions in favor of Affirmative Action, deadlocked in a case challenging President Obama’s Immigration Policy, made it harder to prosecute public officials for corruption, and reaffirmed and strengthened constitutional protections for Abortion Rights.
As an example to 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 case. It happened on this day, 30 years ago.
Michael Hardwick was a bartender in a gay bar in Atlanta who was targeted by a police officer for harassment, because that is what the cops did in those days. It was 1982, and an unknowing house guest let a police officer into Hardwick’s home. The cop walked to the bedroom of the house where he discovered Hardwick engaged in oral sex with his partner. That’s right, less than 30 years ago, you could be arrested for giving a blowjob.
The two men were arrested on the charge of sodomy. The charges were later dropped, but Hardwick brought the case forward with the purpose of having the Georgia Sodomy Law declared unconstitutional.
Bowers v. Hardwick was a response to a particularly insulting police action and repeal advocates had hoped that the case would put an end to antiquated sodomy laws in the USA when it reached the Supreme Court. Unfortunately, in a 5-4 decision SCOTUS found that nothing in our 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 the invalidation of all sodomy laws to denying gay people any right of privacy. In October of 1990, three 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, and 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, pardon 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 supposedly for good, although I have my own laws when it comes to sodomy.
Michael Hardwick didn’t live to see 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.
The Bowers in Bowers v. Hardwick was Georgia’s Lieutenant Governor. His political ambitions were derailed when, during his campaign for the 1998 Georgia Republican gubernatorial nomination, he was discovered to have been involved in a decade-long extramarital affair with his secretary, a former Playboy Bunny.
If you kids are still making your choices for the election on November 8, remember that the next President and Congress will choose at least one, possibly three, new Supreme Court Justices and their decisions will have an undeniable impact on our the law of the land. That Fat-Fingered Vulgarian has already unveiled a list of 11 judges he would consider nominating to fill the seat of the late Justice Antonin “Cha Cha” Scalia and at the top of that list is Gary Busey, to be named on November 9th.
