Law and society: structures, institutions, and social change

Law and Society

Bowers v. Hardwick (1986) is a significant and highly controversial legal decision regarding Sodomy laws in which the U.S. Supreme Court by a 5-4 majority decision held that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy." The decision meant that engaging in homosexual acts between consenting adults, even in the privacy of their homes, could be considered a criminal offence and the exercise of such law by certain states did not constitute a violation of one's fundamental rights or liberty under the Due Process Clause. The decision was incongruent with a number of court decisions on related matters and was widely considered to be a "mistake" by a number of jurists until it was finally struck down by the Supreme Court, 16 years later in Lawrence v Texas (2003). In this paper I shall discuss in the ways in which the decision in Bowers v Hardwick was flawed and not congruent with certain earlier decisions of the Court.

Briefly, the facts of Bowers v Hardwick reveal that Michael Hardwick was a bartender in a gay bar in Atlanta, Georgia. In 1982, a houseguest of Hardwick unknowingly let a police officer enter Hardwick's home. The officer went to the bedroom where Hardwick was engaged in oral sex with his partner. The men were arrested and charged with violating the Georgia statute that criminalizes sodomy. Charges were later dropped, but Hardwick brought the case forward in the Federal District Court with the purpose of having the sodomy law declared unconstitutional. The court ruled in favor of the defendants for the claimant's failure to state a claim. The Court of Appeals reversed and remanded the decision on the grounds that the Georgia sodomy statute violated the respondent's (Hardwick's) fundamental rights. The Supreme Court held that the Georgia statute was constitutional and reversed.

The controversial nature of the majority decision in Bowers v Hardwick is evident in the 5-4 split decision and the strong dissenting opinion recorded by Justice Blackmun (joined by Justices Brennan, Marshall and Stevens). As stated in Justice Blackman's dissenting note, the case was not really about "a fundamental right to engage in homosexual sodomy" but more about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Justice Blackmun was quoting Justice Brandeis' dissenting opinion in Olmstead v United States (1928), who had gone to state: "To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." When we look at the case from the angle of the right of privacy rather than a right to engage in "homosexual sodomy," the flaw in the judgment becomes evident.

The decision in Bowers v Hardick also conflicts with several other previous decisions of the Court including Griswold v Connecticut (1965) in which the court reversed a decision of the a Connecticut court that had convicted the appellants for violating a state statute makes it a crime for any person to use any drug or article to prevent conception. The appellants were the Executive Director and the Medical Director (a licensed physician) of a firm, "The Planned Parenthood" who had provided medical advice on how to prevent conception and for prescribing a contraceptive device or material. The Court ruled that the Connecticut statute forbidding use of contraceptives violates the right of marital privacy as guaranteed by the Bill of Rights and frowned at the government's right to intrude into the private lives of its citizens. The Griswold decision also underlines the precedence of the fundamental rights over State statutes that intrude upon such rights of individuals. In the Bowers ruling, the Court has asserted that the recognition of "privacy rights" in Griswold (and other similar decisions of the court) does not bear "any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." In its arguments, the court reveals its prejudice against the homosexual act as it equates such acts with other criminal acts and "sexual crimes."