Supreme Court Sodomy Cases Rulings

Right to Privacy and Consenting Adults: Examining the Sodomy Cases
The 1986 case of Bowers v. Hardwick represents the continued legacy of homophobia of the era. This case demonstrates how homophobia has amounted to longstanding oppression for gay people, and has continually thwarted justice from protecting them or ever serving them. Michael Hardwick was in his late 20s when he was bartending at a gay bar in Georgia. He threw a beer bottle into an outdoor trash can and was written up by the police for public drinking (Bazelon, 2012). The terms of this citation come under suspicion as its possible that the police officer who wrote the ticket was just targeting him because he knew he was gay and worked at a local gay bar. The details of this citation of extremely dubious. The police officer that wrote the wrong day on the citation, ensuring that Hardwick would not show up as a result. This meant that a warrant for Hardwick’s arrest was issued (Eskridge, 2008). An officer arrived at Hardwick’s apartment to deliver the warrant; a person who had been sleeping on the living room couch asserted that they weren’t sure if Hardwick was home. This caused the officer to search the apartment, and he soon found Hardwick in the bedroom, having oral sex with a man: both men were immediately arrested in the name of sodomy (Bazelon, 2012).
In the 1980s Georgia still defined oral or anal sex between people—be them heterosexuals or homosexuals. This was actually not uncommon at the time, as other states had official laws in place: “…but none really enforced them against consenting adults who were acting in private. In fact, the county prosecutor dropped the charges against Hardwick” (Bazelon, 2012). This official dropping of charges was what most people expected at the time. Many of the laws that were officially on the books and intolerant and unjust weren’t actually enforced. Many people presumably viewed them as relics from another time, and while latent homophobia probably stopped people from wanting to change them, they were passively unenforced.
In the case of Hardwick, things became more complex, as the gay rights movement had wanted an opportunity to officially spar with the constitutionality of the sodomy legislation. Leaders of the gay rights movement encouraged Hardwick to sue and he did (Bazelon, 2012). However, the ultimate ruling in this case showed that homophobia ruled the day and still permeated within this highest realm of the judicial system, poisoning the judgment that was handed off (Eskridge, 2008). As stated earlier, the district court dismissed Hardwick’s case, without even needing a trial. Hardwick then won an appeal before the U.S. Court of Appeals for the 11th Circuit, as this panel of judges determined that his innate right to privacy had been sullied (Bazelon, 2012). This ruling was founded in another earlier ruling regarding the individual’s right to privacy and intimate acts. In 1965 the Supreme Court had determined in the case Griswold v. Connecticut, that the state could not block married couples from employing birth control while in the seclusion of their own homes (Bazelon, 2012). To a modern audience, this seems obvious and almost ludicrous that something of this nature would have to go before the official court. However, this serves to demonstrate some of the issues of the era, and the lack of evolution of human thought, along with the general lack of empathy for others. This stunted mentality of human development, justice and tolerance, poisoned Hardwick’s case when it was brought before the Supreme Court, were it was not presented in terms of privacy or other indelible civil rights. Justice Byron White asserted, “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy” (Bazelon, 2012). The answer turned out to be one of the Supreme Court’s most shameful decisions, and a clear representation that justice had not been served. The Court essentially ruled that homosexuals did not have a fundamental right to engage in sodomy. This decision was clearly representative of the fact that the toxic beliefs that characterized homophobia were still alive and well in the eyes of the Court. This was no doubt reflective of a certain portion of society. While this ruling did occur in the mid-1980s (and not say the more archaic periods of the court that characterized the 1950s), it still clearly demonstrates that to think that homosexuals don’t have a right to express themselves in acts of intimacy, was popular in the era. The rulings of the Supreme Court generally express a certain portion of the overall population, one could argue, looking at history.
In this case, the Supreme Court decided to rule with the more antiquated and bigoted viewpoint of the day. White reached his conclusion by arguing that the case against homosexual acts had “ancient roots” in morality, as reflected by the fact that half of the states in the nation had strict laws countering homosexuality. “Never mind that most of the laws, like Georgia’s, addressed heterosexual as well as homosexual acts. White lumped them all together. He also left out the fact that 19th-century prosecutions for sodomy, as far as the records show, were against adult men who’d preyed on children, not adults having consensual sex” (Bazelon, 2012). This again demonstrates how the homophobia of the era only helped in aiding oppression against gay people. The sodomy ways were in place to protect children against pedophiles and other such people who abused children. By persecuting gay people in this manner, it created a mindset that they were comparable to pedophiles. This only helped in sculpting a society that was oppressive to gay people. White used the word “facetious” in arguing that gay people have the gall to think that exercising their rights of privacy or intimate decisions between consenting adults be “‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’” (Bazelon, 2012). If a Supreme Court justice used such a word today in arguing that gay people shouldn’t be allowed to exercise their rights, that judge would be run out of town or lynched. It would be the end of his or her legal career. Regardless, the unjust decision made by the court happened, being a blight on the Supreme Court’s existence. It was a decision that would go on to haunt the court for many years later. Justice Lewis Powell was the judge who gave the fifth vote to this egregious decision and even he admitted years later that he had made a mistake.
Legal scholars and even members of the gay rights movement have chalked up this unjust ruling to simply bad timing, which is one way of looking at it.
To be more realistic, the bad timing was a result of where society was mentally: Hardwick’s challenge of the unconstitutionality of the laws at the time came a bit too premature. The challenge was met by judges who represented a society that had not reached the level of tolerance that exists today. These judges stood for a society that did not have enough consideration to extend their own humanity to gay people. Essentially what the court did was rule that an expression of love and sexuality was against the law, a bigoted notion that we have thankfully evolved away from today. Many legal scholars view that it took the court 17 years to fix their mistake, which came in the form of Lawrence v. Texas (2003). This was the Supreme Court ruling that overturned the bigotry and injustice of the Hardwick case and finally abolished the restrictions against sodomy.
On June 26, 2003 the U.S. Supreme Court ruled 6-3 in Lawrence v. Texas that the constitutional right to privacy protects consensual, adult sexual intimacy in the home. In declaring the Texas "homosexual conduct" law unconstitutional, the court overturned the 1986 Supreme Court decision in Bowers v. Hardwick, which upheld state laws making homosexual sex a criminal offense” (hrw.org, 2003). This ruling demonstrated that the times had finally evolved enough, and the collective and individual philosophies of the era had finally got to place where people were ready to protect gay rights (Eskridge, 2008). It is dreadful that it took so long for the court to fix its error. This ruling by the Supreme Court finally acknowledges the rights to privacy of gay people. In addition, this ruling also acknowledges, in its own passive way, the rights of gay people to express love and sexual intimacy as they see fit.
In conclusion, often times the ruling of Supreme Court Justices are like a barometer of where members of society view certain issues. Racist, misogynistic, or classist decisions generally reflect the leanings of a racist, classist, or misogynistic society. When society is not yet at the point of evolving to become more conscious, tolerant and accepting of others, it generally has judges that unfortunately reflect those short-comings. Examining rulings like this show that if we don’t learn from the past we are condemned to repeat it. Hopefully as a society we can learn from the shame of past egregious decisions so they never find a place in our society again.


References
Bazelon, E. (2012, October 19). Why Advancing Gay Rights is All About Good Timing. Retrieved from http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/10/the_supreme_court_s_terrible_decision_in_bowers_v_hardwick_was_a_product.html
Bowers v. Hardwick. (1986). FindLaw's United States Supreme Court case and opinions. Retrieved from https://caselaw.findlaw.com/us-supreme-court/478/186.html
Eskridge, W. N. (2008). Dishonorable passions: Sodomy laws in America, 1861 - 2003. New York [u.a.: Viking.
HRW.org. (2009, March 17). Lawrence v. Texas. Retrieved from https://www.hrw.org/news/2003/07/01/lawrence-v-texas
Lawrence.v Texas. (2003). Lawrence v. Texas, 539 U.S. 558 (2003). Retrieved from https://supreme.justia.com/cases/federal/us/539/558/case.html