Bowers v. Hardwick
Supreme Court of the United States
Argued March 31, 1986 Decided June 30, 1986
Full case name: Michael J. Bowers, Attorney General of Georgia v. Michael Hardwick, et al. Citations: 478 U.S. 186; 106 S. Ct. 2841; 92 L. Ed. 2d 140; 1986 U.S. LEXIS 123; 54 U.S.L.W. 4919 Prior history: Dismissed, D. Ga.; reversed and remanded, 760 F.2d 1202 (11th Cir. 1985); rehearing en banc denied, 765 F.2d 1123, (11th Cir. 1985); cert. granted, 474 U.S. 943 (1985) Subsequent history: Vacated and remanded, 804 F.2d 622 (11th Cir. 1986)
Holding
A Georgia law prohibiting sodomy was valid because there was no constitutionally protected right to engage in homosexual sodomy. Eleventh Circuit reversed and remanded.
Court membership
Chief Justice: Warren E. Burger Associate Justices: William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr., William Rehnquist, John Paul Stevens, Sandra Day O'Connor
Case opinions
Majority by: White Joined by: Burger, Powell, Rehnquist, O'Connor Concurrence by: Burger Concurrence by: Powell Dissent by: Blackmun Joined by: Brennan, Marshall, Stevens Dissent by: Stevens Joined by: Brennan, Marshall
Laws applied
U.S. Const. amend. XIV; Ga. Code § 16-6-2 (1984)
Overruled by
Lawrence v. Texas, 539 U.S. 558 (2003)

Bowers v. Hardwick, 478 U.S. 186 (1986), was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later the Supreme Court directly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and held that such laws are unconstitutional. (See judicial review.) Image File history File links Seal_of_the_United_States_Supreme_Court. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... The U.S. District Court for the Northern District of Georgia serves the residents of forty-six counties. ... The Federal Reporter is a case law reporter in the United States that is published by West Publishing. ... The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts: Middle District of Alabama Northern District of Alabama Southern District of Alabama Middle District of Florida Northern District of Florida Southern District of Florida Middle... En banc or in bank is a term used to refer to the hearing of a case by all the judges of a court. ... Certiorari (pronunciation: sÉ™r-sh(Ä“-)É™-ˈrer-Ä“, -ˈrär-Ä“, -ˈra-rÄ“) is a legal term in Roman, English and American law referring to a type of writ seeking judicial review. ... Warren Earl Burger (September 17, 1907 – June 25, 1995) was Chief Justice of the United States from 1969 to 1986. ... William J. Brennan, official portrait, 1976. ... Byron Raymond White (June 8, 1916 – April 15, 2002) won fame both as a football running back and as an associate justice of the Supreme Court of the United States. ... Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American jurist and the first African American to serve on the Supreme Court of the United States. ... Justice Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. ... Lewis Franklin Powell, Jr. ... William Hubbs Rehnquist (October 1, 1924 – September 3, 2005) was an American lawyer, jurist, and a political figure who served as an Associate Justice on the Supreme Court of the United States and later as the Chief Justice of the United States. ... John Paul Stevens (born April 20, 1920) is currently the most senior Associate Justice of the Supreme Court of the United States. ... Sandra Day OConnor (born March 26, 1930) is an American jurist who served as the first female Associate Justice of the Supreme Court of the United States from 1981 to 2006. ... Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments (known as the Reconstruction Amendments), first intended to secure rights for former slaves. ... The official Georgia Code consists of statutes enacted by the General Assembly of the State of Georgia. ... Holding A Texas law prohibiting homosexual sodomy violated the privacy and liberty of adults, under the Due Process Clause of the Fourteenth Amendment, to engage in private intimate conduct. ... Year 1986 (MCMLXXXVI) was a common year starting on Wednesday (link displays 1986 Gregorian calendar). ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... sodomy law is a law that defines certain sexual acts as sex crimes. ... Oral sex consists of all sexual activities that involve the use of the mouth, which may include use of the tongue, teeth, and throat, to stimulate genitalia. ... Roman men having anal sex. ... Holding A Texas law prohibiting homosexual sodomy violated the privacy and liberty of adults, under the Due Process Clause of the Fourteenth Amendment, to engage in private intimate conduct. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Year 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... Judicial review is the power of a court to review the actions of public sector bodies in terms of their constitutionality. ...

Background

In August of 1982, police officers entered the bedroom of Michael Hardwick to serve a summons for throwing out a beer bottle which he had actually thrown in the trash can located directly outside of the gay bar in which he worked^{[citation needed]}. Police Officer Torick hand processed the ticket and had marked out the court date of Tuesday and wrote in Wednesday. When Hardwick didn't show up for his Tuesday courtdate, an arrest warrant was issued personally by officer Torick. The officer then proceeded to Hardwick's apartment to serve the warrant, but he was not home. When Hardwick arrived home and realized that the officer had been there, he immediately went to the courthouse and paid the ticket. The clerk notified Hardwick that it should have been impossible for Torick to be at his apartment that day because it actually takes 48 hours to process a warrant. Several weeks went by and Officer Torick came to the apartment of Hardwick again to serve the (then recalled) arrest warrant. Hardwick had an overnight guest sleeping on the couch, who opened the door to the officer and allowed him into the apartment. After walking around, Officer Torick observed Hardwick's bedroom door slightly opened and proceeded into the room where Hardwick and a male companion were engaged in mutual, consensual oral sex. He placed both men under arrest for sodomy, which was defined in Georgia law to include both oral sex and anal sex. The local district attorney elected not to present the charge to the grand jury, which would have been a prerequisite to any trial or punishment for the offense. Hardwick then sued Michael Bowers, the attorney general of Georgia, in federal court for a declaration that the state's sodomy law was invalid, charging that as an active homosexual he was liable to eventually be prosecuted for his activities. The American Civil Liberties Union (ACLU) had been searching for 5 years for a "perfect test case" and Hardwick's cause presented the one they were looking for. They approached Hardwick and asked they be allowed to pursue his cause. After weighing the issues, Hardwick allowed the ACLU to fight on his behalf, and they began to work on the case. In the Federal Courts, Hardwick was represented by Kathleen Wilde. Following a decision by the lower federal court in Hardwick's favor, the case ultimately reached the Supreme Court as the State of Georgia wished to overturn that decision. Hardwick was represented before the Supreme Court by Harvard Law School Professor Laurence Tribe, widely considered one of the most effective liberal constitutional law advocates in the nation. Michael Hobbs, assistant attorney general, argued the case for the State. Year 1982 (MCMLXXXII) was a common year starting on Friday (link displays the 1982 Gregorian calendar). ... Michael Hardwick (1954 - June 13, 1991) was the respondent in the United States Supreme Court case of Bowers v. ... A gay bar is a drinking establishment that caters exclusively or primarily to a gay and/or lesbian clientele. ... François Elluin, Sodomites provoking the wrath of God, from Le pot pourri de Loth (1781). ... In the American common law legal system, a grand jury is a type of jury which determines if there is enough evidence for a trial. ... Michael J. Bowers was the long serving Attorney General of Georgia before switching parties and mounting an unsuccessful campaign for Governor. ... In most common law jurisdictions, the Attorney General is the main legal adviser to the government, and in some jurisdictions may in addition have executive responsibility for law enforcement or responsibility for public prosecutions. ... A declaratory judgment is a judgment of a court which declares what rights each party in a dispute should have, but does not order any action or result in any legal damages. ... Since its coinage, the word homosexuality has acquired multiple meanings. ... The American Civil Liberties Union, or ACLU, is a non_governmental organization devoted to defending civil rights and civil liberties in the United States. ... Harvard Law School (colloquially, Harvard Law or HLS) is one of the professional graduate schools of Harvard University. ... Laurence Henry Tribe (born October 10, 1941) is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor. ...

Decision

The issue in Bowers involved the right of privacy. Since 1965's Griswold v. Connecticut the Court had held that a right to privacy was implicit in the due process clause of the Fourteenth Amendment to the United States Constitution. In Bowers, the Court held that this right did not extend to private, consensual sexual conduct, at least insofar as it involved same-sex sodomy. Privacy has no definite boundaries and it has different meanings for different people. ... Holding A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. ... In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must normally respect all of a persons legal rights instead of just some or most of those legal rights when the government deprives a person of life... Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments (known as the Reconstruction Amendments), first intended to secure rights for former slaves. ...

The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution creates "a fundamental right to engage in homosexual sodomy." Justice White's opinion for the majority answered this question in the negative, stating that "to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." Byron Raymond White (June 8, 1916 – April 15, 2002) won fame both as a football running back and as an associate justice of the Supreme Court of the United States. ...

The majority opinion by Justice White was joined by Chief Justice Burger and Justices Lewis F. Powell, Jr., William H. Rehnquist and Sandra Day O'Connor. Justice Powell and Chief Justice Burger also wrote separate concurring opinions. Justices William J. Brennan, Thurgood Marshall and John Paul Stevens joined Justice Blackmun's dissenting opinion. In addition, Justice Stevens wrote his own dissenting opinion, which was joined by Justices Brennan and Marshall. Lewis Franklin Powell, Jr. ... William H. Rehnquist has served as the Chief Justice of the United States since 1986. ... Sandra Day OConnor (born March 26, 1930) is an American jurist who served as the first female Associate Justice of the Supreme Court of the United States from 1981 to 2006. ... William J. Brennan, official portrait, 1976. ... Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American jurist and the first African American to serve on the Supreme Court of the United States. ... John Paul Stevens (born April 20, 1920) is currently the most senior Associate Justice of the Supreme Court of the United States. ...

Concurrences and dissents

The short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward sodomy, quoting Sir William Blackstone's characterization of sodomy as "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." Warren Earl Burger (September 17, 1907 – June 25, 1995) was Chief Justice of the United States from 1969 to 1986. ... William Blackstone as illustrated in his Commentaries on the Laws of England. ...

Opponents of sodomy laws criticized Bowers not only for its result but also because of the Court's dismissive treatment of the liberty and privacy interests of gay men and lesbians. A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an "almost obsessive focus on homosexual activity." Justice Blackmun suggested that "[o]nly the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.'" Justice Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. ...

Lewis Powell was considered the deciding vote during the case. In a concurring opinion Powell voiced doubts about the compatibility of Georgia's law with the Eighth Amendment as it related to the prison sentence for conviction, but joined the majority opinion upholding the law against a substantive due process attack. It has been argued that Powell's decision to uphold the law was influenced by the fact that he believed he had never known any homosexuals, unaware that one of his own law clerks was gay. Three years after retiring from the Court, Justice Powell publicly said that he regretted his vote in Bowers. Lewis Franklin Powell, Jr. ... The Bill of Rights in the National Archives. ...

Aftermath

Bowers was decided at a time when the court's privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), had come under heavy criticism and was in doubt. In this historical context, Bowers signaled a reluctance by the then-members of the Court to recognize a general constitutional right to privacy or to extend such a right further than they already had. Holding Texas law making it a crime to assist a woman to get an abortion violated her due process rights. ... For the song by James Blunt, see 1973 (song). ...

Some contend that Bowers should be understood in the historical context of the AIDS epidemic, which was in a relatively early stage in 1986. In the 1980s, the epidemic had occasioned a large amount of press coverage about homosexuality, which previously had been a taboo topic in the U.S. mass media. For other uses, see AIDS (disambiguation). ... Homosexuality refers to sexual interaction and / or romantic attraction between individuals of the same sex. ... Popular press redirects here; note that the University of Wisconsin Press publishes under the imprint The Popular Press. Mass media is a term used to denote a section of the media specifically envisioned and designed to reach a very large audience such as the population of a nation state. ...

State sodomy laws were seldom enforced against private consensual conduct in the decades following the decision, but the Bowers decision was frequently cited in opposition to gay rights programs. The Georgia law upheld in Bowers forbade oral sex and anal sex whether engaged in by people of the same sex or different sexes, but Justice White's decision was restricted to homosexual sodomy. "The only claim properly before the Court, therefore, is Hardwick's challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy." The gay rights movement is a collection of loosely aligned civil rights groups, human rights groups, support groups and political activists seeking acceptance, tolerance and equality for non-heterosexual, (homosexual, bisexual), and transgender people - despite the fact that it is typically referred to as the gay rights movement, members also...

In the years after Bowers was decided, several state legislatures repealed their sodomy laws. In addition, a number of state courts invalidated sodomy laws under privacy or other provisions of their state constitutions. The same sodomy law that was upheld in Bowers was struck down by the Georgia Supreme Court under the Georgia state constitution in the case of Powell v. State, 270 Ga. 327 (1998). The remaining state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct (at least among adults), in the U.S. Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003). However, consentual sodomy between teenagers was still a felony crime in Georgia as late as 2004 when Genarlow Wilson, a 17-year-old boy, received a mandatory 10-year minimum sentence for child molestation when he was given consentual oral sex by a 15-year-old girl. Wilson's case received so much attention that the law was changed to downgrade the crime from a felony to a misdemeanor. Powell v. ... Year 1998 (MCMXCVIII) was a common year starting on Thursday (link will display full 1998 Gregorian calendar). ... Holding A Texas law prohibiting homosexual sodomy violated the privacy and liberty of adults, under the Due Process Clause of the Fourteenth Amendment, to engage in private intimate conduct. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Wilson v. ... Sexual abuse is physical or psychological abuse that involves crimes in most countries. ...

See also

• List of court cases
• List of United States Supreme Court cases, volume 478
• Sex-related court cases
• Sodomy laws in the United States

This is a list of significant court cases. ... This is a list of all the United States Supreme Court cases from volume 478 of the United States Reports: , , , Bowers v. ... There have been a number of cases decided by the United States Supreme Court or by the courts of the various states regarding pornography, sexual activity and what consenting adults are allowed to do in the privacy of their homes (or sometimes, in other places). ... Sodomy laws in the United States, laws primarily intended to outlaw gay sex, were historically pervasive, but have been invalidated by the 2003 Supreme Court decision Lawrence v. ...

External links

• Bowers v. Hardwick, 478 U.S. 186 (1986) (full text with links to cited material)
• The Invasion of Sexual Privacy