Today in 1986: Bowers v. Hardwick is decided

June 30, 2016

Today in Legal HistoryEarlier today, the Pentagon announced the end of its ban on openly transgender people serving in the U.S. military.  Coming only five years after the military’s end to its ban on openly gay and lesbian individuals serving, this ban’s demise marks one of the last such obstructions to military service.

While certainly significant, the ending of the transgender ban is only the latest in a number of legal victories for LGBTQ individuals over the past five years.

Indeed, against the backdrop of such recent decisions as last year’s Obergefell v. Hodges, which struck down state same-sex marriage bans with the proclamation that it is “demeaning to lock same-sex couples out of a central institution of the Nation’s society,” it may be difficult to fathom that only 30 years ago today, the Court upheld a state’s criminal prohibition against sodomy.

That case is the infamous Bowers v. Hardwick , decided on June 30, 1986.

Decided 5-to-4, Bowers began with the entry by an Atlanta police officer into the apartment of Michael Hardwick (on an invalid warrant), wherein the officer accidentally intruded upon Hardwick and a male companion engaging in oral sex.

A verbal altercation ensued between the officer and Hardwick, and the officer arrested him and his companion for sodomy, a felony under Georgia law.  But because the warrant used to enter the home had expired and because the two men were engaging in consensual sexual activity, the district attorney chose not to prosecute.

Nevertheless, Hardwick sued Georgia Attorney General Michael Bowers, seeking to invalidate the state’s criminal sodomy statute as unconstitutional.  The American Civil Liberties Union (ACLU) approached Hardwick and offered to support the case, which was accepted by Hardwick.

The district court dismissed the case, but the Eleventh Circuit Court of Appeals reversed, finding that the statute violated Hardwick’s due process rights under the Fourteenth Amendment.

The state of Georgia appealed to the Supreme Court, which agreed to review the case.  As stated above, the Court ruled against Hardwick.  And between the majority opinion and Chief Justice Warren Burger’s concurrence, there was a bit of inflammatory language against homosexual activity.

The majority, for example, declared the Georgia electorate’s belief that “homosexual sodomy is immoral and unacceptable” to be a valid rationale to support the law (a sentiment later echoed by Justice Antonin Scalia in his dissent in 2003’s Lawrence v. Texas, which overturned Bowers).

Meanwhile, Chief Justice Burger seemingly wrote separately to provide a record of the societies throughout history that have criminalized homosexual sodomy, apparently also feeling the need to point out that “[h]omosexual sodomy was a capital crime under Roman law” (perhaps to insinuate that homosexuals should be thankful for how good they had it?).

In any case, as mentioned earlier, the ruling was overturned 16 years later by Lawrence, which, along with 1996’s Romer v. Evans, marked the beginning of our current legal era, in which disparaging comments about the morality of homosexual activity is predominantly relegated to dissenting opinions.  And pending some massive social and cultural shift, that isn’t likely to change.

As such, Bowers remains a reminder of a bygone era in which the moral degradation of homosexuality by the highest court in the nation wasn’t only acceptable – it was largely expected.