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Bowers v. Hardwick


Bowers v. Hardwick

Bowers v. Hardwick
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 (more)
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)
A Georgia law classifying homosexual sex as illegal sodomy was valid because there was no constitutionally protected right to engage in homosexual sex. Eleventh Circuit reversed and remanded.
Court membership
Case opinions
Majority White, joined by Burger, Powell, Rehnquist, O'Connor
Concurrence Burger
Concurrence Powell
Dissent Blackmun, joined by Brennan, Marshall, Stevens
Dissent Stevens, joined by Brennan, Marshall
Laws applied
Ga. Code § 16-6-2 (1984)
Overruled by
Lawrence v. Texas (2003)

Bowers v. Hardwick, 478 sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals.[1]

The majority opinion, written by Justice Byron White, argued that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”.[1] A concurring opinion by Chief Justice Warren E. Burger cited the “ancient roots” of prohibitions against homosexual sex, quoting William Blackstone’s description of homosexual sex as an “infamous crime against nature”, worse than rape, and “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.”[2] Justice Lewis F. Powell later said he regretted joining the majority, but thought the case of little importance at the time.

The dissent, authored by Justice Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun’s dissent accused the Court of an “almost obsessive focus on homosexual activity and an “overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases”. In response to invocations of religious taboos against homosexuality, Blackmun wrote: “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”[3]

Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled its decision in Lawrence v. Texas, 539 U.S. 558 (2003), and held that anti-sodomy laws are unconstitutional.


  • Background 1
  • Decision 2
    • Concurrences and dissents 2.1
  • Effects 3
  • See also 4
  • References 5
  • Bibliography 6
  • External links 7


In August 1982, an Atlanta police officer issued Michael Hardwick a citation for public drinking after witnessing Hardwick throw a beer bottle into the brush along Monroe Ave after observing him violating the city’s ordinance that prohibits drinking in public. When Hardwick did not appear in court, the court issued an arrest warrant for Hardwick. A few days later, officers went to Hardwick’s apartment to serve the warrant.[4] Hardwick’s roommate was sleeping on the couch in the living room. The roommate invited officers in and directed them down the hall to Hardwick’s room. The door was open and the officers observed Hardwick and a companion engaged in mutual, consensual oral sex.[4]

Hardwick became hostile and threatened to have officers fired for entering his home. Both men were placed under arrest for declaration that the state’s sodomy law was invalid. He charged that as an active homosexual, he was liable to eventually be prosecuted for his activities.

The Supreme Court of the United States granted certiorari on 4 November 1985, to review the case.

Hardwick was represented before the Supreme Court by Harvard Law School Professor Laurence Tribe. Michael Hobbs, assistant attorney general, argued the case for the State.

The legality of the officer’s entry into Hardwick’s home was not contested; only the constitutionality of the sodomy statute was challenged.


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 homosexual sex. The 5–4 majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution confers “a fundamental right upon homosexuals to engage in sodomy.” The opinion 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.” White was joined by Justices William Rehnquist, Sandra Day O'Connor, Warren E. Burger, and Lewis F. Powell in upholding the anti-sodomy law, while Justices Harry Blackmun, William J. Brennan, Jr., Thurgood Marshall, and John P. Stevens dissented, viewing the law as unconstitutional.

Concurrences and dissents

The short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward homosexual sex, quoting Sir William Blackstone’s characterization of sodomy as “a crime not fit to be named”.[2] 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.”

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 people. 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 “Only 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’ ” (ironically quoting from the opinion by Chief Justice Burger in Paris Adult Theatre I v. Slaton, which held that obscene films are not constitutionally protected).

Blackmun revealed in a 1995 oral history with Harold Koh that his dissent in Bowers v. Hardwick was written primarily by openly gay Pamela Karlan (then a law clerk for Blackmun and now professor of law at Stanford Law School). Blackmun said of the dissent, “Karlan did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct.”[7]

Justice Eighth Amendment as it related to the prison sentence for conviction, but joined the majority opinion in 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.[10][11] However, that clerk has said that Powell not only knew of his sexuality and had met his boyfriend, but that Powell had also asked to talk to him about the mechanisms of homosexual sex.[12]

In 1990, three years after retiring from the Court, Powell told a group of New York University law students that he considered his opinion in Bowers an error. “I do think it was inconsistent in a general way with Roe. When I had the opportunity to reread the opinions a few months later I thought the dissent had the better of the arguments."[13] However, Powell believed that the case was one of little importance and spent only thirty minutes thinking about it.[13]

According to Daniel Richman, former law clerk for Justice Stanley”.[14]


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. Bowers signaled a reluctance by the Court to recognize a general constitutional right to privacy or to extend such a right further than they already had.[15]

The Georgia law upheld in Bowers criminalized 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 sex. “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.” State sodomy laws were seldom enforced against private, consensual conduct in the decades following the decision, though many courts and state governments interpreted it to justify a wide variety of bans and limitations on the lives of gay people.[16]

Bowers was used to deny suspect class qualification to gays and lesbians, thus restricting the standard of review to rational basis. Although Bowers was later overruled, decisions based on it, such as High Tech Gays v. Defense Industrial Security Clearance Office (1990), are sometimes still cited as precedent in gay rights cases.

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).[16] The remaining 13 state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct among adults, by the Supreme Court decision in Lawrence v. Texas 539 U.S. 558 (2003), which explicitly overturned Bowers. Justice Anthony Kennedy wrote the majority opinion in Lawrence, ruling that Texas’s state sodomy law was unconstitutional under the Fourteenth Amendment’s due process clause (adult consensual sexual intimacy in one’s home is a vital interest in liberty and privacy protected by the Due Process Clause). Kennedy wrote: “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.”

In 2009, a play based on the life of Michael Hardwick and the judicial proceedings, Sodomy Rules: The Bowers v. Hardwick Trial, was written and performed by Bill Crouch in New York City.[17]

See also


  1. ^ a b "Bowers v. Hardwick". Retrieved 2011-06-01. 
  2. ^ a b "Bowers v. Hardwick, BURGER, C.J., Concurring Opinion". Retrieved 2011-06-01. 
  3. ^ "Bowers v. Hardwick, Dissenting opinion by Blackmun". Retrieved 11 April 2012. 
  4. ^ a b Murdoch and Price, 278
  5. ^ Georgia Code Ann. § 16-6-2 (1984)
  6. ^ Murdoch and Price, 279
  7. ^ "The Volokh Conspiracy". Retrieved 2011-06-01. 
  8. ^ Domestic Partner Decision: Revisiting Old Wounds?, Willamette Week
  9. ^ Shilts, p. 523
  10. ^ Lazarus, Edward. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court, p. 386. “At the Bowers conference, Powell told his colleagues that he had ‘never met a homosexual’.”
  11. ^ Dahlia Lithwick (12 March 2012). "Extreme Makeover: The story behind the story of Lawrence v. Texas". The New Yorker. Retrieved March 9, 2012. 
  12. ^ for a Major Shift: Justices’ Gay Clerks"A"Exhibit . The New York Times. June 10, 2013. Retrieved 10 June 2013. 
  13. ^ a b Shilts, p. 542
  14. ^ Murdoch and Price, p. 292
  15. ^ Franke, Katherine. "Dignifying Rights: A Comment on Jeremy Waldron’s ‘Dignity, Rights, and Responsibilities’" (PDF). Columbia Law School. p. 1188. Retrieved 12 June 2013. 
  16. ^ a b Lisa Keen; Susanne B. Goldberg. "Strangers to the Law: Gay People on Trial". The New York Times. Retrieved 12 June 2013. 
  17. ^ "Carol Polcovar and Festival Participants: Fresh Fruit Festival, June 28, 2009". Retrieved November 28, 2012. 


  • Douglas-Brown, Laura (July 12, 2001). "Bowers v. Hardwick at 15". Southern Voice. Archived from the original on December 8, 2004. Retrieved August 16, 2010. 
  • Murdoch, Joyce; Deb Price (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. Basic Books.  
  • Shilts, Randy (1993). Conduct Unbecoming: Gays and Lesbians in the U.S. Military. St. Martin’s Griffin.  

External links

  • Text of Bowers v. Hardwick, 478 U.S. 186 (1986) is available from:  Findlaw  Justia  LII 
  • The Invasion of Sexual Privacy
  • Text of the Georgia Anti-Sodomy Statute at
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