Appellant
Michael J. Bowers, Attorney General of Georgia
Appellee
Michael Hardwick
Appellant's Claim
That a state statute making sodomy a criminal offense does not violate the constitutionally protected right to privacy.
Chief Lawyer for Appellant
Michael E. Hobs
Chief Lawyer for Appellee
Laurence Tribe
Justices for the Court
Warren E. Burger, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White (writing for the Court)
Justices Dissenting
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
30 June 1986
Decision
The Supreme Court upheld the Georgia law, reasoning that there is no fundamental right granted to homosexuals to engage in consensual sodomy.
Significance
In Bowers, the Supreme Court retreated from its earlier position thatconsensual sexual activity that is not obscene was protected by a constitutional right to privacy.
Michael Hardwick was a gay Atlanta bartender who was convicted under a Georgia anti-sodomy statute after he was discovered engaging in oral sex with another man. A police officer, who had come to serve Hardwick with a warrant for not having paid a fine for drinking in public, was admitted into Hardwick's home by another tenant who did not know whether Hardwick was there. The policeofficer then entered Hardwick's bedroom, where he found Hardwick and his partner having sex. Hardwick was arrested and charged with criminal sodomy.
The district attorney decided not to prosecute the case against Hardwick until he had further evidence, but Hardwick brought suit in federal district court challenging the constitutionality of the state law insofar as it made consensual sodomy a criminal offense. After his case was dismissed, he appealed this ruling to the U.S. Court of Appeals for the Eleventh Circuit, which foundthat the law violated Hardwick's right to privacy and ordered the lower courtto try the case. Before the trial could go forward, Michael Bowers, the Georgia attorney general, petitioned the U.S. Supreme Court for a review of the circuit court's ruling.
Justice White wrote the majority opinion for the Court, upholding the Georgiaanti-sodomy statute. Although in cases like Griswold v. Connecticut (1965; establishing the right of married couples to use contraceptives) and Roe v. Wade (1973; establishing a woman's right to abortion) the Court had upheld a constitutional right to privacy where sexual matters were concerned, White now distinguished those precedents from the case before the Court.
Powell's Swing Vote Changes the Outcome
Justice Blackmun, dissented bitterly: "The Court's cramped reading of the issue before it makes for a short opinion, but it does little to make for a persuasive one." Blackmun, who was originally to have written the opinion of theCourt in Bowers, lost that assignment when Justice Powell, who held the swing vote, changed his stance. The opinion was now assigned to White, whofavored upholding the anti-sodomy statute.
At first Powell had favored striking down the Georgia statute, but because Hardwick was not to receive any prison time for his offense, Powell could not justify overturning the state law used to convict Hardwick. As Powell saw it,in Bowers, the deciding factor was the Eighth Amendment, not the rightto privacy. He could not have condoned a prison sentence, which would in this case constitute constitutionally proscribed cruel and unusual punishment. Since there was to be no such punishment, and since he, like White, did not find a constitutional basis for upholding a fundamental right to private consensual homosexual activity, Powell changed his mind. (Powell would later publicly confess that changing his vote in Bowers had probably been a mistake.)
Blackmun, who had written the opinion of the Court in the landmark Roe v.Wade case, was outraged. Contrary to the majority view, he said, Bowers was not about "a fundamental right to engage in homosexual sodomy . . .Rather, this case is about the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone."
Related Cases
Domestic Partnership Laws
Cities across the United States have established registries allowing couplesto gain recognition for their relationships outside of marriage. Registeringas a couple is open to heterosexual as well as gay and lesbian partners. Although the formation of these domestic partnerships has yet to be challenged bythe courts, registration may provide committed couples with some of the legal benefits previously only given to married couples.
Under a domestic partnership agreement, the terms, definitions, and means ofbeginning and ending a partnership are spelled out. Many of the requirementsfor entering into a partnership agreement are very similar to those for marriage.
The partnership provides a recognition of the status of the relationship. Insome situations, it may offer a partner new benefits. For example, if the agreement is recognized by one partner's employer, this may allow the other individual a means to obtain health insurance and other benefits previously considered spousal benefits.
Some of the cities offering registration of domestic partnership agreements include Madison, Wisconsin; New York and Ithaca, New York; Ann Arbor, Michigan; Minneapolis, Minnesota; Cambridge, Massachusetts; Atlanta, Georgia; San Francisco, West Hollywood, Sacramento, and Berkeley, California; Hartford, Connecticut; and New Orleans, Louisiana.
Sources
Model Domestic Partnership, http://www.aclu.org/issues/gay/dpmodel.html.
The National Journal of Sexual Orientation Law, http://sunsite.unc.edu/gaylaw/issue1/becker.html. New York Times, 1 August 1993.
Michael J. Bowers, Attorney General of Georgia
Appellee
Michael Hardwick
Appellant's Claim
That a state statute making sodomy a criminal offense does not violate the constitutionally protected right to privacy.
Chief Lawyer for Appellant
Michael E. Hobs
Chief Lawyer for Appellee
Laurence Tribe
Justices for the Court
Warren E. Burger, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White (writing for the Court)
Justices Dissenting
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
30 June 1986
Decision
The Supreme Court upheld the Georgia law, reasoning that there is no fundamental right granted to homosexuals to engage in consensual sodomy.
Significance
In Bowers, the Supreme Court retreated from its earlier position thatconsensual sexual activity that is not obscene was protected by a constitutional right to privacy.
Michael Hardwick was a gay Atlanta bartender who was convicted under a Georgia anti-sodomy statute after he was discovered engaging in oral sex with another man. A police officer, who had come to serve Hardwick with a warrant for not having paid a fine for drinking in public, was admitted into Hardwick's home by another tenant who did not know whether Hardwick was there. The policeofficer then entered Hardwick's bedroom, where he found Hardwick and his partner having sex. Hardwick was arrested and charged with criminal sodomy.
The district attorney decided not to prosecute the case against Hardwick until he had further evidence, but Hardwick brought suit in federal district court challenging the constitutionality of the state law insofar as it made consensual sodomy a criminal offense. After his case was dismissed, he appealed this ruling to the U.S. Court of Appeals for the Eleventh Circuit, which foundthat the law violated Hardwick's right to privacy and ordered the lower courtto try the case. Before the trial could go forward, Michael Bowers, the Georgia attorney general, petitioned the U.S. Supreme Court for a review of the circuit court's ruling.
Justice White wrote the majority opinion for the Court, upholding the Georgiaanti-sodomy statute. Although in cases like Griswold v. Connecticut (1965; establishing the right of married couples to use contraceptives) and Roe v. Wade (1973; establishing a woman's right to abortion) the Court had upheld a constitutional right to privacy where sexual matters were concerned, White now distinguished those precedents from the case before the Court.
Accepting the decisions in these cases . . . we think it evident that none of the rights announced in those cases bears any resemblance to theclaimed constitutional right of homosexuals to engage in acts of sodomy thatis asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated . . . Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.
Powell's Swing Vote Changes the Outcome
Justice Blackmun, dissented bitterly: "The Court's cramped reading of the issue before it makes for a short opinion, but it does little to make for a persuasive one." Blackmun, who was originally to have written the opinion of theCourt in Bowers, lost that assignment when Justice Powell, who held the swing vote, changed his stance. The opinion was now assigned to White, whofavored upholding the anti-sodomy statute.
At first Powell had favored striking down the Georgia statute, but because Hardwick was not to receive any prison time for his offense, Powell could not justify overturning the state law used to convict Hardwick. As Powell saw it,in Bowers, the deciding factor was the Eighth Amendment, not the rightto privacy. He could not have condoned a prison sentence, which would in this case constitute constitutionally proscribed cruel and unusual punishment. Since there was to be no such punishment, and since he, like White, did not find a constitutional basis for upholding a fundamental right to private consensual homosexual activity, Powell changed his mind. (Powell would later publicly confess that changing his vote in Bowers had probably been a mistake.)
Blackmun, who had written the opinion of the Court in the landmark Roe v.Wade case, was outraged. Contrary to the majority view, he said, Bowers was not about "a fundamental right to engage in homosexual sodomy . . .Rather, this case is about the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone."
Related Cases
- Griswold v. Connecticut, 381 U.S. 479 (1965).
- Roe v. Wade, 410 U.S. 113 (1973).
Domestic Partnership Laws
Cities across the United States have established registries allowing couplesto gain recognition for their relationships outside of marriage. Registeringas a couple is open to heterosexual as well as gay and lesbian partners. Although the formation of these domestic partnerships has yet to be challenged bythe courts, registration may provide committed couples with some of the legal benefits previously only given to married couples.
Under a domestic partnership agreement, the terms, definitions, and means ofbeginning and ending a partnership are spelled out. Many of the requirementsfor entering into a partnership agreement are very similar to those for marriage.
The partnership provides a recognition of the status of the relationship. Insome situations, it may offer a partner new benefits. For example, if the agreement is recognized by one partner's employer, this may allow the other individual a means to obtain health insurance and other benefits previously considered spousal benefits.
Some of the cities offering registration of domestic partnership agreements include Madison, Wisconsin; New York and Ithaca, New York; Ann Arbor, Michigan; Minneapolis, Minnesota; Cambridge, Massachusetts; Atlanta, Georgia; San Francisco, West Hollywood, Sacramento, and Berkeley, California; Hartford, Connecticut; and New Orleans, Louisiana.
Sources
Model Domestic Partnership, http://www.aclu.org/issues/gay/dpmodel.html.
The National Journal of Sexual Orientation Law, http://sunsite.unc.edu/gaylaw/issue1/becker.html. New York Times, 1 August 1993.
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