Bowers v. Hardwick

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 the Court in Bowers, lost that assignment when Justice Powell, who held the swing vote, changed his stance. The opinion was now assigned to White, who favored 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 right to 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."