In August 1982, an overnight guest permitted the police to enter the home of Michael Hardwick; the police entered Hardwick's bedroom and found him engaging in oral sex with another adult male. This act ran afoul of Georgia's sodomy statute, which forbade any couple (same-sex or opposite-sex) from performing oral or anal intercourse, even with the full and mutual consent of both members, in the privacy of a person's bedroom. The Georgia sodomy statute was particularly harsh in terms of punishment; violation of this statute was punishable by a mandatory minimum period of a year in prison, and a maximum period of 20 years in prison. At the time of Hardwick's arrest, about 25 states had sodomy statutes on their books, although very few states ever enforced these statutes. The Georgia District Attorney declined to present the matter to the grand jury for lack of evidence (perhaps realizing that, were Hardwick to be convicted and sentenced in accordance with the mandatory nature of the prison term, the state would become the target of widespread negative publicity). Hardwick, however, filed suit against the State of Georgia under 42 U.S.C. sec. 1983, alleging that the statute in question violated his right to intimate association and his right to privacy under the Ninth Amendment and under the Due Process Clause of the Fourteenth Amendment.
The federal district court dismissed Hardwick's lawsuit under rule 12) b) 6 (failure to state a claim upon which relief may be granted), resulting in Hardwick perfecting an appeal to the US Court of Appeals for the 11th Circuit. A divided panel of this circuit reversed the district court and reinstated Hardwick's lawsuit, holding that the Georgia sodomy statute violated Hardwick's fundamental rights to privacy and intimate association under the Ninth Amendment and under the Due Process Clause of the Fourteenth Amendment. The panel held that the rights in question were "fundamental" in nature, and remanded the case back to the district court with instructions to apply "strict scrutiny" to the state's defense of the statute. The 11th Circuit quite logically invoked a string of US Supreme Court cases that pertained to sex and privacy in reversing the district court; specifically, the 11th Circuit invoked Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), Stanley v. Georgia, 394 U.S. 557 (1969), and Roe v. Wade, 410 U.S. 113 (1973), all of which decisions implicate the right to privacy first enunciated by the Court in Griswold.
The US Supreme Court granted certiorari and reversed the 11th Circuit.
From the outset, the Court adopted both tone and wording that made it clear that the Court had naked contempt for Hardwick and for gay men and lesbians. Although the Georgia sodomy statute applied to both same-sex and opposite-sex couples alike, the Court focused only on the impact that this statute had on same-sex couples, stating that "[t]he issue issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time." This crude, blunt, and demeaning analysis failed to take into consideration such factors as sexual attraction, love, and relationships, reducing gay men and lesbians to the perpetrators of certain sex acts.
This decision was gratuitous in the contempt it displayed for gay men and lesbians, mocking Hardwick's claim that gay people are entitled to respect for their sexual privacy as "at best, facetious." The Court also took it upon itself to berate the lower federal courts for their identification of "fundamental rights," making it clear that, while it respected the countours of the right to privacy identified in the above-mentioned cases, it strongly discouraged any of the lower courts from the identification of additional "fundamental rights," or the expansion of those rights that it already recognized. More generally, the Court made it clear that it disapproved of the very concept of "substantive due process," notwithstanding the fact that it would (statedly) abide by precedent in cases where the Due Process Clauses were interpreted as having a substantive component.
This decision was written in tones of sneering contempt. The tone of a US Supreme Court decision can, under some circumstances, be almost as important as the result. In Bowers, the Court used bitter and demeaning language, which became, itself, the target of some criticism. Although the holding of the Court in Bowers was actually very narrow (permitting the states to criminalize same-sex sexual activity), many lower courts took it upon themselves to interpret Bowers as creating a "gay exception" to the US Constitution. A federal district court in Kentucky granted a 12) b) 6 motion to dismiss filed against several Boone Country, KY police officers and against the City of Florence, KY, by a woman named Susan Stemler, appearing to accept police testimony that the US Court of Appeals for the Sixth Circuit found to be utterly lacking in merit (see Stemler v. City of Florence, FED App. 0300P, No. 96-5993 (1997); in this case, the above-mentioned police officers selectively harassed and badgered the plaintiff based on their perception that she was a lesbian; the Sixth Circuit held that "[i]t is inconceivable that Bowers stands for the proposition that the state may discriminate against individuals on the basis of their sexual orientation solely out of animus to that orientation" and went on to write that "[w]e emphatically reject this assertion; the proposition that the state may constitutionally discriminate by enforcing laws only against homosexuals (or Centre College graduates or SAE members) is not now, and never has been, the law."
The collateral consequences of Bowers proved to be far more dangerous and far-reaching than the actual holding. Bowers was cited by legislative bodies when such bodies wished to rebuff petitions for the enactment of anti-discrimination statutes (these bodies would assert that they could not pass legislation prohibiting discrimination against unconvicted criminals). Bowers was cited in child custody cases; a state court in Virginia removed a young boy from the custody of his mother (a woman named Sharon Bottoms) and granted custody to the child's grandmother on the basis of the fact that Bottoms was an "unconvicted felon." Bowers was used by opponents of permitting gay men and lesbians to serve in the armed forces of the US on the same terms as heterosexuals; and Bowers was used to justify other forms of discrimination against gay men and lesbians. In short, this decision was a massive stumbling block to the attainment of legal equality by the gay community.
However, gay men and lesbians fought back. State constitutions are frequently more generous, either by their terms or as construed by state supreme courts, than the US Constitution. In the face of Bowers, gay activists decided to overturn sodomy statutes by challenging their constitutionality on state constitutional grounds. The first state in which this strategy succeeded was the Commonwealth of Kentucky; in overturning the Kentucky sodomy statute on state constitutional grounds, the Kentucky Supreme Court subjected the US Supreme Court to a verbal thrashing, stating that:
"Is there a rational basis for declaring this one type of sexual immorality so destructive of family values as to merit criminal punishment whereas other acts of sexual immorality which were likewise forbidden by the same religious and traditional heritage of Western civilization are now decriminalized? If there is a rational basis for different treatment it has yet to be demonstrated in this case. We need not sympathize, agree with, or even understand the sexual prefence of homosexuals in order to recognize their right to equal treatment before the bar of criminal justice.To be treated equally by the law is a broader constitutional value than due process of law as discussed in the Bowers case. We recognize it as such under the Kentucky Constitution, without regard to whether the United States Supreme Court continues to do so in federal constitutional jurisprudence. "Equal Justice Under Law" inscribed above the entrance to the United States Supreme Court, expresses the unique goal to which all humanity aspires. In Kentucky it is more than a mere aspiration. It is part of the "inherent and inalienable" rights protected by our Kentucky Constitution.
"Our protection against exercise of "arbitrary power over the ... liberty ... of freemen" by the General Assembly (Section Two) and our guarantee that all persons are entitled to "equal" treatment (in Section Three) forbid a special act punishing the sexual preference of homosexuals. It matters not that the same act committed by persons of the same sex is *502 more offensive to the majority because Section Two states such "power ... exists nowhere in a republic, not even in the largest majority."The purpose of the present statute is not to protect the marital relationship against sexual activity outside of marriage, but only to punish one aspect of it while other activities similarly destructive of the marital relationship, if not more so, go unpunished. Sexual preference, and not the act committed, determines criminality, and is being punished. Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals." [emphasis added]
Following this decision by the Kentucky State Supreme Court, gay activists went before other state high courts and made similar appeals, based on the state constitutions in question. States in which such actions succeeded included (in no particular order): Arkansas, Maryland, Minnesota, Georgia, and Tennessee. By 2003, the number of states which had sodomy laws on their books went down from 25 in 1986 to about 14; only one state (Nevada) repealed its sodomy statute, whereas about 10 states lost their legal battles to keep their sodomy statutes on the books as a result of court challenges relying entirely on state constitutional analysis and attack.
The reversal of Bowers v. Hardwick in 2003 will be discussed in a separate entry in this blog......