Alexander L. Pinto

APGOV

E-Block

7/3/10

The case of Bowers vs Hardwick was a very confusing and tangled affair in which many previous legal decisions, many of which were of Supreme Court nature were rejected and accepted in mishmashed manner. It seemingly came down to certain justices or other legal officers accepting previous decisions solely on the basis of whether it agreed with their opinion on the matter or not.

     It is debatable from the start whether this case should have been brought to trial at all. It violates the right to privacy from the onset. However, that matter is still fuzzy as it is not defined as to how far privacy goes and as to what circumstances are applicable. The case was brought to court in mid 1985. A policeman who had obtained a warrent had arrived at a house in which Mr Hardwick, a practicing homosexual, lived. Mr Hardwick had been given a summons and a fine for throwing out a beer bottle outside of the gay bar that he worked at. Mr Hardwick payed the fine but did not show up at the court at the appointed date. The officer, with an arrest warrent in hand, arrived at Mr Hardwicks home and was let in by a "friend" of Mr Hardwick who had been sleeping on the couch. Officer Torick proceeded to walk around the apartment and approached the door of Mr Hardwicks bedroom which was ajar. When he looked in, he saw that both Mr Hardwick and another man were engaged in mutually consented oral sex. The officer arrested both of them on a charge for sodomy as per Georgian Law whose definition for sodomy was " [a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." (1) 

Mr Hardwick sued Michael Bowers, who was at the time the Attorney General of Georgia. He believed that the state law for sodomy was invalid and he also believed that as a homosexual he could be later prosecuted for his actions in such matters. 

     The case immediately attracted many proponents for both sides. The most important for Mr Hardwick was the ACLU or the American Civil Liberties Union which chose to represent Mr Hardwick's case as it believe it could be a turning point in a immoral law. Mr Hardwick consented to be represented by ACLU lawyers, but when the case was brought before the District Court for northern Georgia the decision was in favor or Mr Bowers. It was challenged by Hardwick and taken to the State Court of Appeals which ruled in his favor and decreed that the state law of Georgia to be a violation of Hardwicks Constitutional rights. The decision was taken the Supreme Court which was at the time under the governance of Chief Justice Warren E. Burger. 

     Burger's court, as it came to be known, was a time of mostly liberal decisions which had up to that point. Ironically enough, Burger was nominated by President Richard M. Nixon, who thought he had interpreted him as a fairly word for word man when it came to the interpretation of the Constitution into legal matters. It was hoped by many Republicans that the Burger court would overturn many decisions put into effect by the previous liberal court of Chief Justice Warren. It was not to be so. In a series of unfortunate decisions for the Republicans, including Richard Nixon, he not only didn't overturn Warrens' decisions but in many cases reinforced them. 

     The case began in late 1985 with the Harvard Law Professor Laurence Tribe advocating for Hardwick, and the Assistant Attorney General Michael Hobbs arguing for the state of Georgia. The main issue in question was of privacy. The decision in Griswald v. Connecticut (1965) stated that the right to privacy was directly related to the 14th Amendment and the Due Process Clause. However in the Georgian court the decision rested on the opinion that the clause did not extend to private consenting homosexual sodomy. The prosecutor cited several cases to date that enforced the right to privacy which they claimed covered the matter of homosexual sodomy. The cited cases were: Carey v. Population Services International (1977), Peirce v. Society of Sisters (1925), Meyer v Nebraska (1923), Prince v Massachesetts (1944), Skinner v. Oklahoma ex rel. Williamson (1942), Loving v Virginia (1967), Griswald v Connecticut (1965), Eiesenstadt v Baird (1972), and finally Roe v Wade (1973). However, the court decided that all of these cases were irrelevant to the matter at hand. As they said "Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent." (2) 

Mr Hardwick then wished the court to rule that under the Due Process Clause of the 14th Amendment a homosexual has "a fundamental right to engage in homosexual sodomy." (3) 

The Court felt that this was a very loose interpretation of the Clause which simply discusses the processes of Life, Liberty, and Property. They also went by a decision made at the time of the formation of the Constitution which stated that in all of the 13 original states Sodomy was a criminal offense. It also was the case that when the 14th Amendment was ratified in 1868, 32 out of 37 states had laws against sodomy in their legal codes. Hardwick then argued that, according to Stanley v Georgia (1969) the government has no right to tell someone what do in their own home. However, that was only the case within reason. In matters of opinion there was no right, but in matters of security and breaking the law the house had nothing to do with it. It was wrong no matter where it took place. They said that if they were to cede on that point it would start a series of reforms which would overturn many resolutions on past cases. They felt a clear cut answer was the only way to avoid this. If it was to happen it would overturn the laws in 25 states which were against Sodomy. The case was resolved with a 5-4 vote against the Court of Appeals verdict which overturned the decision in the Georgian District Court.

     In an odd move many normally liberal Judges who usually interpreted the Constitution in very loose terms in particular Chief Justace Burger sided with the more traditional Republican Judges such as Justice Rehnquist on this to secure the majority in favor of Bowers. I personally feel that sodomy homosexual or straight should not be an illegal act so long as it is consenting by both parties. The decision of the Supreme Court to not allow certain occurrences to be subject to privacy rights is good in principle but should be reserved for such instances as domestic violence or actions that could cause interference or pain to surrounding neighbors. Justice Blackmun had this to say on the case and I completely agree with him "This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, than Stanley v. Georgia(1969), was about a fundamental right to watch obscene movies, or Katz v. United States (1967), was about a fundamental right to place interstate bets from a telephone booth. 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." (4) 

I think this dissent is a good summation of what the case represents as a whole. The problem with the decision, I believe, is that too many Justices were too biased against homosexuals and their private actions to see the overarching goal as Justice Blackmun was able to do.

(1)http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/bowers.html

(2)http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/bowers.html

(3)http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/bowers.html

(4)http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/bowers.html