Bowers v. Hardwick was a 1986 decision of the Supreme Court of the United States. By a 5-4 vote, the Bowers decision upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later, in 2003, the Supreme Court explicitly overruled Bowers in the Lawrence v. Texas decision, and held that such laws are unconstitutional. (See judicial review.)
The facts of the Bowers decision, like those in Lawrence, arose out of a mistaken but lawful entry by police into a private home. Acting on an erroneous arrest warrant for an unrelated offense, police officers entered the bedroom of Michael Hardwick, where they found him engaged in oral sex with another man. They placed him under arrest for sodomy, which was defined in Georgia law to include both oral sex and anal sex. The local prosecutor did not pursue the charges, but threatened Hardwick with the possibility of reviving the prosecution if Hardwick got in any other trouble in the next seven years. Hardwick then sued Michael J. Bowers, the attorney general of Georgia, for a declaration that the state's sodomy law was invalid. Following decisions by the lower federal courts, the case ultimately reached the Supreme Court.
The issue in Bowers involved the right to privacy. In a series of previous cases, 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 same-sex "sodomy".
Bowers was decided at a time when the court's privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wade, was in doubt. In this historical context, Bowers may have signaled a reluctance by the then-members of the Court to recognize a general constitutional right to privacy or to extend such a right further than had already been done.
In addition, some have suggested that Bowers should be understood in the historical context of the AIDS epidemic, which was in a relatively early stage in 1986. In the early 1980s, the epidemic had occasioned a large amount of unsympathetic and sensationalistic press coverage about homosexuality, which previously had been something of a taboo topic in the U.S. mass media. When the Bowers case came to the Court, some have suggested, homophobia in America was at a high point.
Opponents of sodomy laws have criticized Bowers not only for its result but also because of the Court's dismissive treatment of the liberty and privacy interests of gay men and lesbians. The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution creates "a fundamental right to engage in homosexual sodomy". Justice White's opinion for the majority 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". A short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward sodomy, quoting Sir William Blackstone's characterization of sodomy as "a crime not fit to be named".
An unusually sharply worded dissenting opinion by Justice Harry Blackmun criticized the majority as having an "almost obsessive focus on homosexual activity". Justice Blackmun suggested that "[o]nly 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'".
The majority opinion by Justice White was joined by Chief Justice Burger and Justices Lewis F. Powell, Jr, William H. Rehnquist and Sandra Day O'Connor. Justice Powell and, as noted, Chief Justice Burger also wrote separate concurring opinions. Justices William J. Brennan, Thurgood Marshall and John Paul Stevens joined Justice Blackmun's dissenting opinion. In addition, Justice Stevens wrote his own dissenting opinion, which was joined by Justices Brennan, Marshall, and Blackmun.
It has been reported that Justice Powell had originally planned to vote to strike down the Georgia sodomy law in Bowers, but changed his mind at the last minute. After retiring from the Court, Justice Powell publicly said that he regretted his vote in Bowers.
State sodomy laws have seldom been enforced against private consensual conduct in recent decades, but the Bowers decision was frequently cited by opponents of gay rights to justify treating gay and bisexual people differently from heterosexual people. The Georgia law upheld in Bowers forbade oral sex and anal sex whether engaged in by people of the same sex or different sexes, but the Court's repeated use of the term "homosexual sodomy" led many to believe that the decision was applicable primarily to same-sex relations.
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 1998. (See sodomy law.) The remaining state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct, when the U.S. Supreme Court decided the Lawrence v. Texas case in 2003.
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