Bowers Vs. Hardwick: Case Study
Antanas Simkus
AIU Online
CRJS 400
Professor Tammi Clearfield
Unit 4 Individual Project
Bowers v. Hardwick
Short review The year is 1986. Location -Georgia. What started as a regular day for Michel Hardwick, led to unbelievable chain of events and ended with one of the most disgraceful Supreme Court’s decision. After throwing a bottle of beer to a trash can outside gay bar M. Hardwick was cited for drinking in public. But because of the police officers mistake, Michael did not show up in court, as dates were mixed up. As a result, arrest warrant was issued. And when a police officer showed up at Mr. Hardwick’s residence to serve the warrant (which at that time was already called off, since Michael …show more content…
had paid the 50$ fine) he found an acquaintance sleeping on a couch and Mr. Hardwick, engaged in oral sex with another male partner (www.law.cornell.edu)
History Of course, today we view things differently than people did 30 or so years ago. Back then many states, including Georgia had sodomy laws, which allowed and accepted one form of sex “traditional” vaginal intercourse between male and female). Any other forms of sex were a crime and while this idea sounds completely ridiculous today it dates back from the early days of colonies and is deeply rooted in both English Common Law and American Law. Sodomy laws in early colonial days punished to death those who engaged in what we today know as bestial and homosexual activities. Fast forward to the 19th century and those laws are still there, however, they are only enforced if the act of sodomy is public or violent, and it would always be either African slaves and immigrants, who would be charged with this sort of crime. After the first World War came the “roaring twenties”, and the party was on. Arrests for sodomy ten folded compared to the 19th century and some states reacted to loosening morals of the society by even outlawing oral sex between man and woman as a “crime against the nature”. Sodomy was also banned by the original 13 colonies and outlawed by all 50 states until 1961. (http://www.sodomy.org/laws/) This reference to traditions and historic values will be one of the biggest States arguments in hearings that followed.
American Civil Liberties union (ACLU) offered Mr. Hardwick their legal representation services. The right to privacy did not, according to the Supreme Court, extend to homosexual conduct. “I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.” – Chief justice Warren Burger wrote . (Bowers v. Hardwick, www.casebriefs.com) In other words, Supreme Court ruled that the Constitution does not protect gay rights and they, as adults do not have neither the right to private, nor can they engage in consensual sex. Today we do know that our rights are protected under Due Process Clause, and one of the rights is a person’s right to liberty. William Douglas said that the freedom starts with a person’s right to be left alone and that is confirmed by the Fourth Amendment as well.
Arguments
It can be said with certainty that in this case the Supreme Court protected sodomy laws, because of traditional, deeply rooted view and idea of what a typical, traditional family is or should be. Michael Hobbs, assistant attorney general who represented the State stated that “…appropriate limits and guidelines for determining whether or not rights are truly fundamental can be found in tradition, history, and heritage of this nation” (Hobbs, M. Oral argument, Bowers v. Hardwick). The State also argued that the Constitution protects a family, rather than individual namely because family concept is rooted in traditional America. And since the concept of sodomy and homosexuality is so alien and far away from traditional family values, legal history and social traditions it is therefore, has been condemned .
The State admitted that even though Fourth amendment does provide a general right of privacy at home it does not prevent the State from enacting regulations which govern activities in one`s home. In other words, the act of sodomy was seen so perverse, dangerous and immoral that it was beyond the protection of the Constitution. Only few institutions were protected – those that attended marriage, raised family and children or cohabitated with one`s relatives. Mr. Hardwick’s lawyers argued that maybe the family definition should be changed in order o accommodate wider variety of relationships. They have also argued that the state should not have any interest of stopping homosexuality. According to them, this case was not about protecting interests of family, children or public in general, nor did it have anything to do with illegal relationships such as incest or prostitution. Rather, this was about an individual’s right to behave in his own bedroom as he likes.
The Outcome
The Supreme Court in a 5-4 decision ruled that acts of sodomy do not all under Constitutional Protection and there was a true fear of opening Pandora’s box, so to speak. By legalizing homosexual relations between same sex individuals would not only damage courts reputation but would also open gates for a flood of kinkiness and immoral acts. “Morality” and “tradition” were the orders of the day and was a major step back in civil rights movement and application of Constitutions 4th amendment. “Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. “(Bowers v. Hardwick, 478 U.S. 186, Syllabus). The decision would stand for another 17 years until next landmark case.
Lawrence v. Texas was not just a court case but a major civil rights battle
History
In 1998 john Lawrence and his two male gay friends Tyron Garner and Robert Eubanks were having a party in John`s home in Houston, Texas.
Alcohol fueled jealousy and soon police received a phone call about a drunken man with a gun, which was not the case. When police arrived and entered Lawrence’s apartment, they found Lawrence and Garner engaged in anal sex for what they got arrested. In order to get a better understanding about importance of this case we must look political and social climates of the time. In 1973 anti-sodomy law forbade oral and anal sex between two people of the same sex, but the same activity was allowed for heterosexual couples. Same year Texas revised its criminal code and saw it fit to decriminalize adultery, seduction and bestiality. So in the year of 1973 the state of Texas public policy allowed human intercourse with an animal but did not allowed consensual sex between two adult people. Even though the Texas called “Homosexual conduct Law” many LGBT community members saw it as an attempt to criminalize not only the sexual act itself, but the very status of a gay person. It was not that homosexual sex acts were illegal, just being a gay was illegal – or that is how most law enforcement officers saw it. Police officers had never received any training or tips as to how to deal with certain situations, almost all police departments had high levels of homophobia and openly gay people would be treated anything but …show more content…
fairly.
Lambda legal, a nonprofit organization that specializes in fighting for LGBT rights threw all legal power it could muster in the case and in a four year battle has won an astonishing victory. Texas “Homosexual conduct law was declared unconstitutional, previous decision in Bowers v. Hardwick reversed and it was a giant leap in the civil rights movement. There were only 14 states left with sodomy laws in 2003, therefore Lambda Legal found it easier to urge Supreme Court to follow the trend rather than make a revolutionary breakthrough as it had to be done in 1986. Besides, society itself has changed, too. Suddenly it was OK to be gay, even fashionable sometimes – big stars like Elton John, Freddie Mercury and George Michael “came out” and the curse from gay community was removed. However, just like in Bowers v. Hardwick case, the main argument from prosecutor’s side was that laws regulating sexual conduct have long and deep tradition in American culture and history and it is all done to preserve traditional family values and “normal” sexual conduct. In Texas legislator’s opinion, the law can be justified on a moral basis alone because they represent values that most community members share, including police officers. Outcome
The Supreme Court declared all sodomy laws unconstitutional, putting an end to the sodomy laws in remaining 14 states.
The legal victory in Lawrence v. Texas is important not only because it overturned unjust, wrong law. It showed that the law can be ugly. The case removed certain stigma associated not with homosexual conduct, but with gay community itself. Sadly, it could have happened much earlier, but traditions, old values and prejudices kept nation from moving forward.
References:
SUPREME COURT OF THE UNITED STATES 478 U.S. 186 Bowers v. Hardwick Retrieved from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html
The Strange History of Sodomy Laws. Retrieved from http://www.alternet.org/story/99092/the_strange_history_of_sodomy_laws
Constitutional Values, Government Powers & Individual Freedoms by Hall , Feldmeier
Lawrence v. Texas; Summary. Retrieved from http://www.lambdalegal.org/in-court/cases/lawrence-v-texas
Bazelon, E. (Oct 19, 2012). Why Advancing Gay Rights is All About Good Timing. Retrieved from http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/10/the_supreme_court_s_terrible_decision_in_bowers_v_hardwick_was_a_product.html
Bowers v. Hardwick. Retrieved from
http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-cohen/the-due-process-contract-and-just-compensation-clauses-and-the-review-of-the-reasonableness-of-legislation/bowers-v-hardwick-6/2/
AIU Online
CRJS 400
Professor Tammi Clearfield
Unit 4 Individual Project
Bowers v. Hardwick
Short review The year is 1986. Location -Georgia. What started as a regular day for Michel Hardwick, led to unbelievable chain of events and ended with one of the most disgraceful Supreme Court’s decision. After throwing a bottle of beer to a trash can outside gay bar M. Hardwick was cited for drinking in public. But because of the police officers mistake, Michael did not show up in court, as dates were mixed up. As a result, arrest warrant was issued. And when a police officer showed up at Mr. Hardwick’s residence to serve the warrant (which at that time was already called off, since Michael …show more content…
had paid the 50$ fine) he found an acquaintance sleeping on a couch and Mr. Hardwick, engaged in oral sex with another male partner (www.law.cornell.edu)
History Of course, today we view things differently than people did 30 or so years ago. Back then many states, including Georgia had sodomy laws, which allowed and accepted one form of sex “traditional” vaginal intercourse between male and female). Any other forms of sex were a crime and while this idea sounds completely ridiculous today it dates back from the early days of colonies and is deeply rooted in both English Common Law and American Law. Sodomy laws in early colonial days punished to death those who engaged in what we today know as bestial and homosexual activities. Fast forward to the 19th century and those laws are still there, however, they are only enforced if the act of sodomy is public or violent, and it would always be either African slaves and immigrants, who would be charged with this sort of crime. After the first World War came the “roaring twenties”, and the party was on. Arrests for sodomy ten folded compared to the 19th century and some states reacted to loosening morals of the society by even outlawing oral sex between man and woman as a “crime against the nature”. Sodomy was also banned by the original 13 colonies and outlawed by all 50 states until 1961. (http://www.sodomy.org/laws/) This reference to traditions and historic values will be one of the biggest States arguments in hearings that followed.
American Civil Liberties union (ACLU) offered Mr. Hardwick their legal representation services. The right to privacy did not, according to the Supreme Court, extend to homosexual conduct. “I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.” – Chief justice Warren Burger wrote . (Bowers v. Hardwick, www.casebriefs.com) In other words, Supreme Court ruled that the Constitution does not protect gay rights and they, as adults do not have neither the right to private, nor can they engage in consensual sex. Today we do know that our rights are protected under Due Process Clause, and one of the rights is a person’s right to liberty. William Douglas said that the freedom starts with a person’s right to be left alone and that is confirmed by the Fourth Amendment as well.
Arguments
It can be said with certainty that in this case the Supreme Court protected sodomy laws, because of traditional, deeply rooted view and idea of what a typical, traditional family is or should be. Michael Hobbs, assistant attorney general who represented the State stated that “…appropriate limits and guidelines for determining whether or not rights are truly fundamental can be found in tradition, history, and heritage of this nation” (Hobbs, M. Oral argument, Bowers v. Hardwick). The State also argued that the Constitution protects a family, rather than individual namely because family concept is rooted in traditional America. And since the concept of sodomy and homosexuality is so alien and far away from traditional family values, legal history and social traditions it is therefore, has been condemned .
The State admitted that even though Fourth amendment does provide a general right of privacy at home it does not prevent the State from enacting regulations which govern activities in one`s home. In other words, the act of sodomy was seen so perverse, dangerous and immoral that it was beyond the protection of the Constitution. Only few institutions were protected – those that attended marriage, raised family and children or cohabitated with one`s relatives. Mr. Hardwick’s lawyers argued that maybe the family definition should be changed in order o accommodate wider variety of relationships. They have also argued that the state should not have any interest of stopping homosexuality. According to them, this case was not about protecting interests of family, children or public in general, nor did it have anything to do with illegal relationships such as incest or prostitution. Rather, this was about an individual’s right to behave in his own bedroom as he likes.
The Outcome
The Supreme Court in a 5-4 decision ruled that acts of sodomy do not all under Constitutional Protection and there was a true fear of opening Pandora’s box, so to speak. By legalizing homosexual relations between same sex individuals would not only damage courts reputation but would also open gates for a flood of kinkiness and immoral acts. “Morality” and “tradition” were the orders of the day and was a major step back in civil rights movement and application of Constitutions 4th amendment. “Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. “(Bowers v. Hardwick, 478 U.S. 186, Syllabus). The decision would stand for another 17 years until next landmark case.
Lawrence v. Texas was not just a court case but a major civil rights battle
History
In 1998 john Lawrence and his two male gay friends Tyron Garner and Robert Eubanks were having a party in John`s home in Houston, Texas.
Alcohol fueled jealousy and soon police received a phone call about a drunken man with a gun, which was not the case. When police arrived and entered Lawrence’s apartment, they found Lawrence and Garner engaged in anal sex for what they got arrested. In order to get a better understanding about importance of this case we must look political and social climates of the time. In 1973 anti-sodomy law forbade oral and anal sex between two people of the same sex, but the same activity was allowed for heterosexual couples. Same year Texas revised its criminal code and saw it fit to decriminalize adultery, seduction and bestiality. So in the year of 1973 the state of Texas public policy allowed human intercourse with an animal but did not allowed consensual sex between two adult people. Even though the Texas called “Homosexual conduct Law” many LGBT community members saw it as an attempt to criminalize not only the sexual act itself, but the very status of a gay person. It was not that homosexual sex acts were illegal, just being a gay was illegal – or that is how most law enforcement officers saw it. Police officers had never received any training or tips as to how to deal with certain situations, almost all police departments had high levels of homophobia and openly gay people would be treated anything but …show more content…
fairly.
Lambda legal, a nonprofit organization that specializes in fighting for LGBT rights threw all legal power it could muster in the case and in a four year battle has won an astonishing victory. Texas “Homosexual conduct law was declared unconstitutional, previous decision in Bowers v. Hardwick reversed and it was a giant leap in the civil rights movement. There were only 14 states left with sodomy laws in 2003, therefore Lambda Legal found it easier to urge Supreme Court to follow the trend rather than make a revolutionary breakthrough as it had to be done in 1986. Besides, society itself has changed, too. Suddenly it was OK to be gay, even fashionable sometimes – big stars like Elton John, Freddie Mercury and George Michael “came out” and the curse from gay community was removed. However, just like in Bowers v. Hardwick case, the main argument from prosecutor’s side was that laws regulating sexual conduct have long and deep tradition in American culture and history and it is all done to preserve traditional family values and “normal” sexual conduct. In Texas legislator’s opinion, the law can be justified on a moral basis alone because they represent values that most community members share, including police officers. Outcome
The Supreme Court declared all sodomy laws unconstitutional, putting an end to the sodomy laws in remaining 14 states.
The legal victory in Lawrence v. Texas is important not only because it overturned unjust, wrong law. It showed that the law can be ugly. The case removed certain stigma associated not with homosexual conduct, but with gay community itself. Sadly, it could have happened much earlier, but traditions, old values and prejudices kept nation from moving forward.
References:
SUPREME COURT OF THE UNITED STATES 478 U.S. 186 Bowers v. Hardwick Retrieved from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html
The Strange History of Sodomy Laws. Retrieved from http://www.alternet.org/story/99092/the_strange_history_of_sodomy_laws
Constitutional Values, Government Powers & Individual Freedoms by Hall , Feldmeier
Lawrence v. Texas; Summary. Retrieved from http://www.lambdalegal.org/in-court/cases/lawrence-v-texas
Bazelon, E. (Oct 19, 2012). Why Advancing Gay Rights is All About Good Timing. Retrieved from http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/10/the_supreme_court_s_terrible_decision_in_bowers_v_hardwick_was_a_product.html
Bowers v. Hardwick. Retrieved from
http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-cohen/the-due-process-contract-and-just-compensation-clauses-and-the-review-of-the-reasonableness-of-legislation/bowers-v-hardwick-6/2/