Bowers v. Hardwick at 15
Southern Voice,
July 12, 2001
1095 Zonolite Road, Atlanta, GA 30306
Email: editor@southernvoice.com
By Laura Douglas-Brown
ATLANTA—"To hold that the act of homosexual
sodomy is somehow protected as a fundamental right would be to cast aside
millennia of moral teaching."
The narrow 5-4 decision, in the case of a gay Atlanta man arrested in his
own bedroom, sparked immediate outrage: Three days after the July 30, 1986,
ruling, more than 200 protesters gathered at Atlanta’s Richard B. Russell
federal building to denounce the decision.
At the time, 24 states still had sodomy laws on the books: 19, including
Georgia’s, were broad prohibitions against anal and oral intercourse, while
five forbade homosexual acts specifically.
Today, 13 states have sodomy laws, and only three of the gay-specific
statutes still stand, according to the Lambda Legal Defense & Education
Fund. And although Georgia’s sodomy law was overturned by the state Supreme
Court in 1998, activists and attorneys say the stridently worded ruling in Bowers
v. Hardwick continues to have impact, both in court cases around the
country and in the activists it helped inspire here in Atlanta.
"The Hardwick decision continues to say that who you are, in
many states, is a felony, and that’s a big deal," said attorney
Kathleen Wilde, who represented gay Atlanta bartender Michael Hardwick
throughout his challenge to the law. "People are scared, and that keeps
people in the closet and afraid to come out."
A tale of two Michaels
Michael Bowers, the Georgia Attorney General who defended the law,
reportedly once said his only regret is that his name did not appear second on
the case, "because then it wouldn’t look like I’m the
homosexual."
Now an attorney with the Atlanta firm Meadows, Ichter & Trigg, Bowers
said last week the infamous case "is just not something I think about
now."
Asked to discuss his thoughts about the case 15 years after the decision,
Bowers declined.
"I’d rather not," he said. "I did my job as best I knew
how, and reasonable people can disagree about it, but that’s all I want to
say about it now."
Michael Hardwick cannot reflect on the case that bears his name: He died in
Gainesville, Fla., on June 13, 1991, reportedly from complications from AIDS.
His obituary did not mention either his sexual orientation or his role in
challenging the sodomy law.
Hardwick "was incredibly courageous," remembered Wilde. "He
was quite a warm, wonderful person, and he was an artist, and he became a very
articulate speaker for the cause."
Still, the case that would ultimately bring Hardwick into the national
spotlight—and legal history—began simply enough. In 1982, Hardwick, a
bartender at an Atlanta gay club, left the bar after his shift drinking a
beer. He threw it in a trash can, but was cited by police for public drinking.
According to Wilde, the ticket was confusing: It said Wednesday but cited
Tuesday’s date. When Hardwick missed the court date, a warrant was issued
for his arrest. Although Hardwick paid his court fine, the warrant wasn’t
retracted, and a police officer took the "extraordinary step" of
going to his home at 3 a.m. to serve the warrant, Wilde said.
Let into the home by a roommate, the officer entered a bedroom where he saw
Hardwick engaged in sodomy with a male partner and arrested him. Fulton County’s
district attorney declined to prosecute the case, a felony that carried a
prison sentence of up to 20 years.
But Hardwick decided to file suit to overturn the law, and many activists
thought the case—a man arrested in his own bedroom—offered the perfect
opportunity to argue that the law violated privacy rights. The 11th Circuit
Court of Appeals agreed, but as Georgia’s Attorney General, Bowers appealed
to the U.S. Supreme Court and won.
But his vigorous defense of Georgia’s sodomy law would also ultimately
play a role in ending Bowers’ career in public office. In 1998, Bowers
resigned as attorney general to seek the Republican nomination for governor.
He lost that bid after admitting a long-term extramarital affair—in
violation of another of Georgia’s archaic sex laws, the law against
adultery.
That hypocrisy helped put the nail in the coffin of Bowers’ political
career, gay political activists said.
"Bowers won the battle, but lost the war," said Harry Knox,
executive director of Georgia Equality, the nonpartisan statewide gay
political group.
"If anyone wants to say there was a final chapter to [Georgia’s
sodomy law saga], that may be it—the hypocrisy of Bowers having to admit
his indiscretion," agreed longtime gay political lobbyist Larry
Pellegrini.
"Afterwards, there was no hero left for those who wanted to restore
the sodomy law," he said. "He was their focus, and he was
lost."
Precedent remains
Gay and lesbian Georgians no longer have to directly contend with the
sodomy law, which had been used to justify everything from denying lesbian
mothers custody of their children to banning detailed safer sex education.
Twelve years after the Hardwick case, in a landmark decision that
shocked many gay rights advocates, the Georgia Supreme Court announced that it
had struck down the 182-year-old sodomy law as unconstitutional based on the
right to privacy guaranteed by the Georgia Constitution. The case involved a
heterosexual man convicted of consensual sodomy with his 17-year-old niece.
But gay rights activists said the decision’s biggest impact would be on gay
residents.
"Georgia is now a free state," said Steve Scarborough, staff
attorney with Lambda’s southern regional office and author of a persuasive
"friend of the court" brief in the case.
But while Georgia residents are now "free," the Hardwick
decision continues to have a "terrible impact across the country,"
said Harvard Law Professor Laurence H. Tribe, an expert in Constitutional law
who argued Hardwick’s case before the Supreme Court.
The decision serves "as a ready excuse for much discrimination against
gay men, lesbians and bisexuals — especially in matters of employment,
family law and immigration — on the ground that individuals who are not
heterosexual are by definition inclined to commit acts that remain crimes in
many states of the union," Tribe said.
"The power of the excuse that Bowers v. Hardwick continues to
provide should never be underestimated," Tribe said.
A legacy of activism
Still, while the U.S. Supreme Court’s decision in Bowers v. Hardwick
was undeniably negative for gays, "some lingering effects have been
positive," according to Pellegrini.
Outrage at the decision helped prompt record numbers of Georgia gays to get
involved in political campaigns as voters and volunteers, he said, especially
Bill Clinton’s 1992 presidential campaign. People realized that the only way
to avoid such outcomes in the future would be to elect new leaders who would
appoint new justices, Pellegrini said.
In addition to sparking the 1986 protest, the Hardwick decision and
the sodomy law also played pivotal roles in energizing some of Atlanta’s
best known gay activists.
Knox, now Georgia Equality’s director, said he discussed gay issues
publicly for the first time when, as a senior at the University of Georgia in
1984, he gave a presentation in speech class about the then-ongoing Bowers
v. Hardwick case.
"I felt it was really a denial of my most fundamental being,"
Knox said.
Pellegrini said he hadn’t come out publicly when the Supreme Court ruled
in the case in 1986, but his first work lobbying the Georgia General Assembly
came in 1991 when he volunteered to collect postcards from around the state
from people who supported repealing the sodomy law.
Nearly five years after the Bowers v. Hardwick decision, Michael
Bowers again took on gay rights issues when in 1991 he withdrew a job offer
for lesbian attorney Robin Shahar because of her planned commitment ceremony
with her female partner. Bowers cited both Bowers v. Hardwick and the
sodomy law among his justifications for his actions in a court battle that
lasted until 1998, when the U.S. Supreme Court refused to hear Shahar’s
appeal, allowing an appeals court ruling in favor of Bowers to stand.
But while Bowers’ career in government has ended, Shahar’s has
blossomed. She now serves as senior assistant city attorney for Atlanta, where
she works on civil rights cases—including leading the legal fight to
approve and implement Atlanta’s domestic partner benefits.
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