"Bowers was not correct when it was decided, & it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be & now is overruled."
Justice Kennedy in Lawrence v. Texas
What a week with several important decisions handed down by SCOTUS. One of the most significant of of all legal decisions having to do with gay rights is the infamous Bowers v. Hardwick & it happened on this day, 26 years ago.
Michael Hardwick was a bartender in a gay bar in Atlanta, Georgia who was targeted by a police officer for harassment. In 1982, an unknowing house guest let the officer let into Hardwick’s home. The officer went to the bedroom where Hardwick was engaged in oral sex with his partner. The men were arrested on the charge of sodomy. Charges were later dropped, but Hardwick brought the case forward with the purpose of having the sodomy law declared unconstitutional.
Bowers VS Hardwick was a response to a particularly insulting police action & repeal advocates had hoped that the case would put an end to sodomy laws in the United States when it reached the Supreme Court. Unfortunately, the 5-4 decision found that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy."
Justice Lewis Powell was the swing vote in the decision, switching from supporting invalidating all sodomy laws to denying homosexuals any right of privacy. In October of 1990, 3 years after his retirement, Powell told a group of New York University Law students, "I think I probably made a mistake in that one." He told the National Law Journal, "That case was not a major case, & one of the reasons I voted the way I did was the case was a frivolous case" brought "just to see what the court would do" on the subject. A more callous opinion is hard to imagine.
The case was overturned 17 years later by Lawrence & Garner v. State of Texas.