Bowers v. Hardwick: The 1986 Ruling That Lawrence Overturned

What did the Supreme Court decide in Bowers v. Hardwick?

The Supreme Court decided that the Constitution did not protect private, consensual sodomy between adults, and it reversed a lower court ruling that had found Georgia's law unconstitutional ^[1]. The case, No. 85-140, was argued on March 31, 1986, and decided on June 30, 1986, by five votes to four ^[1].

Justice Byron White wrote the majority opinion, joined by Chief Justice Warren Burger and Justices Lewis Powell, William Rehnquist and Sandra Day O'Connor ^[1]. He framed the question narrowly, as whether the Constitution confers "a fundamental right upon homosexuals to engage in sodomy," and answered that it did not ^[1]. The Court therefore saw no need to weigh the state's reasons against a fundamental right.

History carried much of the argument. White noted that sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen states; in 1868, all but five of the 37 states had such laws; until 1961 all fifty states outlawed sodomy; and in 1986, 24 states and the District of Columbia still punished it even when private and consensual ^[1]. On that record, the majority found no tradition protecting the conduct.

The majority also rejected the idea that moral disapproval was an insufficient basis for law, observing that laws are very often grounded in moral choices ^[1]. It added a warning: if the claimed right covered voluntary sexual conduct between consenting adults in the home, it would be hard to exclude "adultery, incest, and other sexual crimes" committed there ^[1].

Timeline

1. August 3, 1982An Atlanta police officer serving a warrant at Michael Hardwick's home arrests him under Georgia's sodomy law; the charge is later dropped.
2. February 14, 1983ACLU lawyers file a federal suit for Hardwick against Georgia Attorney General Michael Bowers and other officials.
3. June 30, 1986The Supreme Court upholds the Georgia statute by 5 votes to 4 in Bowers v. Hardwick.
4. June 13, 1991Michael Hardwick dies near Gainesville, Florida.
5. November 23, 1998In Powell v. State, the Supreme Court of Georgia strikes down the sodomy law under the state constitution.
6. January 13, 2003In re J.M. applies the same privacy test to Georgia's fornication statute.
7. June 26, 2003Lawrence v. Texas overrules Bowers (6 to 3 on the judgment; five justices join the majority opinion).
8. January 14, 2005The Supreme Court of Virginia strikes down that state's fornication law in Martin v. Ziherl, relying on Lawrence.

How did Michael Hardwick's case begin?

The case began with a police visit to Michael Hardwick's home in Atlanta in August 1982. Hardwick, born in Miami in 1954, had moved to Atlanta in 1979 and worked as a bartender ^[2]. In July 1982, Officer Keith Torick ticketed him for public drinking outside the club where he worked; Hardwick missed his court date and a warrant was issued, although he later went to the county clerk and paid a fifty-dollar fine ^[2].

On August 3, 1982, Torick went to Hardwick's home early in the morning to serve the warrant, entered, and found him with another man in his bedroom ^[2]. He arrested Hardwick under the state's sodomy law and also seized a small amount of marijuana ^[2]. Hardwick pleaded guilty to the drug charge, and District Attorney Lewis Slaton dropped the sodomy charge, taking the view that such laws should not be used against consenting adults in private ^[2]. The Supreme Court's own account says the prosecutor decided not to present the matter to a grand jury unless further evidence developed ^[1].

A dropped charge did not end the matter. Three days after the arrest, Clint Sumrall of the American Civil Liberties Union approached Hardwick, who agreed to act as a test case ^[2]. On February 14, 1983, ACLU lawyers John Sweet and Kathy Wilde sued in federal court against Georgia Attorney General Michael Bowers, Slaton and Atlanta's public safety commissioner, George Napper ^[2].

A married couple, named in the suit as John and Mary Doe, joined as plaintiffs but were dismissed for lack of standing ^[1][2]. The district court dismissed Hardwick's claim, but a divided panel of the Eleventh Circuit reversed, holding that the statute violated fundamental rights ^[1]. Harvard law professor Laurence Tribe argued for Hardwick in the Supreme Court ^[2].

What Georgia law was at issue?

The law at issue was section 16-6-2 of the Georgia Code, which defined sodomy as any sexual act involving the sex organs of one person and the mouth or anus of another ^[1]. It carried a prison term of one to twenty years ^[1]. By the 1980s it was rarely enforced, according to the New Georgia Encyclopedia ^[2].

On its face the statute was gender-neutral: it applied to married and unmarried people, and to opposite-sex as well as same-sex couples ^[1]. The majority nevertheless confined its ruling to the statute as applied to homosexual sodomy and expressed no opinion on other applications ^[1]. The dissenters made that choice a central point of their objections.

Georgia law also contained older morals offenses. Its fornication and adultery statutes, which date back to the laws of 1833, remained in the code alongside the sodomy section; their later fate is described in Georgia's fornication statute and the In re J.M. ruling.

What did the concurring and dissenting justices argue?

Two justices in the majority wrote separately, and four dissented in two opinions. Chief Justice Burger stressed the ancient roots of sodomy prohibitions and Judeo-Christian moral traditions, concluding that there is "no such thing as a fundamental right to commit homosexual sodomy" ^[1]. He presented the issue as one of legislative authority, not personal preference ^[1].

Justice Powell agreed that there was no fundamental due process right at stake but raised a different concern. A prison sentence of up to twenty years for a single private act, he wrote, could raise a serious problem under the Eighth Amendment's ban on cruel and unusual punishment, an argument not raised in the lower courts and so not before the Court ^[1]. He also observed that the long history of nonenforcement suggested how weak such laws had become ^[1].

Justice Harry Blackmun, joined by Justices William Brennan, Thurgood Marshall and John Paul Stevens, wrote that the case was about "the right to be let alone," a phrase taken from Justice Louis Brandeis ^[1]. He argued that a long-held majority view that conduct is immoral cannot shield a law from constitutional review ^[1].

Justice Stevens, joined by Brennan and Marshall, emphasized the text of the statute ^[1]. Because it applied equally to heterosexual and homosexual conduct, and because in his view the state could not prohibit such conduct outright for heterosexual couples, he concluded that Georgia needed a legitimate reason to single out homosexuals for enforcement, and found none ^[1].

How did Georgia courts depart from Bowers?

Georgia's courts departed from Bowers by reading the state constitution's right to privacy more broadly than the federal Constitution. In Powell v. State, decided on November 23, 1998, the Supreme Court of Georgia held that the same sodomy statute, insofar as it criminalized private, non-commercial, consensual acts between adults legally able to consent, violated the Georgia Constitution ^[4]. Chief Justice Robert Benham wrote the opinion, Justice Sears concurred, and Justice Carley dissented; the court's report records that all the other justices concurred ^[4].

The facts of Powell were different from Hardwick's. Powell had been indicted for rape and aggravated sodomy involving his wife's 17-year-old niece; the jury acquitted him of both charges but convicted him of the lesser offense of sodomy, a verdict showing that force and lack of consent had not been proved ^[4]. The court reversed that conviction. It explained that Bowers did not control, because Georgia's privacy right is broader than the federal one ^[4].

The dissent raised fornication directly. Justice Carley, relying heavily on Bowers, argued that the majority's reasoning would call into question the state's power to enforce laws against consensual incest, fornication and adultery ^[4]. Within five years, that prediction was tested.

On January 13, 2003, in In re J.M., the Supreme Court of Georgia reversed a juvenile delinquency finding against a 16-year-old under the fornication statute ^[5]. It applied the test from Powell, which protects "private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent," and traced the state's privacy right to the Pavesich decision of 1905 ^[5]. Both teenagers were sixteen, Georgia's age of consent, and the court held that legal capacity to consent, not the label "minor," controlled ^[5].

Why did Lawrence v. Texas overrule it?

Lawrence v. Texas overruled Bowers because the Supreme Court concluded that Bowers had misunderstood the liberty at stake. Decided on June 26, 2003, by six votes to three on the judgment, Lawrence struck down a Texas law against same-sex intimate conduct ^[3]. Justice Anthony Kennedy wrote for himself and Justices Stevens, Souter, Ginsburg and Breyer; Justice O'Connor agreed with the result on equal-protection grounds but did not join the overruling of Bowers ^[3].

The language was unusually direct. The Court wrote that "Bowers was not correct when it was decided, and it is not correct today," and that it "should be and now is overruled" ^[3]. It said that White's framing of the question revealed the Court's own failure to appreciate the extent of the liberty involved ^[3].

Lawrence also pointed to how the legal landscape had shifted since 1986. The 25 jurisdictions with such laws at the time of Bowers had fallen to 13 states, four of which enforced them only against same-sex conduct ^[3]. The courts of five states, Georgia among them through Powell v. State, had declined to follow Bowers under their own constitutions ^[3]. The Court also cited the American Law Institute's 1955 Model Penal Code, which recommended no criminal penalties for consensual sexual relations conducted in private ^[3].

The majority drew limits around its holding. The case did not involve minors, people who might be injured or coerced, public conduct, prostitution, or formal recognition of any relationship ^[3]. Justice Antonin Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented ^[3]. The broader legal consequences are set out in how Lawrence v. Texas undermined fornication laws.

What did the reversal mean for fornication laws?

The reversal left fornication statutes without a solid constitutional footing when applied to consenting adults in private. Justice Scalia saw this immediately: his Lawrence dissent listed "fornication" among the state laws that the decision called into question, alongside bigamy, adult incest, prostitution, adultery, bestiality and obscenity ^[3]. Bowers had, in effect, been the precedent that protected such laws, and Scalia argued that without it they could not easily be defended ^[3].

Courts soon applied the logic. On January 14, 2005, the Supreme Court of Virginia struck down that state's fornication law in Martin v. Ziherl, a civil case in which a woman, Muguet Martin, had sued her former boyfriend over a disease she said he knowingly transmitted ^[6]. A Richmond judge had dismissed her claim because the injury occurred during the illegal act of fornication ^[6]. The ACLU of Virginia, which filed a friend-of-the-court brief, said Lawrence had made the outcome "predetermined," while noting that the state could still regulate sex in public ^[6]. That story is told in Virginia's fornication law, from Martin v. Ziherl to repeal.

Legislatures followed more slowly. Utah repealed its adultery offense through House Bill 40 in 2019, together with the separate offense of consensual sodomy ^[8], and its fornication section is marked repealed as of May 14, 2019 ^[9]. In Idaho, a subcommittee of the state Criminal Justice Commission concluded on October 25, 2021 that the adultery and fornication statutes criminalized conduct protected under Lawrence and should be repealed ^[7].

The reversal was not a blank check, however. Lawrence's own limits mean that laws on sex in public, prostitution or minors remain enforceable, even when a section still carries the old heading of fornication ^[3]. Bowers itself lasted seventeen years, and its legacy is now mostly the contrast it provides: the ruling that tied criminal law to majority morality, and the ruling that rejected it.

Frequently asked questions

Who wrote the Bowers majority opinion?

Justice Byron White wrote it. He was joined by Chief Justice Warren Burger and Justices Lewis Powell, William Rehnquist and Sandra Day O'Connor. Burger and Powell also wrote separate concurring opinions.

What was the vote in Bowers v. Hardwick?

The vote was 5 to 4. Justices Blackmun, Brennan, Marshall and Stevens dissented, with Blackmun and Stevens each writing a dissenting opinion. The decision was announced on June 30, 1986.

Did Bowers v. Hardwick involve fornication laws?

No. The case concerned Georgia's sodomy statute, and the majority's warning about other sexual crimes named adultery and incest. Fornication laws entered the debate later, in the 1998 Georgia dissent in Powell v. State and in Justice Scalia's 2003 dissent in Lawrence v. Texas.

Did Justice Powell regret his vote?

Yes, by his own later account. After leaving the bench, Lewis Powell said he had "probably made a mistake" in the case, according to the New Georgia Encyclopedia. He had cast the fifth vote for the majority.

What happened to Michael Hardwick?

Michael Hardwick was never prosecuted for sodomy, because the district attorney dropped the charge. He became a public advocate for gay rights after the case and died on June 13, 1991, near Gainesville, Florida.

Did Georgia's sodomy law apply to heterosexual couples?

Yes, on its face. Section 16-6-2 was gender-neutral and covered married and unmarried couples alike. The 1998 case that struck it down under the Georgia Constitution, Powell v. State, involved a man and a 17-year-old woman.

Is Bowers v. Hardwick still good law?

No. Lawrence v. Texas expressly overruled it on June 26, 2003, stating that Bowers was not correct when it was decided. Georgia's own Supreme Court had already refused to follow it under the state constitution in 1998.