ONE CANNOT HIDE one’s gender or the color of one’s skin, but for many years gays and lesbians in America had to hide their sexual orientation because of widespread prejudice against homosexuality. The civil rights revolution and then the women’s movement emboldened gay groups to follow the same path—stand up openly, demand full rights, and go to court when those rights were denied. Public opinion had been ready to respond to calls for equality for women and people of color, but perhaps because many Americans were unfamiliar with homosexuality, and because religious groups condemned it as a sin, the fight for gay rights took a different turn. In examining how the Supreme Court responded starting with its first encounter with gay and lesbian demands we can also see how far the general public changed as well.
One morning in August 1982 a police officer knocked on the front door of Michael Hardwick’s home in the Virginia Highland section of Atlanta, Georgia, carrying a warrant for Hardwick’s arrest for failure to appear in court on a charge of drinking in public. The officer, K. R. Torick, later alleged in his official report that when he arrived, one of Hardwick’s housemates answered the door and admitted him. The man told Torick he did not know if Michael was home, but the officer could look for him. Torick started walking down the hallway, and through an open bedroom door saw Hardwick and a male companion engaged in sex, and he promptly arrested both of them for violating Georgia’s sodomy statute.
Thus began a series of cases that brought the issue of gay rights before the Supreme Court five times in the next two decades, and saw the high court extend a measure of constitutional protection to homosexual Americans for the first time. In doing so the justices added still more fuel to the culture wars roiling America, the struggle between those who clung to what they considered traditional virtues and notions of right and wrong, and those who embraced a new world without what they saw as outdated prejudices and morals.
Michael Hardwick had been born and raised in Miami, and studied at Florida State University with the goal of becoming a landscape architect. At college he was something of a spiritual recluse, and even considered becoming a Buddhist monk, much to his Catholic family’s chagrin. “They were actually relieved when I told them I was coming out instead,” he recalled. “Their attitude was, ‘Thank God!’” He opened a small landscaping business and did well, but then decided he needed more time for himself and moved to Gatlinburg, Tennessee, in the Smoky Mountains and ran a health food store. At the urging of some friends he later moved to Atlanta, where he found work at a gay bar that was getting ready to open as a discotheque. Atlanta was less than welcoming to gays, and one evening when he came home three men were waiting for him and beat him up. Because of renovations at the bar, Hardwick often worked late, and one time was there until seven in the morning. He went outside with a bottle of beer to relax, but threw it into a trash can just as Officer Torick pulled up. Once Hardwick told him where he worked Torick knew that he was gay, and hassled him, eventually giving him a ticket for drinking in public. Hardwick decided not to challenge the ticket. In fact, the warrant that Torick had with him on August 3 was not even valid, because Hardwick had already paid the $50 fine.
Hardwick was in for more bad treatment after Torick hauled him and his friend down to the police station. Even though they had offered no resistance Torick put them both into handcuffs, and after they had been booked and fingerprinted, officers threw them into the holding tank, informing both guards and the other prisoners that the two guys were gay and what they had been doing when they were arrested. They spent most of the day there until friends found out what happened and posted bail for their release.
Paradoxically, the district attorney’s office in Atlanta had been trying to develop better relations with the city’s gay community, and unless there were other factors, such as drunkenness or disorderly conduct, had told police to leave gays and lesbians alone. In fact, until Hardwick’s arrest the local prosecutor had never used the sodomy statute against people simply having sex. Not all of the police favored this policy, and many of the more homophobic managed to hassle gays whenever they could. According to Hardwick’s testimony, Torick went out of his way to arrest him for drinking in public when he had already tossed the beer bottle away.
Three days after the arrest Clint Sumrall of the American Civil Liberties Union (ACLU) contacted Hardwick. The ACLU had been seeking a test case to challenge Georgia’s sodomy law on the basis that it violated a constitutionally protected right to privacy. Hardwick agreed to meet with other ACLU staff and lawyers. Although they made it clear that if he went forward with the case and lost he could be sentenced up to the maximum twenty-years in prison that the law allowed, Hardwick agreed to proceed with the case, and the ACLU assigned Kathy Wilde as his lawyer. She filed suit on Hardwick’s behalf against both the police commissioner of Atlanta and the state attorney, Michael Bowers. Since most of the practices banned in the sodomy statutes of Georgia and other states, such as anal sex, fellatio, and cunnilingus, were enjoyed by straight as well as gay men and women, Wilde also brought in John and Mary Doe, a pseudonymous heterosexual couple, to claim that Torick’s arrest of Hardwick had had a chilling effect on their own personal relationship.
The ACLU took the suit to federal district court, where Judge Robert H. Hall threw it out, ruling that Hardwick had no legitimate cause to plead. Wilde then took the case to the Court of Appeals for the Eleventh Circuit, which had very little guidance in terms of Supreme Court precedent.
In 1985 the high court had heard only one case in which the litigants claimed that state laws against sodomy violated the right to privacy. In 1975 a three-judge district court in Virginia, by a vote of 2–1, had upheld that state’s sodomy law on the grounds that Griswold v. Connecticut (1965) only extended the right of privacy in intimate matters to married couples. The sole dissenter, Judge Robert Merhige Jr., believed that privacy applied to everyone: “To say, as the majority does, that the right of privacy, which every citizen has, is limited to matters of marital, home, or family life is unwarranted under the law.”
On appeal the Supreme Court in Doe v. Commonwealth’s Attorney (1976), by a 6–3 vote, affirmed the lower court decision without opinion, and only three justices—William Brennan, Thurgood Marshall, and John Paul Stevens—indicated that they would have accepted the case to hear its merits. With the firestorm generated by the Court’s decision in Roe v. Wade only three years earlier still building, however, it is likely that the justices wanted to avoid another controversial case.
In considering Hardwick’s case, the Eleventh Circuit noted that because the Supreme Court had not given any reasons for its decision in affirming Doe, established judicial procedure meant that lower courts were not bound by the results of the Virginia panel. Moreover, according to Judge Frank M. Johnson, recent decisions by the high court in abortion cases seemed to indicate that a wider interpretation of the right to privacy might be in order. He then concluded that “the Georgia sodomy statute infringes upon the fundamental constitutional rights of Michael Hardwick.” Johnson ordered the case to go back to the district court, where in order for the law to be upheld, Georgia would have to “demonstrate a compelling interest in restricting the right and must show that the sodomy statute is a properly restrained method of safe-guarding [the state’s] interests” (Hardwick v. Bowers [1985]).
Georgia, however, had no interest in retrying the case in district court, and took an appeal to the U.S. Supreme Court, which accepted the case on November 4, 1985, and heard oral argument on March 31, 1986. On the last day of the term, June 30, 1986, a 5–4 Court ruled that the due process clause of the Fourteenth Amendment did not confer any fundamental right on homosexuals to engage in acts of consensual sodomy. Perhaps the only surprise was the closeness of the ruling and the fact that there were five separate opinions.
In the decades following World War II the Supreme Court had undertaken a judicial revolution in the meaning of civil rights and civil liberties. It had struck down state-sanctioned racial segregation, done away with malapportioned state legislatures that effectively robbed minorities of their representation, expanded the meaning of due process and equal protection, and reinterpreted the Bill of Rights and its guaranties, especially in the areas of free expression and criminal procedure. Although the Equal Rights Amendment had failed to be ratified by the necessary three-fourths of the states, the Court in a series of decisions had essentially implemented its purpose, giving women full and equal rights before the law.
At least one group, however, had not benefited from this revolution—homosexuals. The law had traditionally viewed homosexuality as both a moral sin and a criminal act. The detestation could be seen in how the great English law writer, Sir William Blackstone, treated it at the time of the founding of the American republic. Blackstone hesitated to even discuss something “the very mention of which is a disgrace to human nature . . . a crime not fit to be named.” Laws criminalizing homosexual acts had been brought over by the colonists from the Mother Country, and after the American Revolution, all of the states had written such strictures into their legal codes. This historic view of homosexuality as a crime against nature, a moral evil condemned by the common law, played a major role in the majority opinion in Bowers v. Hardwick.
According to some commentators, part of the reason is that gay and lesbian protests for civil rights came later than the movements to secure civil rights to people of color or equality to women. Homosexuality remains misunderstood by many people even in the early twenty-first century; ignorance, fear, and loathing were even more widespread prior to the Stonewall riots of June 28, 1969, which prompted many gay and lesbian groups to agitate for equal protection of their rights under law. In fact, the Supreme Court—with its previous rulings on civil rights and freedom of speech—made that protest possible.
Gay and lesbian groups also noted that compared to Europe, the United States remained the most homophobic of all Western democracies. France and the Netherlands had decriminalized gay and lesbian sex as early as 1810, Belgium in 1867, Italy in 1889, Spain in 1932, the Scandinavian countries between 1930 and 1970, Great Britain in 1967, and Germany in 1969. In 1981 the European Court of Human Rights had ruled in Dudgeon v. United Kingdom that statutes outlawing homosexual sex acts were invalid under the European Convention on Human Rights, a ruling binding on all twenty-one nations then belonging to the Council of Europe.
In addition, thanks to gay and lesbian legal activists, some state courts had begun to consider whether the right to privacy—as articulated either in the federal Constitution, state constitutions, or the common law—extended to private sexual behavior by consenting adults. In 1980 the highest court in New York had agreed that the right to privacy protected by the New York constitution rendered invalid that state’s sodomy law (People v. Onofre). The Model Penal Code proposed by the National Conference of Commissioners on Uniform State Laws in 1970 did away with sodomy among consenting adults as a crime, and between 1971 and 1983, nearly two-thirds of the states considering adoption of the Model Penal Code repealed their sodomy statutes. Just as gay and lesbian rights groups thought they might be turning the legal corner, however, the AIDS epidemic hit, and suddenly homosexuals had to deal with one more stigma as thousands of gay men began to sicken and die from the disease. Fear of contagion, and belief that the epidemic was God’s retribution for gay lifestyles, added to the onus of homosexuality. AIDS stalled reform dead in its tracks; between 1984 and 1991, not a single one of the states considering the Model Penal Code repealed its sodomy laws, and in some states there was agitation to reinstate such laws.
Conservatives in the 1980s had also stepped up their attack on much of the postwar constitutional expansion of rights, especially the right of privacy in general and of a woman’s right to an abortion in particular. In addition, some moderates who agreed with the substance of the Court’s ruling in Roe v. Wade nevertheless questioned the wisdom of the Court’s decision to hear that case at a time when many state legislatures were already successfully modernizing their nineteenth-century laws and making safe and legal abortions available to women. Other scholars raised additional questions not just about the legitimacy of a right to privacy, but if it did exist, what its limits were. There is no question that the justices had this concern in mind when they agreed to hear Bowers v. Hardwick.
Gay and lesbian activists saw the growing antipathy toward the expansion of rights as a reason to press their attack on sodomy laws. The facts of the case—two men arrested in the privacy of their home for behavior that hurt no one, the apparent targeting of a discrete group by police, and the fact that the acts defined in the Georgia law, although they applied to all persons, were only enforced against homosexuals—all seemed to fit with the type of rights the Court had articulated over the previous two decades. The Court had grown more conservative with the addition of justices appointed by Richard Nixon and Ronald Reagan; one or two more such appointments and there might be no chance of winning rights for homosexuals in the foreseeable future.
By refusing to hear the Virginia case, Doe v. Commonwealth’s Attorney, the Court had avoided the issue because the lower court had upheld the Virginia statute; it was impossible to do so in Bowers v. Hardwick, since refusing to hear the case would have meant upholding the decision that sodomy laws violated an individual’s fundamental rights. At least two justices, White and Rehnquist, wanted to take the Hardwick case in an effort to limit Roe and quash efforts to extend the right of privacy. More liberal justices, including Brennan and Marshall, who had dissented in Doe, thought there might be five justices favorable to Hardwick. Nearly everyone believed that the critical vote would be that of Justice Lewis F. Powell Jr. In oral argument he closely questioned Professor Lawrence Tribe of Harvard, who argued Hardwick’s case, about the limits of his claim. Did Tribe want to strike down every law against consensual sexual behavior? Did he want to do away with prohibitions against incest or bigamy or prostitution? Tribe had attempted to show that all Hardwick wanted was the same right to privacy regarding his sex life that straight people enjoyed for theirs. At the time, no one knew that one of Powell’s law clerks, Michael Mosman, a conservative Mormon, had given the justice a twelve-page memorandum arguing against the extension of a constitutional right to privacy to homosexuals. One phrase in Mosman’s memo caught Powell’s eye. If Hardwick won, Mosman said, it would open the doors to unchecked sexual freedom because “no limiting principle comes to mind.” The idea of “no limiting principle” drove Powell’s questioning of Tribe.
Nonetheless, at their conference the following Wednesday, Powell voted to affirm the lower court decision invalidating the antisodomy law. As a matter of course Powell preferred not to overrule lower courts unless there was a clear and convincing reason to do so. He may also have been swayed by the comments of Brennan, Marshall, and Harry Blackmun, who believed that the case was controlled by two strong precedents—Loving v. Virginia (1967), which struck down anti-miscegenation laws and upheld the right of people to marry whom they loved, even across racial lines, and Stanley v. Georgia (1969), which had voided an obscenity statute on the grounds that people could read or view whatever they wanted in the privacy of their homes. It appeared as if “the privacy of their homes” was the type of limiting principle Powell needed. But he remained torn. While he favored the right to privacy he knew little about homosexuality and believed he knew no gay men, although as it happened one of his clerks was gay. He played with the idea of the Eighth Amendment ban against cruel and unusual punishment, since the Georgia statute criminalized behavior that contemporary psychiatric thought believed beyond the control of the individual.
With Justice John Paul Stevens joining them, five votes existed to overturn Georgia’s sodomy statute, along with those of other states that still criminalized such behavior. Chief Justice Burger and Justices White, Rehnquist, and O’Connor voted to overturn the appellate court and sustain the law. As the senior justice in the majority, Brennan assigned the opinion to Blackmun.
Powell, however, had not fully made up his mind, and in the days following the conference he came under increasing pressure to change sides. Chief Justice Warren Burger wrote a long letter to Powell attacking the American Psychiatric Association’s depiction of homosexuality as an uncontrollable addiction. At the top of the page, Powell wrote, “There is both sense and non-sense in this letter—mostly the latter.” But if Burger did not sway him, Mosman did. He wrote a second memo urging Powell to change his vote, and argued that the only real issue before the Court was whether homosexual sodomy was a fundamental right. The justice, he knew, did not believe it was, and the question of whether such acts should be criminalized, Mosman argued, should be left for another day. Powell agreed, and changed his vote, giving the supporters of the Georgia law a one-vote majority. Burger reassigned the case to Byron White, who quickly wrote an opinion that would have cheered the most homophobic heart.
White began by denying that the Constitution conferred any fundamental right upon homosexuals to engage in sodomy: “Moreover, any claim . . . that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.” While admitting that the courts had expanded the protection of the Bill of Rights through the due process clause of the Fourteenth Amendment, only rights “deeply rooted in the Nation’s history and tradition” or “implicit in the concept of ordered liberty” could be included. White noted that until 1961 all fifty states outlawed sodomy and that twenty-four states as well as the District of Columbia continued to do so in 1985. Against this history, he dismissed the assertion that sexual freedom was a fundamental right as “at best, facetious.”
As for the argument that because such conduct had taken place in one’s home it was somehow entitled to greater protection, White would have none of it. Stanley, he claimed, had protected certain activities within the home, but it had been firmly grounded in the First Amendment. If the Court were to approve of homosexual sexual activity on the grounds of a right to privacy in one’s home, then it would also have to insulate against prosecution for adultery, incest, and other sexual crimes that took place in the home, and this the Court was unwilling to do. As one commentator noted, not a single sentence of White’s opinion “expressed any understanding of the fact that the case involves human beings who have needs for intimacy, love and sexual expression like the rest of us. Not a single sentence acknowledges the human anguish that anti-homosexual statutes can create.” Many people noted that White seemed to be gunning not so much for homosexuals as for the very idea of a constitutional right to privacy in the first place.
The harshness of White’s opinion drove Powell to write separately, but he did not withdraw his vote, thus making White’s opinion authoritative for the next two decades. Powell issued a two-paragraph concurrence that while upholding the law he believed that homosexual conduct ought not to be punished by incarceration, since that would violate the Eighth Amendment’s ban against cruel or unusual punishment. The concurrence, as his biographer noted, was “justly ignored.” The chief justice also entered a short concurrence, emphasizing his belief that absolutely nothing in the Constitution could be construed to prohibit a state from outlawing such behavior.
Both of the dissenting opinions, one by Blackmun and the other by Stevens, emphasized the right of privacy as the key issue in the case, rather than the fact that the behavior in question was that of homosexual sex. Blackmun did depict gays as victims of prejudice and as individuals worthy of constitutional respect. Both justices spent most of their dissents discussing the nature and extent of what they considered a basic constitutional right, rather than explaining why Georgia’s law did not meet the standards necessary for state action to impinge on fundamental rights. Quoting Louis Brandeis in Olmstead v. United States (1928), Blackmun said “this case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’”
The contrast between the majority and dissenting opinions could not be sharper. Where White had been harsh in dismissing the claims of gays to be secure in their personal choices, and practically dismissive of a constitutional right to privacy, the dissents emphasized the personal anguish of those affected by the law and the powerful protections embodied in constitutional rights to protect minorities against the bigotry or conventional moral standards of the majority. Unless one could show that harm would result to others, the right of personal autonomy should be fully protected.
Years later, in 1990, after he had retired from the bench, Powell told students at New York University Law School that his vote in the case had probably been a “mistake,” although he also asserted that because no one had actually been prosecuted under the law Hardwick’s was a frivolous case. That confession hardly consoled gay and lesbian activists. Thomas Stoddard, the executive director of the Lambda Legal Defense and Education Fund, declared that “for the gay rights movement, this is our Dred Scott case.” The nation’s highest court, he said, “has expressed a certain distaste for gay men and women and suggested that they may be treated differently from other Americans.”
Michael Hardwick did not serve any jail time, and in the years following the decision became an activist for gay rights. On October 13, 1987, in a carefully staged, six-hour display of civil disobedience, Hardwick and 571 other demonstrators were arrested in front of the Supreme Court for protesting against the decision that bore his name. He moved back to Florida, where he died in 1991 at the age of thirty-seven, purportedly from AIDS.
Over the next several years lower courts relied on Hardwick to dismiss claims of unconstitutional discrimination against gays and lesbians; a group constitutionally subject to criminal penalties for its behavior could reasonably be distinguished from other groups. The one bright spot for gays and lesbians was that not a single state that had earlier done away with its sodomy statutes recriminalized the practice after the decision, and in fact, as the AIDS crisis eased, other states actually began repealing their laws or seeing state courts strike them down under state constitutional grounds, as had happened in Onofre. Gay and lesbian groups continued to push for equal rights, and saw their efforts rewarded with numerous state and local ordinances prohibiting discrimination on the basis of sexual preference. In a first step toward acceptance of gays and lesbians in the military, President Bill Clinton secured the “don’t ask, don’t tell” policy that recognized gays were of value in serving their country. Also, unlike Presidents Reagan and George H. W. Bush, Clinton saw and treated gays as an important political group. The campaign to secure gay rights would take another great leap forward in 2003, when the Supreme Court reversed Bowers v. Hardwick in Lawrence v. Texas. Before the justices got there, however, they decided three intervening cases that, at best, sent mixed signals to the gay community and also to its adversaries.
The first of these cases, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), involved a Massachusetts law forbidding discrimination on the basis of sexual orientation in a place of public accommodation. A coalition of gay and lesbian groups had successfully argued in state court that the law applied to the annual St. Patrick’s Day parade in Boston; they wanted to participate and to carry a banner declaring who they were. On appeal Justice David Souter (appointed to the Court in 1992 to replace William Brennan) spoke for a unanimous bench in holding that the state law could not be applied to the expressive decisions of a private parade; the free speech rights of the organizers of the parade permitted them to include or exclude whom they wanted. The coalition’s attempt at public expression was overridden by the rights of the parade organizers.
Five years later, in Boy Scouts of America v. Dale, Chief Justice Rehnquist (who took over the center chair from Burger in 1986) had a bare 5–4 majority upholding a similar claim against the Scouts. James Dale had been a model Scout, reaching the highest rank of Eagle and then becoming an assistant troop leader. While a student at Rutgers University, Dale had come out of the closet and announced that he was gay. After the leaders of the local Boy Scout council learned this, and that Dale had become president of a gay rights group at Rutgers, they expelled him from his leadership position. Dale went to court and successfully argued that a New Jersey civil rights law prohibited any “public accommodation” from discriminating on the basis of sexual orientation. The Scouts pointed to their own policy statements depicting homosexual conduct as inconsistent with the requirement that a Scout be “morally straight” and “clean.” In other states the Scouts, facing similar suits, had argued that it was a private club and not a public accommodation, and that as such, it enjoyed a First Amendment freedom of association to include or exclude whomever it pleased.
After losing in state court the Boy Scouts appealed to the Supreme Court and won a ruling that kept the antigay policy intact. Rehnquist acknowledged that the government can override a group’s associational rights to promote a compelling interest, but courts should also defer to a private group’s view of what might interfere with its constitutionally protected expression. “Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message . . . that the Boy Scouts accept homosexual conduct as a legitimate form of behavior.”
The two dissenting opinions by Stevens and Souter—both of whom had joined the majority in Hurley—did not disagree so much with Rehnquist’s interpretation of the law but of the facts. Quoting from the Scouts’ handbook, Stevens declared that “it is plain as the light of day that neither one of these principles, ‘morally straight’ and ‘clean,’ says the slightest thing about homosexuality.” Since the Scouts had not proclaimed any antigay policy in its official handbook, then Hurley was not controlling. Dale did not flout his sexual orientation, and no evidence existed that he wanted to send any kind of message.
There is a certain blindness in the opinions in both Hurley and Boy Scouts as to the so-called “private” nature of both organizations. While the parade-organizing group may have been a private entity, the parade itself was far from it, requiring massive support from the city of Boston in the form of traffic control, fire and police protection, and cleanup of the massive amount of debris generated by the event. Since St. Patrick’s Day long ago lost any semblance of an all-Irish or all-Catholic event, there had been non-Irish groups participating for years. In fact, following a state court ruling the same gay group had marched uneventfully in the 1992 parade, along with 10,000 other participants before a crowd estimated at 750,000 people.
Similarly, the Boy Scouts of America hold a charter of incorporation from Congress, and Boy Scout troops as well as the younger division of Cub Scouts meet around the country in a variety of public places, including schools and community centers. Their promotional materials make no mention of discriminating against gays, and in fact emphasize that they welcome all boys as members. The two cases are the direct descendants of Bowers, and continued the antigay bias of that Court.
In between these two decisions came Romer v. Evans (1996), giving gay activists their first real glimmer of hope that the Supreme Court might be moving away from its earlier stance.
The political activity of gay and lesbian advocacy groups in Colorado had met with success in the form of numerous municipal ordinances that banned discrimination in jobs and housing on the basis of race, gender, or sexual orientation. In addition, the state legislature had repealed its sodomy statute so that gay sexual activity was no longer subject to criminal penalties. In the late 1980s, however, Colorado Springs saw an influx of socially conservative evangelical Christian groups, who stood opposed to the legal and political gains made by homosexuals. Had they merely opposed the local laws and worked to repeal them they would have been within the accepted American political tradition. Instead, they did something so extraordinary that it shocked many people, including some of the justices on the Supreme Court.
By circulating and signing petitions, these groups got a constitutional amendment on the fall ballot, which specifically repealed any state or local law that protected people who were “Homosexual, Lesbian or [of] Bisexual Orientation,” and prohibited the passage of any legislation in the future that would protect such people in their “conduct, practices or relationships.” In November 1992, 53 percent of the voters of Colorado approved Amendment 2. Richard G. Evans, an administrator in Denver, one of the cities whose antidiscrimination laws had just been voided, declared “it was as if 800,000 people had said [to homosexuals] ‘You’re not equal to us.’” He sued Roy Romer, the governor of Colorado, to have Amendment 2 nullified as a violation of the Fourteenth Amendment’s equal protection clause. The Colorado Supreme Court agreed with the trial court that Amendment 2 was unconstitutional in that it named a specific class, and the state appealed to the Supreme Court.
In oral argument both Timothy Tymkovich, the attorney general of Colorado, and Jean Dubovsky, the lawyer arguing for Evans, came in for heavy questioning, but Tymkovich, as one witness observed, had his head handed to him, especially by Anthony Kennedy. The justice appeared visibly appalled by Amendment 2, which in effect closed off all of the normal political venues by which any citizen or group of citizens could seek redress of grievances. In essence, it read gays, lesbians, and homosexuals out of the social and political order. This fact did not seem to bother the attorneys general of Alabama, California, Idaho, Nebraska, South Carolina, South Dakota, or Virginia, who filed amici briefs urging the justices to overturn the Colorado high court, and they were joined by such conservative stalwarts as the American Center for Law and Justice, the Christian Legal Society, and the Family Research Council.
A far greater number of friend of the court briefs urged the affirmation of the Colorado decision, and these included the attorneys general of Oregon, Iowa, Minnesota, Nevada, Washington, and Maryland. Briefs also came from the District of Columbia and from a number of cities like Atlanta, which also had antidiscrimination measures, as well as from some of the leading constitutional scholars in the country, including Lawrence Tribe of Harvard; John Hart Ely, the former dean of Stanford Law; Philip B. Kurland of the University of Chicago; and Kathleen M. Sullivan of Stanford. The wide range of amici briefs pointed up not only how successful gay and lesbian groups had been in advocating for equal rights, but also how that success had inflamed fears of social conservatives and many conservative Christian groups. According to one of his clerks, Kennedy was particularly impressed by the brief filed by Professor Tribe, who had been the losing counsel in Hardwick. A majority of the justices also seemed impressed by the argument that the Court could strike down Amendment 2 without revisiting Hardwick; the debate over Amendment 2 did not deal with sexual practice, but with political and social rights.
In a clear departure from the tone that had marked that earlier case, Kennedy spoke for six of the justices—himself and Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer—in striking down Amendment 2 and affirming the decision of the Colorado court. The opening sentence showed exactly where the Court was going: “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens.’ Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid [Amendment 2].”
Kennedy seemed especially outraged by the notion that the law cut off any avenue by which homosexuals could seek political or judicial recourse against discrimination. Moreover, a fair reading of the wording in Amendment 2 could lead to the conclusion that “it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” Quoting from an earlier opinion of Justice Brennan, the constitutional idea of equal protection unequivocally tells us this “cannot constitute a legitimate governmental interest.” Not once in his opinion did Kennedy refer to Hardwick, although he referenced many of the leading cases in civil rights.
Justice Antonin Scalia, joined by Chief Justice Rehnquist and Justice Clarence Thomas, referred almost immediately to Hardwick, and he saw no harm in what he described as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to reverse those mores through use of the laws.” That objective, as far as he was concerned, was “unimpeachable under any constitutional doctrine.” He then attacked Kennedy’s opinion on a point-by-point basis, but underlying the entire dissent was a belief that what was really at issue was not an unconscionable effort to deny some group equal rights, but the vile nature of that group’s sexual practices, which offended many people. Scalia felt that Hardwick should have been the deciding precedent, and not the civil rights cases cited by Kennedy.
Romer v. Evans is seen by many as a major turning point in the battle for gay rights. Kennedy gave advocates what they had been seeking all along: recognition that prejudice on the basis of sexual orientation was no more acceptable under the Constitution than discrimination because of race or religion. Where Scalia indicated that the criminalizing of their sexual activity was sufficient constitutional justification for setting gays and lesbians apart as a class, Kennedy countered by citing several nineteenth-century cases that had approved harsh treatment of Mormons—then a vilified sect—and which had long been disavowed by the Court. No group, Kennedy argued, could be made inferior and discriminated against under the equal protection clause. Even though a closely divided Court in 2000 would uphold the right of the Boy Scouts to keep gays out of leadership positions, Romer showed that a majority of the Court no longer shared the homophobic sentiment that had seemingly animated Hardwick. Gay and lesbian advocacy groups believed they could secure a reversal of Hardwick, and they set out to find the right test case.
On September 17, 1998, police officers responding to a reported weapons disturbance in an outskirt of Houston, Texas, entered an apartment occupied by John Geddes Lawrence, a fifty-five-year-old medical technician. The complaint came from a neighbor, Robert Royce Eubanks, who told the police that because of a domestic fight or a robbery there was a man with a gun “going crazy.” Harris County deputy sheriff Joseph Quinn entered the unlocked apartment with his gun drawn. (The lack of a warrant did not figure in any of the subsequent litigation.) Once in the apartment they found Lawrence engaging in sex with his thirty-one-year-old companion, Tyrone Garner. Police arrested both men, held them in custody overnight, and then charged them under a Texas criminal statute that forbade “deviate sexual intercourse” between parties of the same sex. They were tried, found guilty, and fined $200 apiece. The neighbor, Eubanks, who had earlier been accused of harassing Lawrence and with whom Garner was also romantically involved, later admitted that he had been lying, pleaded no contest to charges of filing a false police report, and served fifteen days in jail.
The Lambda Legal Defense and Education Fund took on their case, and appealed it up through the Texas court system on grounds that it violated the due process of law protected by the Fourteenth Amendment and the state constitution, as well as the right to privacy. As expected, they lost at each stage, with the courts relying on Bowers v. Hardwick, but they believed that after Romer they now had a chance to get the Supreme Court to reverse that decision. The justices accepted the case on December 2, 2002, and heard oral argument on March 26, 2003; three months later they handed down their decision in Lawrence v. Texas. Paul Smith, the lawyer who represented Lawrence, had once been a law clerk to Lewis Powell, and later in life had come out of the closet to acknowledge that he was gay.
The Court asked counsel to address three questions:
1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violated the Fourteenth Amendment guarantee of equal protection of the laws;
2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the due process clause of the Fourteenth Amendment; and
3. Whether Bowers v. Hardwick should be overruled.
Unlike the Georgia statute, which had penalized acts defined as sodomy no matter who committed them, the Texas law applied only to same-sex practices, and thus specifically targeted homosexuals. If the Court had meant what it said in Romer, this by itself should have been enough to overturn the Texas law as well as similar prohibitions in twelve other states. The justices recognized that, unlike in Romer, they could hardly strike down the Texas law and leave Hardwick in place. The question mark was Justice Sandra Day O’Connor, who had been in the majority in Hardwick and also in Romer, and was widely considered the swing vote on the Court, the fifth vote to make a majority. She would probably be willing to strike down the Texas statute because it was so obviously discriminatory, but would she be willing to overrule Hardwick?
In the conference five justices—Stevens, Kennedy, Souter, Ginsburg, and Breyer—voted not only that the Texas law should be struck down, but that Hardwick should be overruled as well. O’Connor agreed with the first point but not the second, while Chief Justice Rehnquist, along with Justices Scalia and Thomas, would have upheld the law. With the chief justice in the minority, John Paul Stevens as the senior justice in the majority had the authority to assign the case. He might well have wanted to keep it for himself, since he had written such a forceful dissent in Hardwick, but he chose Anthony Kennedy for two reasons. First, Kennedy’s opinion in Romer formed the jurisprudential basis of the decision in this case. Second, Kennedy was considered a moderate conservative; a decision that would upset social conservatives and evangelical Christians would be better received if it came from a conservative rather than a liberal (although Stevens never saw himself as a liberal; he always said he never changed but that the Court moved to the right). In the end, Stevens got exactly what he hoped for—an analytically powerful opinion that also rang with moral fervor.
Courts are as a rule reluctant to overturn precedents, especially in cases that had been decided recently. Hardwick was less than two decades old, and three of the justices in that case still sat on the Court. Kennedy understood that in order to justify such a step, he had to show that the earlier opinion failed on jurisprudential as well as societal grounds. He began with what is the boldest statement of a right to privacy articulated by a modern Court (some of whose members denied even the existence of such a right):
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
After reviewing the facts, Kennedy went to the nub of the case. The only way that the Court could agree that the sexual conduct of two consenting adults fell within the liberty provisions of the due process clause was to reexamine Hardwick. He questioned White’s framing the issue as whether the Constitution “confers a fundamental right upon homosexuals to engage in sodomy,” and charged that how White phrased the issue “discloses the Court’s own failure to appreciate the extent of the liberty at stake.” The very wording “demeans the claim of the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Kennedy went on to compare White’s objectification of gay and lesbian sexuality to the way anti-Semitism and racial prejudice reduced the sexuality of Jews and blacks to hateful terms.
A fair-minded understanding of the basic constitutional right of privacy, Kennedy declared, would take seriously, in gay as well as straight sexual relations, the accompanying integrity of the connection between sexual expression and companionate friendship and love. “When sexuality finds overt expression in intimate conduct with another person,” Kennedy wrote, “the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” The state, he concluded, “cannot demean [homosexual] existence or control their destiny by making their private sexual conduct a crime.”
For those who argued that the Constitution mentioned neither privacy nor rights given to gays, Kennedy responded that the Framers had not drafted the document in specific terms, because they did not claim to know “the components of liberty in its manifold possibilities,” but were themselves open—as the Court needed to be—to new arguments and experiences. “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
The majority held the Texas statute unconstitutional in that it penalized only acts committed by same-sex couples, that acts between consenting adults in the privacy of their home is a liberty and privacy interest protected by the due process clause, and that Bowers v. Hardwick was overruled.
Justice O’Connor concurred in that part of the opinion overturning the Texas statute because it discriminated against homosexuals, but she defended the right of a state to outlaw certain types of acts, provided it applied the ban on a nondiscriminatory basis. For her the case should have been decided not on a right to privacy embedded in the due process clause, but on the manner in which the law was enforced measured against the equal protection clause.
Justice Scalia, dissenting for himself, Rehnquist, and Thomas, attacked the majority for its inconsistency. It had refused to overturn Roe v. Wade, a bad decision, but had no qualms in reversing what he considered a perfectly good precedent in Bowers v. Hardwick. Essentially, Scalia, like White, did not believe in a constitutional right to privacy in general or its application to support either abortion or sodomy in particular. He dismissed Kennedy’s careful historical analysis that showed how attitudes toward homosexuals had changed over the years, because he considered that constitutionally irrelevant; originalist intent was all that mattered, and a strict construction of the Constitution and the intent of its Framers would make clear that laws prohibiting abortion as well as sodomy were perfectly acceptable. Only a change in the Constitution itself could alter that fact.
Much of Scalia’s hostility is aimed at the fact that Kennedy and O’Connor had coauthored the opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which had kept the basic premise of Roe v. Wade intact, and much of his dissent is aimed at Roe and the idea of privacy as a constitutional right. But it also shares White’s disdain of homosexuals and the idea that as a group they enjoy any particular rights. “The matters appropriate for this Court’s resolution are only three,” he concluded. “Texas’s prohibition of sodomy neither infringes a ‘fundamental right’ (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.”
Justice Clarence Thomas entered a short dissent of his own in which he termed the Texas law “uncommonly silly.” Were he a member of the Texas legislature, he “would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.” But he could find no constitutional objection to Texas doing so.
Supporters of gay rights as well as opponents reacted vociferously to the decision, because both sides in the “culture wars” over the place of gays and lesbians in American society considered the maintenance or defeat of sodomy laws as central, at least symbolically, to their causes. Elizabeth Birch, the executive director of the Human Rights Campaign, the nation’s largest gay lobby, declared, “This is a historic day for fair-minded Americans everywhere. We are elated.” The executive director of Lambda Legal rejoiced that the Lawrence decision “closed the door on an era of intolerance and ushered in a new era of respect and equal treatment for gay Americans.”
Opposition groups looked at matters differently. Tom Minnery, a vice president at Focus on the Family, a conservative religious group, attacked the Court for continuing to “pillage its way through the moral norms of our country.” The American Society for the Defense of Tradition, Family, and Property saw the consequences of Lawrence as even worse than those of Roe v. Wade, for in granting constitutional protection to sodomy, the Court “renounced the duty imposed by Natural Law on every government to uphold morality in striving for the common good.”
What both sides agreed upon, but reacted to far differently, was the belief that Lawrence would be the opening wedge in a campaign to constitutionalize same-sex marriage. David Smith of the Human Rights Campaign called the case a giant step forward, and “contained in there are links to marriage, child-rearing . . . it’s just not too far a leap.” Jan LaRue, chief counsel for Concerned Women for America, a conservative Christian political action group, had no doubt that “homosexual activists will try to bootstrap this decision into a mandate for same-sex marriage. Any attempt to equate sexual perversion with the institution that is the very foundation of society is as baseless as this ruling.”
In fact, Justice Kennedy’s opinion did not mention same sex-marriage, although Justice Scalia’s dissent implied that if you struck down the sodomy laws then there were all sorts of other laws regarding sex and homosexuality that could also be challenged. The Court’s ruling did trigger a backlash as several states adopted so-called defense of marriage laws or even state constitutional amendments banning same-sex marriage. On October 3, 2003, President George W. Bush proclaimed October 12–18 Marriage Protection Week, and declared that marriage is “a union between a man and a woman.” His administration, he promised, would work to support that institution.
Then on November 18, 2003, the worst fears of the conservatives seemed to come to life as the Supreme Judicial Court of Massachusetts ruled that the Commonwealth had failed to “identify any constitutionally adequate reason” to deny gay or lesbian couples the right to marry. In the ensuing legal conflict, both sides would look to Lawrence for either confirmation of their claims for equality or as evidence of the moral disintegration of the nation.
In recent years, however, the momentum seems to be shifting in favor of gay marriage. Attorney General Eric Holder announced that the Obama administration would no longer support the federal Defense of Marriage Act in court. After California voters passed a state constitutional amendment banning marriage between gays, a federal district court ruled the amendment unconstitutional in that it violated the equal protection clause. Recent polls showed for the first time that more than 50 percent of the nation supported gay marriage, and among younger people that number was 70 percent. Then in June 2011 the New York legislature enacted a statute permitting marriage between gays. It is likely that the California case, because it involves the Fourteenth Amendment and is already in the federal courts, may eventually wind up in the Supreme Court. But the New York statute should stand, since there is apparently no constitutional bar to a state defining marriage, a power traditionally seen as part of the state’s sovereign authority.
Bowers v. Hardwick, 478 U.S. 186 (1986)
Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976)
Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) P52
Griswold v. Connecticut, 381 U.S. 479 (1965)
Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985)
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995)
Lawrence v. Texas, 539 U.S. 558 (2003)
Loving v. Virginia, 388 U.S. 1 (1967)
Olmstead v. United States, 277 U.S. 438 (1928)
People v. Onofre, 51 N.Y.2d 476 (1980)
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Roe v. Wade, 410 U.S. 113 (1973)
Romer v. Evans, 517 U.S. 620 (1996)
Stanley v. Georgia, 394 U.S. 557 (1969)
The best single volume covering the issues from Hardwick to Lawrence is The Sodomy Cases (2009), by David A. J. Richards, although the older Courting Justice: Gay Men and Lesbians v. The Supreme Court, by Joyce Murdoch and Deb Price (2001), is quite useful. Michael Hardwick talks about his experience in Peter Irons, The Courage of Their Convictions (1988), chap. 16. Justice Powell’s role is treated in John C. Jeffries Jr., Justice Lewis F. Powell, Jr.: A Biography (1994), while Justice Kennedy’s views are examined in Helen J. Knowles, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009), and Frank J. Colucci, Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (2009). For the role of lawyers in gay rights litigation, see Ellen Ann Anderson, Out of the Closets and into the Courts (2006).