Jurist’s Death Marks Legacy of Ignorance
San Jose Mercury News,
September 10, 1998
750 Ridder Park Drive, San Jose, CA 95190
Fax: 408-471-3792
Email: letters@sjmercury.com
By Deb Price
Courtly, gentle and kind. Lewis F. Powell Jr., who died Aug. 25 at age 90, was by all
accounts a decent man, someone capable of empathy and interested in justice. Yet when gay
Americans most needed Powell to rule wisely, he was guided by ignorance — with
disastrous results. Unable to grasp the human suffering he’d cause, Powell cast the
decisive vote in the 5-4 Supreme Court ruling that upheld anti-gay sodomy laws as
constitutional.
Now, 12 years later, we can partially assess the awful damage Powell’s swing vote
allowed the court to inflict.
The case was Bowers v. Hardwick. Georgia Attorney General Michael Bowers had appealed
to the Supreme Court after a lower court overturned his state’s sodomy law, which
like most such laws criminalized oral and anal sex. Georgia’s law was challenged by
Atlanta bartender Michael Hardwick, who’d been arrested in his bedroom while having
oral sex with another man. The arresting officer, let in by a house guest, had wanted to
see Hardwick about an unrelated matter.
Powell didn’t like the court to take gay cases. The gentlemanly Virginian’s
"reaction to the claim of gay rights was tortured and unsure. Never before had Powell
faced an issue for which he was by instinct and experience so uniquely unprepared,"
explains Powell biographer John C. Jeffries, Jr.
Never in his 78 years had Powell even met a gay person, or so he told fellow justices
at he wrestled with Bowers v. Hardwick. He repeated that claim to a clerk, a closeted gay
man.
On June 30, 1986, the court ruled against Michael Hardwick. Powell retired the next
year. He later called his sodomy vote a mistake but dismissed the case as
"frivolous" because Hardwick was never prosecuted. As for Hardwick himself, he
died of AIDS seven years ago at 37. Yet the ruling’s harsh impact is still being
felt.
Laws against private, consensual sodomy are very rarely enforced and usually apply to
heterosexual as well as homosexual activity. But they’re primarily used indirectly to
stigmatize gay people and justify treating us as a criminal class. Likewise, the Hardwick
ruling’s consequences are felt most often in court cases that don’t involve
sodomy.
"Courts have used (Hardwick) as a sort of blanket reference they throw in whenever
they want to just deny any kind of rights to lesbians and gay men," says Kevin
Cathcart, executive director of the Lambda Legal Defense and Education Fund.
Judges often cite Hardwick as an excuse for taking children away from gay parents,
denying visitation or adoption, and upholding the military ban.
And because of the Hardwick ruling, lawmakers in many states can still point to sodomy
laws as an excuse for not shielding gay people from discrimination. Arthur Leonard, author
of "Sexuality and the Law," notes that legislators say, "Well, you guys are
defined by a criminal statute. How can we enact protections for you?"
Meanwhile, the number of state sodomy statutes has fallen ever so slowly to 20. Since
the Hardwick decision, Kentucky, Montana, Nevada, Rhode Island, Tennessee and the District
of Columbia have stopped outlawing sodomy. After helping knock down Tennessee’s
sodomy law in 1996, attorney Abby Rubenfeld declared, "I spent four years working on
doing something that would have already been taken care of" if justice had prevailed
in Hardwick.
The Supreme Court isn’t likely to admit any time soon that sodomy laws are an
unconstitutional invasion of privacy. But in knocking down Colorado’s anti-gay
Amendment 2 two years ago, the court signaled that the Hardwick decision needn’t
continue to affect the outcome of equal protection cases. The majority opinion didn’t
even mention Hardwick.
As a result, fewer judges are using Hardwick. The respectful Amendment 2 decision sent
a message that "the Supreme Court has changed its position on gay people and the
Constitution," Lambda’s Cathcart adds.
Now, perhaps, most justices are beginning to get acquainted with the rights of gay
Americans.
Deb Price is the news editor at the Washington bureau of the Detroit News. Write to her
in care of the Mercury News, 750 Ridder Park Drive, San Jose, Calif. 95190.
Deb is online at debprice@erols.com
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