Last edited: December 08, 2004


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

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

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