Last edited: December 31, 2004


Former Justice Powell Angers Gays with Hardwick Flip-Flop

Powell Admits Mistake, But Calls the Case Frivolous

Washington Blade, November 2, 1990

By Julie Brienza

Retired U.S. Supreme Court Justice Lewis Powell sent Gay advocates into a fury this week after he acknowledged he voted the wrong way in the historic 1986 Bowers v. Hardwick case, which ruled that the Constitution does not protect a right to privacy when it comes to engaging in homosexual sodomy.

Powell was the crucial swing vote in that 5-4 decision, which has been cited numerous times by the government and lawyers and legislators across the nation who have sought to retain state sodomy laws, bar Gays from the military, or prosecute people for homosexual acts.

"I think I made a mistake on that one," Lewis told a group of New York University law students on Oct. 18, according to a National Law Journal article published Oct. 29.

Powell, a Nixon appointee who retired from the high court in 1987, volunteered his comments about the Hardwick case when asked during a question-and-answer session following his speech whether he ever had any doubts about any of his decisions. He later publicly called the case "frivolous" and "not very important."

Powell, who was hearing cases in the U.S. Fourth Circuit Court of Appeals in Richmond this week, did not return repeated telephone calls from a. Blade reporter.

Powell acknowledged that he first voted to strike down the Georgia sodomy law, which was at issue in the Hardwick case, but then changed his mind shortly before the decision was rendered.

"But for Powell's vote we would have won the case," said Bill Rubenstein, director of the American Civil Liberties Union's Lesbian and Gay Rights Project. "I was appalled that he called it a frivolous case. The impact of that decision is one that Gays and Lesbians live with 24 hours a day, every day of our lives. It's horrifying because he still just doesn't get it."

The Hardwick case involved an incident in which police in Atlanta arrested Gay bartender Michael Hardwick in his home and charged him with engaging in sodomy with another man. The charges were dropped but Hardwick challenged the constitutionality of the state's sodomy law.

Powell, concurring with the majority, wrote that no right exists for homosexuals to engage in private, consensual sodomy. He added, however, that the sodomy law might be successfully challenged because it imposes a lengthy prison sentence for convictions. Such a sentence, wrote

Powell, might constitute cruel and unusual punishment, as prohibited by the Eighth Amendment to the Constitution.

"The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct," wrote Powell, in his own two-page concurring opinion. "But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right."

The primary reasons stated by the majority to uphold the Georgia sodomy I law were that "proscriptions against [homosexual sodomy] have ancient roots" and that there is "no connection between family, marriage, or procreation on the one hand and homosexual activity on the other." The court had previously recognized the right to privacy as protecting marital sex and related areas.

Justice Harry Blackmun (a Nixon appointee), writing in dissent for the four-member minority, noted that the Hardwick case raised privacy rights issues and said there could be no justification for the Georgia sodomy law to infringe on those rights.

"What was supposed to be a magnificent opinion became a magnificent dissent," said Evan Wolfson, staff attorney for the Lambda Legal Defense and Education Fund. "Now, years later, Powell recognizes that he made a mistake but then still has not grasped what the case meant to millions of Americans."

This year, the Hardwick decision was cited by the government as a reason to bar Gays from the military in the cases of Miriam Ben-Shalom and James Woodward. The high court in February refused to hear the appeals from the Army reserve sergeant and the Naval reserve ensign.

In Maryland last month, the state's highest court found that oral sex is prohibited between everyone except consenting heterosexual couples. The Maryland Court of Appeals cited the Hardwick decision to justify its ruling.

Wolfson said numerous states, most recently Missouri, have relied on the decision to uphold sodomy laws.

The ACLU's Rubenstein also pointed to an incident in Texas in which Dallas police used the state's sodomy law and the Hardwick decision to bar a Lesbian from police ranks.

"These laws are used against us all the time, even when we're not being hauled out of our bedrooms as Hardwick was." Wolfson said. "The other point that Powell missed is what Hardwick has done to the whole constellation or constitutional rights that affect our lives.

"It's a highly controversial and condemned decision, and I think this will give us more ammunition in undermining its validity. I'm glad he said it, although it infuriates me. I think of the waste of energy and resources and the mangling of lives that has gone on as a result of that decision in the last four years. It's another slap against us but at least it gets him on the record as saying we were right."

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