Last edited: December 08, 2004


Bowers v. Hardwick at 15

Southern Voice, July 12, 2001
1095 Zonolite Road, Atlanta, GA 30306

By Laura Douglas-Brown

ATLANTA—"To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

The narrow 5-4 decision, in the case of a gay Atlanta man arrested in his own bedroom, sparked immediate outrage: Three days after the July 30, 1986, ruling, more than 200 protesters gathered at Atlanta’s Richard B. Russell federal building to denounce the decision.

At the time, 24 states still had sodomy laws on the books: 19, including Georgia’s, were broad prohibitions against anal and oral intercourse, while five forbade homosexual acts specifically.

Today, 13 states have sodomy laws, and only three of the gay-specific statutes still stand, according to the Lambda Legal Defense & Education Fund. And although Georgia’s sodomy law was overturned by the state Supreme Court in 1998, activists and attorneys say the stridently worded ruling in Bowers v. Hardwick continues to have impact, both in court cases around the country and in the activists it helped inspire here in Atlanta.

"The Hardwick decision continues to say that who you are, in many states, is a felony, and that’s a big deal," said attorney Kathleen Wilde, who represented gay Atlanta bartender Michael Hardwick throughout his challenge to the law. "People are scared, and that keeps people in the closet and afraid to come out."

A tale of two Michaels

Michael Bowers, the Georgia Attorney General who defended the law, reportedly once said his only regret is that his name did not appear second on the case, "because then it wouldn’t look like I’m the homosexual."

Now an attorney with the Atlanta firm Meadows, Ichter & Trigg, Bowers said last week the infamous case "is just not something I think about now."

Asked to discuss his thoughts about the case 15 years after the decision, Bowers declined.

"I’d rather not," he said. "I did my job as best I knew how, and reasonable people can disagree about it, but that’s all I want to say about it now."

Michael Hardwick cannot reflect on the case that bears his name: He died in Gainesville, Fla., on June 13, 1991, reportedly from complications from AIDS. His obituary did not mention either his sexual orientation or his role in challenging the sodomy law.

Hardwick "was incredibly courageous," remembered Wilde. "He was quite a warm, wonderful person, and he was an artist, and he became a very articulate speaker for the cause."

Still, the case that would ultimately bring Hardwick into the national spotlight—and legal history—began simply enough. In 1982, Hardwick, a bartender at an Atlanta gay club, left the bar after his shift drinking a beer. He threw it in a trash can, but was cited by police for public drinking.

According to Wilde, the ticket was confusing: It said Wednesday but cited Tuesday’s date. When Hardwick missed the court date, a warrant was issued for his arrest. Although Hardwick paid his court fine, the warrant wasn’t retracted, and a police officer took the "extraordinary step" of going to his home at 3 a.m. to serve the warrant, Wilde said.

Let into the home by a roommate, the officer entered a bedroom where he saw Hardwick engaged in sodomy with a male partner and arrested him. Fulton County’s district attorney declined to prosecute the case, a felony that carried a prison sentence of up to 20 years.

But Hardwick decided to file suit to overturn the law, and many activists thought the case—a man arrested in his own bedroom—offered the perfect opportunity to argue that the law violated privacy rights. The 11th Circuit Court of Appeals agreed, but as Georgia’s Attorney General, Bowers appealed to the U.S. Supreme Court and won.

But his vigorous defense of Georgia’s sodomy law would also ultimately play a role in ending Bowers’ career in public office. In 1998, Bowers resigned as attorney general to seek the Republican nomination for governor. He lost that bid after admitting a long-term extramarital affair—in violation of another of Georgia’s archaic sex laws, the law against adultery.

That hypocrisy helped put the nail in the coffin of Bowers’ political career, gay political activists said.

"Bowers won the battle, but lost the war," said Harry Knox, executive director of Georgia Equality, the nonpartisan statewide gay political group.

"If anyone wants to say there was a final chapter to [Georgia’s sodomy law saga], that may be it—the hypocrisy of Bowers having to admit his indiscretion," agreed longtime gay political lobbyist Larry Pellegrini.

"Afterwards, there was no hero left for those who wanted to restore the sodomy law," he said. "He was their focus, and he was lost."

Precedent remains

Gay and lesbian Georgians no longer have to directly contend with the sodomy law, which had been used to justify everything from denying lesbian mothers custody of their children to banning detailed safer sex education.

Twelve years after the Hardwick case, in a landmark decision that shocked many gay rights advocates, the Georgia Supreme Court announced that it had struck down the 182-year-old sodomy law as unconstitutional based on the right to privacy guaranteed by the Georgia Constitution. The case involved a heterosexual man convicted of consensual sodomy with his 17-year-old niece. But gay rights activists said the decision’s biggest impact would be on gay residents.

"Georgia is now a free state," said Steve Scarborough, staff attorney with Lambda’s southern regional office and author of a persuasive "friend of the court" brief in the case.

But while Georgia residents are now "free," the Hardwick decision continues to have a "terrible impact across the country," said Harvard Law Professor Laurence H. Tribe, an expert in Constitutional law who argued Hardwick’s case before the Supreme Court.

The decision serves "as a ready excuse for much discrimination against gay men, lesbians and bisexuals — especially in matters of employment, family law and immigration — on the ground that individuals who are not heterosexual are by definition inclined to commit acts that remain crimes in many states of the union," Tribe said.

"The power of the excuse that Bowers v. Hardwick continues to provide should never be underestimated," Tribe said.

A legacy of activism

Still, while the U.S. Supreme Court’s decision in Bowers v. Hardwick was undeniably negative for gays, "some lingering effects have been positive," according to Pellegrini.

Outrage at the decision helped prompt record numbers of Georgia gays to get involved in political campaigns as voters and volunteers, he said, especially Bill Clinton’s 1992 presidential campaign. People realized that the only way to avoid such outcomes in the future would be to elect new leaders who would appoint new justices, Pellegrini said.

In addition to sparking the 1986 protest, the Hardwick decision and the sodomy law also played pivotal roles in energizing some of Atlanta’s best known gay activists.

Knox, now Georgia Equality’s director, said he discussed gay issues publicly for the first time when, as a senior at the University of Georgia in 1984, he gave a presentation in speech class about the then-ongoing Bowers v. Hardwick case.

"I felt it was really a denial of my most fundamental being," Knox said.

Pellegrini said he hadn’t come out publicly when the Supreme Court ruled in the case in 1986, but his first work lobbying the Georgia General Assembly came in 1991 when he volunteered to collect postcards from around the state from people who supported repealing the sodomy law.

Nearly five years after the Bowers v. Hardwick decision, Michael Bowers again took on gay rights issues when in 1991 he withdrew a job offer for lesbian attorney Robin Shahar because of her planned commitment ceremony with her female partner. Bowers cited both Bowers v. Hardwick and the sodomy law among his justifications for his actions in a court battle that lasted until 1998, when the U.S. Supreme Court refused to hear Shahar’s appeal, allowing an appeals court ruling in favor of Bowers to stand.

But while Bowers’ career in government has ended, Shahar’s has blossomed. She now serves as senior assistant city attorney for Atlanta, where she works on civil rights cases—including leading the legal fight to approve and implement Atlanta’s domestic partner benefits.

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