Last edited: December 31, 2004


Blackmun Predicted 1986 Sodomy Decision’s Reversal

Former Justice’s Papers Show Details Behind Bowers vs. Hardwick

Washington Blade, March 19, 2004

By Joe Crea

Former Supreme Court Justice Harry Blackmun, who wrote the dissenting opinion in Bowers vs. Hardwick, the 1986 case that upheld 24 sodomy statutes in the United States, was so confident in his opinion that he predicted his view would eventually become the law of the land.

Nearly 20 years later, Blackmun’s prediction came true when the Supreme Court ruled last summer in Lawrence vs. Texas to overturn the Bowers ruling and strike down state sodomy statutes.

Five years after his death, Blackmun is back in the news after his estate released his accumulated papers from his tenure on the Supreme Court.

The strident language in the majority opinion from the Bowers case, noting for example that, “proscriptions against sodomy have ancient roots,” seems harsh alongside the gentle and welcoming language in the majority’s opinion in Lawrence vs. Texas.

But Justice Blackmun, in his dissent in Bowers, argued for the right of privacy and criticized the state of Georgia’s narrow enforcement of its sodomy law.

“If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choices they have made is an ‘abominable crime not fit to be named among Christians,’” Blackmun wrote.

“His dissenting opinion in Bowers is a recognition of the humanity of gay people that the majority could not realize,” said Patricia Logue, senior counsel at Lambda Legal, a gay advocacy group. “It definitely foreshadowed Lawrence and it just held out a candle of hope at the time of that devastating majority opinion.”

According to a series of interviews Yale Law School professor Harold Koh conducted with the late justice, Blackmun told Justice Byron White — who wrote the majority opinion in Bowers—that “it’s one of the worst opinions he ever wrote, because it’s kind of an ispe dixit—‘this is what the law is or ought to be’—and there’s no analysis in it or anything.”

Blackmun added that his dissent was correct and that “it will be the law some day.”

“People say, ‘What makes you think so?’ And, well, I don’t need to go into the reasons for that,” Blackmun said.

The late Justice Lewis F. Powell Jr. was prepared to join Blackmun in what could have been a majority opinion but changed his mind at the last minute.

At the time, Powell said he changed his opinion because Michael Hardwick, a gay Atlanta bartender, had not been prosecuted for sodomy. Rather, Hardwick brought a civil lawsuit asking the court to declare the law unconstitutional.

“I remember [Powell] telling me one time—I mimic him a little bit, but I do it with respect—he said, ‘Harry, I’ve never known a homosexual in my life,’” Blackmun recalled in the interview with Koh. “Well, when he said that, it happened that there were two in his chambers that very moment. But these were things that Lewis didn’t want to believe or to accept and didn’t do any harm but there it was.”

Rehnquist predicted protests by gays

According to Blackmun’s papers, Chief Justice William Rehnquist’s assistant sent out a memo dated Oct. 7, 1987, noting that gay and lesbian activists were planning protests the week of Oct. 8-13 and planned on sneaking into the Supreme Court building as tourists to cause mayhem. According to an FBI informant, the assistant wrote, “some radical gay rights groups plan open acts of sodomy near the Supreme Court building” and a group of terminal AIDS patients planned to commit public suicide by self-immolation.

Justice Blackmun received thousands of letters, mostly from those supportive of his dissent. One letter critical of Blackmun’s views on sodomy called him an “old man” who “may die soon” and urged him to repent before he wakes up “in hell.” One letter called “fags” the “most perverted human beings on the face of this earth” and wrote that America “has you to thank for these perverts coming out in the open.”

“Maybe it will take one of your grandchildren being sodomized by one of these perverts to wake you up,” the letter read.

But Blackmun received numerous letters in support of his dissent.

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