{ subscribe_url: '/share/sites/library-of-congress-blogs/law.php' }

What a Difference 17 Years Made

The following is a guest post by Alexander Salopek, a collection development specialist in the Collection Services Division of the Law Library of Congress. He previously wrote posts on Marriage Equality in the U.S., Miranda and the Rights of Suspects, Fred Korematsu’s Drive for Justice and Fred Korematsu Winning Justice.

Here is an accounting of two landmark Supreme Court cases that address LGBTQI rights and the rights of an individual to privacy in their home. With only 17 years between them, the court arrived at very different conclusions.

Bowers v. Hardwick

After working at a bar all night preparing for a discotheque being opened by the Cove, a gay bar in Atlanta, Georgia, Michael Hardwick threw a beer bottle into the trash (Murdoch & Price, 278). Keith Torick, an Atlanta police officer, saw Hardwick do that. Torick served Hardwick with a ticket for drinking in public, but Torick completed the ticket in a confusing way (Nussbaum, 77). Because of the confusing way Officer Torick completed the ticket, Torick came to Hardwick’s home to serve him with a warrant (Murdoch & Price, 278). Hardwick was not home however, and after he paid the fine, he believed the matter to be closed (Richards, 78). Weeks later, on August 3, 1982, Officer Torick came back to serve the warrant, but having been let in to Hardwick’s home somehow, found Hardwick in his own bedroom engaging in intimate behavior with another male adult (Richards, 78). The officer arrested Hardwick and his companion, not allowing them privacy to get dressed. Torick booked them making sure everyone at the police station knew the reason for their arrest. He charged them for violating a 1968 Georgia statute (Ga. L. 1968, p. 1249, § 1) making it a crime to engage in sodomy (Eskridge, 233). At this time, the American Civil Liberties Union (ACLU) was reviewing the arrest docket every day to find a test case for Georgia’s sodomy law, and Hardwick’s case looked like an option (Eskridge, 234). Hardwick’s employment working at gay bars wouldn’t be jeopardized by bringing such a case, and unlike most sodomy cases at the time, Michael Hardwick was arrested in the bedroom of his own home (Anderson, 84). After a hearing, Hardwick filed suit claiming the statute violated his right to privacy (Murdoch & Price, 278). The case worked its way to the Supreme Court.

The claim brought to the Supreme Court by Hardwick’s team was that the constitutional right of privacy extended to an individual’s private intimate associations in their own homes (Murdoch & Price, 287). The team defending the statute’s constitutionality focused on the fact that if this law were struck down, all criminal law that dealt with any sort of public decency would also need to be struck down, including coercive sexual behaviors (Richards, 80). Ultimately, the Court ruled against Hardwick, finding that there was no constitutional right to engage in homosexual sodomy. Justice Byron White delivered the opinion of the Court, joined with Chief Justice Burger and Justices Powell, Rehnquist, and O’Connor (Stone, 472). After losing his case, Michael Hardwick worked at creating beautiful fauna and flora decorations for different bars, and became a recluse (Eskridge, 264).

SCOTUS April 2015 LGBTQ 54663, Arguments at the United States Supreme Court for Same-Sex     Marriage on April 28, 2015. [Photo by Flickr user Ted Eytan. Used under CC 2.0 license.]

Lawrence v. Texas

On the night of September 17, 1998, Robert Eubanks placed a false report involving a crazed armed man in an apartment in Houston, Texas (Carpenter, 62). When the police arrived at the apartment, they were unable to locate said person with the gun, and while searching they found themselves intruding in John Lawrence’s bedroom (Law, 16). Accounts differ as to what was happening inside the bedroom, but afterwards John Lawrence and his companion, Tyron Garner, were arrested and charged under the Texas Penal Code Section 21.06, which outlawed sodomy between persons of the same sex (Eskridge, 264). When the charge was being processed it came to attention of the clerk, who happened to be gay. While discussing it at a bar they brought it to the attention of a bartender, who happened to recognize it as something that could be used to challenge Sec. 21.06 of the Texas Penal Code (Carpenter, 117). This bartender, Lane Lewis, was able to get John Lawrence and Tyron Garner excellent legal representation, because of the vested interest of the LGBT community in repealing sodomy laws, essentially legalizing LGBT romantic relationships (Carpenter, 130). After both Lawrence and Garner plead “no contest,” their attorneys filed an appeal that made it to the Supreme Court (Law, 178).

The claim that Lawrence and Garner’s attorneys made was that Equal Protection Clause of the Fourteenth Amendment protected homosexuals from the discriminatory “homosexuals only” sodomy law of Texas, and that the Due Process Clause of the Fourteenth Amendment protected all individuals from “unconstitutional burdens on the basic right of intimate life,” thus Bowers must be overruled and the statute should be struck down (Richards, 145). The State of Texas’s argument defending the statute was that it was passed in the state house, and such laws should be repealed by Texas legislators (Carpenter, 207). On June 26, 2003, the Supreme Court handed down a 6-3 decision written by Justice Kennedy, striking down the Texas statute and overruling Bowers, finding that the Due Process Clause protects individuals’ rights to liberty to express their intimate conduct with another person (Constitution Annotated, Amdt5.4.5.2.4.3 Private Sexual Activity, p. 9). Justice O’Connor had a concurring opinion that struck the law down using the Equal Protection Clause, since the Texas statute, unlike the one in Bowers v. Hardwick, applied only to homosexuals. After their case, John Lawrence and Tyron Garner retired to private life, having secured that “private and consensual conduct is within the liberty of all persons to choose without being branded as criminals” (Nussbaum, 87).

Resources

Anderson, Ellen Ann. (2006). Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation.

Carpenter, Dale. (2012) Flagrant Conduct: the story of Lawrence v. Texas: how a bedroom arrest decriminalized gay Americans.

Eskridge, William N. (2008) Dishonorable Passions: Sodomy Laws in America 1861-2003.

Law, Janice. (2005) Sex Appealed: was the Supreme Court fooled?

Murdoch, Joyce and Price, Deb. (2001) Courting Justice: gay men and lesbians v. the Supreme Court.

Nussbaum, Martha C. (2010) From Disgust to Humanity: Sexual Orientation and Constitutional Law.

Richards, David A. (2009) The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas.

Stone, Geoffrey R. (2017) Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.


Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

One Comment

  1. Steven
    June 28, 2022 at 10:24 am

    Great post! Very interesting contrast. Looking forward to reading more from the author.

Add a Comment

This blog is governed by the general rules of respectful civil discourse. You are fully responsible for everything that you post. The content of all comments is released into the public domain unless clearly stated otherwise. The Library of Congress does not control the content posted. Nevertheless, the Library of Congress may monitor any user-generated content as it chooses and reserves the right to remove content for any reason whatever, without consent. Gratuitous links to sites are viewed as spam and may result in removed comments. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on the Library site. Read our Comment and Posting Policy.

Required fields are indicated with an * asterisk.