Legal Snapsot: Bowers v. Hardwick

The benefits of marriage can inure to individuals outside the traditional marital relationship. For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.

Bowers v. Hardwick is a mid-1980s Supreme Court opinion that by a 5-4 vote answered the question whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."  Lawrence v. Texas less than twenty years later decided 6-3 (Rehnquist/Stevens held their ground on each side; O'Connor did not though rested on equal protection, the law only applying to homosexual sodomy) went the other way.  This time, it more broadly protected intimate association as a liberty interest.

The opening quote is from the lower court ruling that protected the behavior. (It is one of various cites that can suggest the seeds of the idea of same sex marriage did not arise -- to cite Justice Alito -- later than cell phones.)  It is an interesting opinion.  The first step was to hold that Michael Hardwick (who died of AIDS related illness in the early 1990s) had a claim. He was arrested but his prosecution was put in abeyance.  The opinion by written by a civil rights stalwart (Frank Johnson) held:

The past arrest of Hardwick, combined with the continuing resolve on the part of the State to enforce the sodomy statute against homosexuals and the authenticity of Hardwick's desire to engage in the proscribed activity in the future, leads us to agree with the district court that Hardwick has standing to bring this lawsuit.

The arrest is key here when addressing the second issue (which the Supreme Court did not address in order to answer the wider question): did an earlier summary affirmance  of a rejection of a gay rights claim block relief here?  See also, the idea that something like that happened regarding an even earlier case involving same sex marriage. The opinion cited two factors:

Courts seeking to identify the issues governed by a summary affirmance should examine the issues necessarily decided in reaching the result as well as the issues mentioned in the jurisdictional statement.

A "jurisdictional statement is the section of an appellate brief that asserts the basis of appealability and the suitability of the court to hear the claim."  It seems to me that an argument is just that and it is up to the court to determine the basis of the opinion.  The opinion here argued that the previous case very well might have been rejected by the Supreme Court on narrow grounds. Also, multiple opinions since then suggested that the question was still open.  The Supreme Court in its ultimate decision pointed to two footnotes covered in this discussion and said that they held past cases "did not reach so far."   But, they really said that the matter was not settled.  This would be the first time it would substantively address a constitutional claim resting on sexual relations.  Later, as I myself argued here, the early summary dismissal of a same sex marriage claim was overtaken by events -- one factor here was changing law. And, at the very least, by 2015, it was no longer "not a substantial federal question."

The dissenting judge read the matter the other way, which might have been possible, especially if one wanted to avoid deciding the underlining question.  The other judges went on.  Ultimately, the Supreme Court made quick work of the constitutional question since it seemed "facetious" to think cases involving family matters ultimately covered this conduct, especially with it being historically criminalized.  A case cited protecting possession of obscenity in the home was framed as a First Amendment case.  That just led a need for rational basis, which was satisfied by morality.

The lower court and four justices took things more seriously.  The lower court expanded their view.  A range of cases protected a right of privacy dealing with intimate matters (it cited a lower court opinion involving breastfeeding and various Supreme Court rulings) were cited.  Later, marriage was argued to be particularly about procreation. But, the conversation here years back was more open-ended: the "marital relationship is also significant because of the unsurpassed opportunity for mutual support and self-expression that it provides." Cases already protected non-procreative sex, including for the unmarried.  Homosexual conduct fits into the wider whole here.  It is far from "facetious."

Stanley v. Georgia was not just a First Amendment case; it specifically cited a right of privacy, including a famous passage in a Fourth Amendment case.  A case involving family members living together reaffirmed the point.  There was something about the home that required a stronger state interest; it wasn't just a First Amendment case.  Justice Blackmun in his own dissent similarly looked at the case in such a two-step fashion, adding a quote in that second case involving looking at the wider meaning of the protection.  This would help provide a wider protection of private activities and the "family" in particular. 

The lower court overall did a good job showing how same sex sexual relations fit into a wider whole of constitutional liberty.  This was not just about certain types of sexual acts. This was referenced during the Supreme Court oral argument though the matter was not pressed.  What is there about "sodomy" in particular [Stevens cited an old case that held state law didn't cover lesbian relations] that was immoral as compared to let's say two gay people holding hands?  Something that even today some might not want to do in certain places.

The law covered heterosexual sodomy but the government granted that was protected by previous opinions.  The Supreme Court's citation of historical practice would seem to need to deal with this because until recent decades such laws making it a crime were on the books.  They might not have been enforced [Michael Hardwick probably was singled out, vice crimes regularly arbitrarily applied], but that wasn't the issue here.  The Supreme Court avoided that by simply treating the case as a narrow matter. Bad pool and perhaps coming off as the very "choice of values" that the Supreme Court was supposed to try to avoid.  It came out later the Attorney General Bowers was in the midst of a long affair (adultery itself a criminal act) that also involved "sodomy."  Lawrence v. Texas cited history to provided nuance to the enforcement of sex crimes.  It also has been shown that discriminatory motives involving stereotypical sex roles were involved.  Bare references to "morality" here hides more than it reveals. 

The lower court opinion cited the Ninth Amendment though the Supreme Court noted in a footnote that it wasn't raised.  Justice Blackmun argued that procedurally all such claims that could be used to dismiss (including equal protection, which was a basis of Stevens' dissent) were available. This would include the Eighth Amendment, which Justice Powell's brief concurrence left open as a possible ground in the case of an actual prosecution and sentence of suitable duration.  It is unclear how broadly he would take that -- Lawrence v. Texas involved a fine but implications of a conviction was broad, including as applied to such things as custody. And, penal sanctions were applied in various cases.

Ultimately, the claims here were premature and handed down before the justices were ready for them.  Legal and societal developments, including in state courts, allowed the Supreme Court to change its mind in 2003.  The material was available earlier.  A recent case referenced a right to intimate association based on a "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one's life."  Friends and lovers could be covered.  Non-procreational sex was protected.  Why?  Merely to avoid pregnancy? Well, the cases referenced an open-ended right to privacy.  And, concerns about equality and homosexuals were addressed by a few justices.  

[A heterosexual couple was also involved in the case, but as with attempts to bring in a couple whose relationship was said to be threatened because of a ban of contraceptive use or abortion, they were held not to have standing.  As to arguments that health interests were involved, the claim was more open-ended -- morality -- and the purposes were clearly not that. A narrow law banning certain types of male sexual relations might have a better shot though in practice likely counterproductive. The same would be true for prostitution. But, the state was not granting the right of two women to commit the acts.] 

The case could have been a first step, especially if the specifics were highlighted. There was evidence he was targeted in a discriminatory fashion.  He was having sex in private and when asked for an actual prosecution, the attorney general could only cite an appellate case from the 1930s.  The government didn't even want to prosecute, holding the case in abeyance and leaving open a chance to arrest him in the future.  In practice, this was a path to arbitrary prosecution and persecution.  The case was also a criminal matter though a wider claim of constitutional protection was sought.  But, there was probably room to rule narrowly as Justice Powell wished.  Or cite him not being prosecuted, suggesting his rights were not truly harmed.  This might leave time for more complicated issues to develop.

An interesting snapshot in time. Where are they now alert: Justice Powell's "conservative clerk" later became a federal judge.  Hardwick's advocate, Laurence Tribe, is still out there advocating things.  Michael Bowers later was seen as a bit of a hypocrite but he did eventually come around on the issue of gay rights.