June 30, 1986 was a broiling hot day in Washington, D.C. when the U.S. Supreme Court released the decision in Bowers v. Hardwick, a landmark sodomy decision. The press was huddled under the small bank of trees near the side entrance, waiting for the copies to be handed out. The fate of millions of lesbian and gay Americans lay in the hands of the high court.
The controversial case involved consensual sex between Michael Hardwick and a companion in the privacy of his own home. An Atlanta police officer, Keith Torick, was serving an invalid warrant for a ticket when he entered Hardwick’s apartment, burst into his bedroom, and found him engaged in oral sex. Torick arrested Hardwick and the companion, charging them with sodomy. At the time, the charge carried a sentence of up to 20 years in prison.
Hardwick sued the state of Georgia, asserting that as a non-celibate gay man, his rights were infringed upon by the existing sodomy laws. A federal appeals court found in Hardwick’s favor and Michael Bowers, Georgia attorney general, took the case to the U.S. Supreme Court.
The court found 5-4 for Bowers. Justice Byron White wrote the majority opinion upholding the sodomy laws. White said the Constitution did not support “a fundamental right to engage in homosexual sodomy.”
Chief Justice Warren Burger issued a virulently homophobic concurring opinion in which he asserted that homosexual sodomy was an “infamous crime against nature,” worse than rape, and “a crime not fit to be named.” Burger wrote, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
Justice Lewis Powell also wrote a concurrence. Later, Powell would say he should have voted the other way, but did not realize the importance of the case at the time. Justices William Rehnquist and Sandra Day O’Connor voted with the majority.
Blackmun’s dissent accused the Court of an “almost obsessive focus on homosexual activity” and an “overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases.”
Blackmun wrote of Burger’s religious commentary, “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”
Blackmun was joined in his dissent by William Brennan, Thurgood Marshall and John Paul Stevens. Stevens also wrote a dissent in the case.
When the decision was handed out to the press, Blackmun, then 78, made the unprecedented move of coming out to speak about how wrong he felt the decision was. Blackmun had authored the landmark Roe v. Wade case and his dissent was predicated on what he argued in both cases: a fundamental right to privacy.
Seventeen years later, in 2003 the court reversed its views on sodomy when it ruled on the case Lawrence v. Texas. The case centered on another consensual relationship and a Texas law classifying consensual, adult homosexual intercourse as illegal sodomy. John Geddes Lawrence and Tyron Garner argued that Texas violated the privacy and liberty of adults to engage in private intimate conduct under the 14th Amendment.
In a 6-3 decision, a very different court than had voted on Hardwick declared that the court had gotten it wrong in 1986. Only three justices remained from the original ruling: Rehnquist, O’Connor and Stevens. Finding for the majority were Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, David Souter, O’Connor and Stevens. The dissents were Rehnquist, Clarence Thomas and Antonin Scalia.
Writing for the majority, Kennedy declared “The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
O’Connor voted with the majority, but in a dissent, argued against overturning Hardwick, asserting that the Texas state law violated the equal protection clause because it criminalized male–male but not male–female sodomy and that should be the court’s rationale in finding for Lawrence and Garner against Texas.
In his angry dissent, Scalia wrote “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
Both Scalia and O’Connor argued that the breadth of Kennedy’s opinion opened the door to same-sex marriage. And a decade later, Scalia was proven correct: Kennedy wrote the opinion in Obergefell v. Hodges, which legalized same-sex marriage in all 50 states and the District of Columbia.
Scalia’s comments in Lawrence v. Texas were invoked by conservatives unhappy with the latest court ruling in Bostock v. Clayton County, Georgia. But that 6-3 decision, written by conservative Justice Neil Gorsuch, is predicated upon previous cases the court has rendered on gay rights, as well as previous employment discrimination cases.
Scalia himself wrote the unanimous opinion in Oncale v. Sundowner Offshore Services in 1998. That case determined that a male can be discriminated against by members of the same sex under Title VII. Oncale found that any discrimination based on sex is actionable if it places the victim in an objectively disadvantageous working condition, regardless of the gender of the victim or the person doing the harassing.
The court continues to move forward — albeit slowly — on LGBT rights issues. But as was the case in Hardwick, religion continues to infringe. The court has found in favor of business owners claiming religious freedom to not serve lesbian and gay clientele in several recent cases, including in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Kennedy again wrote the majority opinion in favor of the plaintiff. And in Bostock, Gorsuch notes that religious employers may challenge the ruling.
But since Hardwick was overturned, in Lawrence, Obergefell, Bostock and, laterally, in Oncale, even conservative justices–notably Kennedy and Gorsuch–have found there is a constitutional basis for LGBT rights.