Bowers V. Hardwick (June 30 Essay, Research Paper

Court Case Number 15: Bowers v. Hardwick (June 30, 1986)

In August of 1982, Michael Hardwick was charged with violating the

Georgia statute criminalizing sodomy by committing that act with another adult

male in the bedroom of Hardwick’s home. Hardwick then brought suit in the

Federal District Court, therefore challenging the constitutionality of the

statute as it criminalized sodomy. Hardwick asserted that he was a practicing

homosexual, that the Georgia statute, as administered by the defendants, placed

him in imminent danger of arrest and that the statute for several reasons

violates the Federal Constitution.

I oppose the Court of Appeals decision that Michael Hardwick’s complaint

was dismissed by evidence seen through rights readily identifiable in the

Constitution’s text involved much more that the imposition of the Justices’ own

choice of values on the States and the Federal Government, the Court sought to

identify the nature of rights for heightened judicial protection. Such landmark

court decisions as Palko v. Connecticut stated this category includes those

fundamental liberties that are ?implicit in the concept of ordered liberty,?

such that ?neither liberty nor justice would exist if any fundamental liberties

were sacrificed.? In Moore v. East Cleveland, fundamental liberties are

characterized as those liberties that are ?deeply rooted in this Nation’s

history and tradition.?

Proscriptions against a fundamental right to homosexuals to engage in

acts of consensual sodomy have ancient roots. Sodomy was a criminal offense at

common law and was forbidden by the laws of the original thirteen States when

they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was

ratified, all but five of the thirty-seven States in the Union had criminal

sodomy laws. In fact, until 1961, all fifty States and the District of Columbia

continue to provide criminal penalties for sodomy performed in private and

between consenting adults.

As his honorable Justice John Paul Stevens opinion stated, sodomy was

condemned as an odious and sinful type of behavior during the formative period

of the common law. That condemnation was equally damning for heterosexual and

homosexual sodomy. Moreover, it provided no special exemption for married

couples. The license to cohabit and to produce legitimate offspring simply did

not include any permission to engage in sexual conduct that was considered a ?

crime against nature.?

One the more prominent features of Bowers v. Hardwick involved the

Georgia statute, ?the presumed belief of a majority of the electorate in Georgia

that homosexual sodomy is immoral and unacceptable.? The Georgia electorate

enacted a law that presumably reflects the belief that all sodomy is immoral and

unacceptable. Unless the Court is prepared to conclude that such a law is

constitutional, it may not rely on the work product of the Georgia Legislature

to support its holding decision. For the Georgia statute does not single out

homosexuals as a separate class meriting special disfavored treatment.

I strongly believe that according to the Bill of Rights and the Georgia

statute, they both state in similar contexts that homosexuals and heterosexuals

are treated both equally and that as long as the Bill of Rights states that

sodomy is a criminal offense at common law and the Georgia statute reiterates

the theme that all sodomy; whether committed by a heterosexual or homosexual

couple, is immoral and unacceptable, my opinion shall stand against the final

decision made by Justice John Paul Stevens, Justices’ Brennan, and Marshall.