Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas.

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas. Image: Metro Weekly

This week, two related Supreme Court cases both mark anniversaries.

Twenty-seven years ago (and yes, I totally had to get out my calculator for that one), on June 30, 1986, the Supreme Court issued its opinion in Bowers v. Hardwick. In it, the court concluded, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” That is, even though previous courts had established and upheld a constitutional right to privacy when it came to some matters of sexual health — such as in Griswold v. Connecticut and Roe v. Wade — states were free to enact laws that made it illegal for people to engage in “homosexual sodomy” — basically, outlawing same-sex couples from having oral or anal sex.

June 26 is the 10th anniversary of Lawrence v. Texas, which struck down sodomy laws nationwide.

On its way to the Supreme Court, the relevant appeals court held that laws that discriminated against same-sex couples’ consensual sexual activities violated an individual’s “fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” However, other courts of appeals had issued rulings in conflict with that sentiment. When the Supreme Court issued its ruling in Bowers, it explicitly rejected that same-sex sexual activity fell under the same constitutional right to privacy:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

However, another date in June — the 26th, to be specific — marks the 10th anniversary of a different case involving gay rights: Lawrence v. Texas. That ruling reversed and overturned the court’s decision in Bowers.

So in those 17 years between Bowers and Lawrence, what changed?

Both in politics and popular culture, a number of well-known individuals started “coming out” as gay. These included Rep. Barney Frank, singer Melissa Etheridge, Olympic diver Greg Louganis, and actress and comedian Ellen DeGeneres. In fact, 1988 saw the first National Coming Out Day, which helped normalize LGBTQ visibility in the United States.

In 1993, President Clinton issued the “Don’t Ask, Don’t Tell” directive. This upheld Reagan-era bans on gay and bisexual people serving in the military. However, it also forbade military officials from asking about a service member’s sexual orientation. While it had critics on both sides of the issue, it also opened up a lot of political and public discourse surrounding discrimination based on sexual orientation.

Additionally, in 1996, the Supreme Court decided the case of Romer v. Evans. In it, the justices held that Colorado’s Amendment 2 — which would have barred the government from offering discrimination protections based on sexual orientation — violated the Equal Protection Clause of the United States Constitution. Moreover, the court was explicitly critical that the law in question may have been “born of animosity toward the class of persons affected.” In other words, it recognized that some governmental actions may be motivated by anti-gay discrimination, and that such discrimination from the government is wrong.

However, perhaps the main change between Bowers and Lawrence was in the makeup of the Supreme Court itself. Between 1986, when Warren Burger was chief justice of the United States, and 2003, when William Rehnquist presided, a number of justice changes took place. This included the retirements of Chief Justice Burger, Lewis Powell, William Brennen, Thurgood Marshall, Byron White, and Harry Blackmun. It also included the additions of Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer. Comparatively speaking, the new court was more liberal-leaning than was the old court.

It’s probably worth noting that Bowers v. Hardwick was decided by a 5-4 vote. Even at the time of the ruling, nearly half of the Supreme Court justices disagreed with the decision. Because of this, not very much had to change in the court composition to tip the balance in the other direction.

Some of the newer justices were willing to reconsider and critique the original reasoning in Bowers. The majority opinion for Bowers v. Hardwick had framed the central issue as whether there was a constitutionally protected fundamental right to engage in “homosexual sodomy.” However, in writing the majority opinion in Lawrence v. Texas, Justice Kennedy (who had not been a Supreme Court justice when Bowers was decided) framed the issue more broadly:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

In fact, it echoes part of Justice Blackmun’s dissent from Bowers v. Hardwick:

The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many “right” ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.

The decision in Lawrence and the overturning of Bowers paved the way for the Supreme Court to hear Hollingsworth v. Perry and United States v. Windsor, the two same-sex marriage cases it is currently deliberating. Perhaps in another 10 years, we’ll look back on those two cases as equally groundbreaking.

4 thoughts on “Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

  1. As an update whose timing couldn’t have been more perfect for this post, on Wednesday, the Supreme Court struck down the challenged portion of DOMA as unconstitutional. Justice Kennedy delivered the Court’s opinion, which relied on the Equal Protection Clause.

    It also issued its decision regarding Hollingsworth v. Perry, though this actually declined to make an overall judgment regarding same-sex marriage. Instead, it ruled that Hollingsworth did not have standing to oppose the trial court’s decision.

  2. Democrat party has been using the issue of gay marriage as a distraction from working class problems.

    • I’m not sure how well that works in practice. I mean, maybe, though I doubt you’ll find any LGBTQ person whose socioeconomic problems have disappeared because the Supreme Court says they can have sex. There are plenty of queer folk who are working class and who continue to be vocal about those issues as well.

      That said, I didn’t write this in alignment with any particular political party. I wrote it because it’s important to me as a queer person that the government recognize me as a full human being entitled to the same rights and depth of expression — including sexual, romantic, and domestic relationships — as someone who is heterosexual. And because it’s important to make it transparent that this recognition: 1) is still not complete; 2) has been actively denied by the Supreme Court in such a recent time span as my lifetime.

  3. Pingback: This Month in History: Scheidler v. NOW | Planned Parenthood Advocates of Arizona

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