History, Homosexuals, and Homophobia: The Judicial Intolerance of Bowers v. Hardwick
![handle is hein.journals/conlr19 and id is 143 raw text is: HISTORY, HOMOSEXUALS, AND HOMOPHOBIA: THE JUDICIAL
INTOLERANCE OF Bowers v. Hardwick*
We boast of the freedom enjoyed by our people above all
other peoples. But it is difficult to reconcile that boast with a
state of the law which, practically, puts the brand of servi-
tude and degradation upon a large class of our fellow-citi-
zens, our equals before the law.1
During the recent celebration of the Fourth of July, Americans
reveled in a festival of national pride that honored the centennial of the
Statute of Liberty, the country's most visible symbol of our shared
commitment to freedom. Ironically, only a few days earlier, the Su-
preme Court had handed down a decision that denied an element of
that cherished freedom to a large segment of Americans. In Bowers v.
Hardwick,2 the Supreme Court upheld the constitutionality of a Geor-
gia sodomy statute. The statute was not restricted to prohibiting oral
and anal sex between individuals of the same gender.3 The Court, how-
ever, focused only on the statute's application to homosexuals and re-
fused to recognize that the due process clause of the fourteenth amend-
ment conferred a right of sexual privacy on homosexuals.4 According to
the Hardwick majority, no such fundamental right could be discerned
from the text of the Constitution or the Court's previous decisions.
The legal analyses debated among the members of the Court, nev-
ertheless, have little to do with the real resolution of the issues
* The author wishes to express his gratitude to Cheryl A. Sladicki for her assistance in
research and her thoughtful suggestions in preparation of this comment.
1. Plessy v. Ferguson, 163 U.S. 537, 562 (1896) (Harlan, J., dissenting).
2. 106 S. Ct. 2841 (1986). For a brief discussion of the facts in Hardwick, see Infra note 58.
3. GA. CODE ANN. § 16-6-2(a) (1984) (providing that [a] person commits the offense of
sodomy when he performs or submits to any sexual act involving the sexual organs of one person
and the mouth or anus of another .. ). A conviction under this statute is punishable by impris-
onment of one to twenty years. Id. at § 16-6-2(b). In his concurring opinion, Justice Powell sug-
gested that a sentence of twenty years for sodomy might violate the eighth amendments prohibi-
tion against cruel and unusual punishment. 106 S. Ct. at 2847 (Powell, J., concurring). The eighth
amendment issue, however, was not before the Court. Id. at 2848 (Powell, J., concurring).
4. 106 S. CL at 2843. The Court expressed no opinion on the application of the statute to
heterosexual couples. Id. at 2842 n.2.
5. Id. at 2844-46.](ViewImageLocal?handle=hein.journals/conlr19&div=13&collection=&method=preview&ext=.png&size=3)
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History, Homosexuals, and Homophobia: The Judicial Intolerance of Bowers v. Hardwick
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