This story really starts several decades before the decision and ended in part in 2003. There were rarely-enforced sodomy laws on the books until the past two hundred years or so. The laws were designed to make religiously condemned behavior illegal, promote child bearing and stigmatize groups who participated in behavior that was considered outside the mainstream. Therefore, when they were enforced, they were targeted at those unfavored people:

In America, the application of sodomy laws was strongly slanted along lines of race, ethnicity, and class. The U.S. Census Bureau reported in 1880 that 63 prisoners were then incarcerated for crimes against nature. A majority (32) of the prisoners were males of color in the South. A third of the white prisoners were foreign (European) born. Other evidence suggests that virtually all the prisoners were laborers or farm workers.

These laws began to be enforced more stringently when the United States started panicking over morality, gender roles and later, child abuse. They quickly morphed from something that was not seen as a pressing issue (indeed the first sodomy law Thomas Jefferson advocated for actually reduced the punishment for it as compared to previous laws - and his liberal version was rejected) into an institutional regime used to criminalize and marginalize gay and gender nonconforming people. Laws appeared in every state and became more secular.

Then there was the McCarthy Era, the Red Scare and the Lavender Scare.

The United States government began purging gay people from all government jobs in the late 40s. The military started issuing "blue discharges" to gays, and to blacks, to keep them from serving. This was due in part to the Red Scare and worries over Communists in government. But though McCarthy is known to have started this panic, and had even uncovered the names of "known homosexuals" in the State Department, he recused himself from all hearings involving gays in government and stopped talking about it altogether. It was bigger than him. Bigger than the Red Scare. And it lasted for longer.

But the sodomy regime and the panic fed off each other and led Americans to believe homosexuality was a real threat in government and in life. This led to more enforcement. The cycle kept repeating.

In the 60s and 70s, with sexual freedom discussed widely and openly, these laws ceased being enforced outside of the South, even though many remained in place.

And then came AIDS. I don't want to blame AIDS by itself for the decision in that case but it played a huge part of it. It was the same concept as in the 1950s: a bunch of people learned something new about people and they panicked and wanted to enforce a regime against it, in an attempt to mandate heterosexual behavior and outlaw being gay. It has to be viewed through the history of our government and police trying to enforce gender and racial norms and doing everything they can to block anything seen as abnormal, and it should be known that the courts largely complied with all of this, just as it did regarding the regime of racism and white supremacy for most of our history.

In 1982 amidst all of this, Michael Hardwick was a bartender at a gay bar. He had a drink after work and threw it in the trash outside. He was still cited for "public drinking." Hardwick went to the court house to pay his fine but the warrant stayed in place. Then the police decided to go into his home unannounced to issue the warrant. Hardwick was seen in his own bedroom engaged in oral sex with a guy. Under Georgia law, "sodomy" involved members of the same or opposite sex, and he asked for a ruling that the law was unconstitutional.

The case made it to the Supreme Court, as Bowers v. Hardwick, challenging the ban on sodomy as an invasion of the privacy rights that were found in Griswold, Eisenstadt and other privacy-related cases.

In a 5-4 decision, the Supreme Court ruled that there was no right to "homosexual sodomy" (in the privacy of one's own home) and that convictions under the law can stand.

And that one phrase, more than anything, decided the whole majority opinion:

our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and, for all intents and purposes, have decided this case.

From the beginning, it was an anti-gay decision, and explicitly so. As I noted earlier, the Georgia law in question wasn't even a ban on homosexuality or gay sex, but a ban on sodomy between opposite sex or same sex pairings. Construing the opinion to be based on simply whether or not Americans have a right to same-sex sexual activity in this way is hateful on purpose.

In Justice Blackmun's dissent (which was written by a young Pam Karlan) he notes this fact in the opening paragraph:

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 191, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

Blackmun's dissent notices the homophobia and the attempt to justify the decision with homophobic rhetoric, accusing the majority of being obsessed with homosexuality, "First, the Court's almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used."

A few lines down in the majority's opinion, Justice White refers to the "claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." Really? "acts of sodomy"? The case is about the right of privacy for gays and lesbians to engage in intimate conduct in their own homes without government interference. Not only does the reference to "acts of sodomy" seem to misjudge the whole idea of homosexuality (it's not just that everyone is heterosexual and some people engage in unconventional behavior, but there really are gay people and that type of sexual intimacy is part of their makeup) but it spins the whole case into a discussion with Biblical connotations.

And then comes the incredibly dismissive tone which pervades the majority opinion. For instance, Justice White says "Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do."

There are also lies and misuse of history and precedent. And the lies are plentiful and damaging to the decision. For instance, "Proscriptions against that conduct have ancient roots." "That conduct" of course is "gay people engaging in intimate activity within their own home." Putting aside the fact that the decision shouldn't even be based specifically on gay sex, proscriptions against that conduct do not have ancient roots. And proscriptions against what the Court might have termed sodomy didn't even have ancient roots in the sense that bans were enforced over centuries. These regimes designed to hide marginalized groups from society are trotted out and improved upon when government feels like it, not as a serious attempt to ban that "conduct" over time.

He then launches into a "history" of sodomy laws, which is completely refuted by the evidence documented and linked here.

Importantly, though, Blackmun's dissent tells us that Georgia is, in fact, using the law as an attempt to enforce the anti-homosexuality regime and not in a way that matches with the supposed "history" of fair sodomy laws: "Michael Hardwick's standing may rest in significant part on Georgia's apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals."

And then, there's the most offensive, dismissive and horribly backwards sentence I've read in any decision I can think of:

Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

The right for gays to engage in private sexual conduct is "at best, facetious." The United States Supreme Court said this in a decision two years after I was born. Truly, it's frightening to see the depths to which fear of gay people can lead to a strong attempt to uphold a system that was made specifically to harm a minority class. And this was said in a decision where a cop went into someone's bedroom to charge them with this crime. You often hear about how 'the government shouldn't be in anyone's bedroom' - well, it was. And it won. All to make sure "homosexual" sex remained stigmatized.

And what anti-gay opinion is complete without the slippery slope argument?

And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [p196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Yes yes, if you allow gays to experience sexual intimacy free from government intrusion, adulterous rabbits will go on the attack.

The majority opinion closes on the note that traditional morality is, in fact, a fine basis to uphold the ban:

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

So according to the United States Supreme Court majority in 1986, in an opinion written by a Democratic appointee, it is okay for the government to send people into someone's bedroom and arrest and try them for a crime if they are having consensual sex, for the person to get convicted and receive jail time or worse.

And I haven't even gotten to Chief Justice Burger's concurrence.

He says:

in constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy.

He said "commit" sodomy. Makes it sound like murder or burglary or something.

Touching on the religious basis for sodomy laws, he says, "Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards." And then, "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Yes folks, the Bible allows the government to come into your homes and round you up for sexual activity. And the Bible conveniently wants to uphold an entrenched system of anti-homosexuality because those types of laws will promote heterosexual moral values.

Justice Stevens' dissent dispenses with this idea:

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.

Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them -- not the [p218] State -- to decide. [n10] The essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive sexual conduct that others may consider offensive or immoral.

And Stevens uses reasoning that later appeared in Romer v. Evans and then in 2003 in the decision which overturned Bowers:

A policy of selective application must be supported by a neutral and legitimate interest -- something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable."

And Blackmun's dissent provides clarity that the majority lacks:

Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. "[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself, and not others nor to society as a whole.'" Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub.Affairs 288-289 (1977).

And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U.S. at 500-506 (plurality opinion). The Court recognized in Roberts, 468 U.S. at 619, that the "ability independently to define one's identity that is central to any concept of liberty" cannot truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with others." Ibid.

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality," Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973); see also Carey v. Population Services International, 431 U.S. 678, 685 (1977). 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. See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe v. Wade, 410 U.S. at 153.

Justices Blackmun and Stevens filed separate dissents concluding that Bowers was incorrect, offensive, misleading and insulting to gays and lesbians. Indeed Blackmun's dissent ended with a plea to reconsider the holding:

I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

Blackmun's and Stevens' dissents are masterful and clear and relevant today. They both provided the arguments for 2003's decision finally overturning Bowers in Lawrence v. Texas.

Originally posted to indiemcemopants on Thu Jun 30, 2011 at 01:05 PM PDT.

Also republished by Milk Men And Women.

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