by Peter Irons
Among the numerous groups that filed amicus briefs in Bowers v. Hardwick, the most impressive was the joint brief of the American Psychological Association and the American Public Health Association, which included ninety-one citations to medical and social science literature. It noted that oral or anal sex was practiced by 80 percent of all married couples, and that 95 percent of American males—both gay and straight—had engaged in oral sex and violated sodomy laws. In fact, the brief claimed, “there are great similarities among homosexual and heterosexual couples—in emotional makeup, significance of the relationship to the individual, and in the role sexuality plays in the relationship.”
The justices heard argument in Bowers on March 31, 1986 Michael Hobbs, a deputy to Attorney General Bowers, defended his boss and his state’s law. He framed the question as “whether or not there is a fundamental right under the Constitution of the United States to engage in consensual private homosexual conduct.” Hobbs argued that the “right of privacy” did not extend beyond “marriage, the family, procreation, abortion, childrearing and child education.” Homosexual sodomy could not. lead to pregnancy or childbirth, and therefore was not protected by the Constitution. Hobbs faced questions about Georgia’s enforcement of its sodomy law. Had any married couple ever been prosecuted ? “Not to my knowledge,” he replied. Would such a prosecution be lawful? “I believe that it would be unconstitutional,” he conceded.
Once Hobbs had fielded these questions, he urged the justices to avoid creating “a constitutional right which is little more than one of self-gratification and indulgence.” He warned that Michael Hardwick’s crack-in-the-door argument is truly a Pandora’s box” and that striking down sodomy laws would lead to attacks on laws “which prohibit polygamy; homosexual, same sex marriage; consensual incest; prostitution; fornication; adultery; and possibly even personal possession in private of illegal drugs.” Hobbs failed to note that Officer Torick had cracked open a bedroom door, behind which two gay men were engaged in sexual activity that straight couples could enjoy without fear of prosecution. “Georgia is not acting as a big brother,” Hobbs concluded, but was simply “adhering to centuries-old tradition and the conventional morality of its people.”
Laurence Tribe took the podium for Michael Hardwick. Professor of constitutional law at Harvard and author of the most influential treatise in the field, Tribe had appeared before the Court in a dozen important cases, with an impressive victory record. He began by reshaping the issue Hobs had framed: “This case is about the limits of governmental power,” Tribe said. Michael’s case had nothing to do with bigamy or incest, but with Georgia’s power to dictate “how every adult, married or unmarried, in every bedroom in Georgia will behave in the closest and most intimate personal association with another adult.”
Justice Lewis Powell moved the discussion from bedrooms to “a motel room or back of an automobile or toilet or whatever.” Could Tribe define the “limiting principles” of his claim that states could not prohibit consensual sodomy? Tribe reminded Powell that bedrooms in homes had special constitutional protection from police invasion, far more than public places. Arguing that “there is something special about a home,” he added that “Robert Frost once said that home is the place where, when you go there, they have to take you in.” Poetry has no force as precedent, but Tribe obviously hoped to focus the justices on Michael’s bedroom and not on public toilets. Michael Hobbs had conceded that Georgia could not punish straight couples for sodomy, but Tribe did not make an equal protection argument, resting his case on the “liberty” interest of the Fourteenth Amendment.
Three months after the arguments, on June 30, 1986, a sharply divided Court ruled that Georgia could punish its gay citizens for sexual acts that straight couples could perform without fear of arrest. justice Byron White, who had blasted the Roe decision in dissent as “an exercise of raw judicial power,” wrote for the majority in Bowers. The former gridiron star had no desire to flex his judicial muscles in this case, expressing his deference to the “belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.” White based his opinion on the “ancient roots” of criminal penalties for sodomy. He agreed with Michael Hobbs, who argued that “the collective moral aspirations of the people” provide a legitimate basis for sodomy laws. “The law,” White stated, “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.”
Justice White’s opinion did not answer the obvious question: To whose notions of morality should judges defer? Chief justice Burger offered in a brief concurrence his opinion that sodomy laws were “firmly rooted in Judeo-Christian moral and ethical standards.” To hold that sodomy “is somehow protected as a fundamental right would be to cast aside millennia of moral teaching,” Burger concluded. In an even briefer concurrence. Justice Lewis Powell agreed that “there is no fundamental right” to practice sodomy, but he was troubled that Georgia allowed a twenty-year prison term “For a single private, consensual act of sodomy.” Powell hinted that if Georgia had prosecuted Michael Hardwick, he might have voted against the law because it violated the Eighth Amendment’s ban on “cruel and unusual punishment.”
Harry Blackmun wrote for the four dissenters, who included William Brennan, Thurgood Marshall, and John Stevens. He accused the Court’s majority of hiding their homophobia behind the mask of history. “Only the most willful blindness,” he wrote, “could obscure the fact that sexual intimacy” is central to healthy personal relationships of all kinds. The majority refused to recognize that “a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.” Blackmun deplored White’s reliance on the “ancient roots” of hostility toward homosexuals as justification for modern-day sodomy laws. He quoted Oliver Wendell Holmes: ”It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
The final paragraph of Blackmun’s scathing dissent looked to more recent history for an ominous parallel and possible redemption. He pointed to the Court’s 1940 decision upholding the expulsion of Lillian and William Gobitas from school for refusing to salute the flag. Justice Frankfurter’s opinion in Minerseville v.Gobitis had unleashed a wave of violence against Jehovah’s Witnesses that shocked his colleagues. “It took but three years for the Court to see the error” of the Gobitis decision, Blackmun wrote, and to overrule it in West Virginia v. Barnette. “I can only hope that here, too, the Court will reconsider” its approval of sodomy laws, Blackmun urged, “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 noncomformity could ever do. Because I think the Court today betrays those values, I dissent.”
It took the Court three years to confess the error of its Gobitis decision. It took Lewis Powell four years to confess his error in the Bowers case. He delivered a law school lecture in 1990, three years after retiring from the Court, and was asked during the question period how he could reconcile his support for Roe with his Bowers vote. “ I think I probably made a mistake in that one,” Powell said of Bowers. “When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments.” Powell’s vote had decided Bowers and kept alive the “ancient roots” that supported the sodomy laws of half the states. For gays and lesbians in those states, the Constitution means what one judge said it did, before he changed his mind, too late to change the outcome.
Two weeks before the Court handed down its Bowers decision, Chief Ju
stice Burger announced that he would retire at the term’s end in July 1986. Burger told President Ronald Reagan that he wanted to direct the preparations for the Constitution’s bicentennial celebrations in 1987. He had grandiose plans for a. birthday party in Philadelphia, complete with fireworks and brass bands. But did the American people have much cause in 1987 to celebrate after two centuries of constitutional government? Each person’s answer, of course, depends on the perspective from which she or he views American society and the Constitution. The comments of two very different Americans on the constitutional bicentennial provide thought for reflection. One came to the birthday party in a celebratory spirit; the other declined the invitation in an critical speech.
Thirty-nine men had gathered at the State House in Philadelphia on September 17, 1787, to sign the Constitution they had spent four months drafting and debating. The first to place his name on that document was George Washington, who presided at the Constitutional Convention and the became the new nation’s first president. On that same day, two hundred years later, the fortieth president came to the State House—now called Independence Hall—to praise the results of that hot summer’s labors. Ronald Reagan said nothing in his bicentennial speech about the disputes that divided the Framers in 1787, most notably the conflict over slavery. The president had come to Philadelphia to sooth his listeners, not to remind them of the nation’s unhealed wounds. He spoke of the Constitution in reverential words, attributing its genesis to divine inspiration. He called it “a covenant with the Supreme Being to whom our Founding Fathers did constantly appeal for assistance.” Looking back, Reagan saw a “divine source” behind the Framers’ deliberations and a “miracle” in their final agreement on a charter of government. From his perspective, the Constitution represented “the triumph of human freedom under God.”
President Reagan invited Americans in 1987 to look “beyond distinctions of class, race, or national origin” in celebrating the Constitution. "I cannot accept this invitation,” replied Justice Thurgood Marshall, whose grandfather was born into slavery. The first black American to sit on the Supreme Court reminded white Americans that “eloquent objections to the institution of slavery went unheeded” at the Philadelphia convention in 1787, and that the delegates who opposed slavery "eventually consented to a document that laid a foundation for the tragic events that were to follow.” Marshall urged his fellow Americans to commemorate the suffering, struggle, and sacrifice that triumphed over much that was wrong” with the Framers’ compromises. The clauses in the Constitution that permitted and protected slavery have since been repealed, Marshall noted, "but the credit does not belong to the Framers. It belongs to those who refused to acquiesce to outdated notions of liberty, justice, and equality, and who strived to better them.” From Marshall’s perspective, “the true miracle was not the birth of the Constitution but its life, a life nurtured through two turbulent centuries of our own making, and embodying much good fortune that was not.”
Justice Marshall spoke on the Constitution’s bicentennial of those who "may observe the anniversary with hopes not realized and promises not fulfilled.” The Supreme Court had given hope and made promises to several groups of Americans over the past half century in landmark cases, only to dash those hopes and break those promises in later decisions. The Court ruled unanimously in 1954 that school segregation violated the Constitution, but five justices decided in 1974 that “metropolitan” plans to reduce big city segregation could not cross school district boundaries. By 1987 the schools in many northern cities had become almost totally segregated, as “white flight” to the suburbs left black and Hispanic students behind, crowded into poorly equipped schools with poorly trained teachers. The Court decided in 1973 that criminal abortion laws violated the Constitution., but five justices voted in 1980 to uphold a congressional ban on Medicaid funding for abortions. By 1987 the number of clinics offering abortions had dropped by half, and most poor women could not afford to end an unwanted or dangerous pregnancy. The Court held in 1965 that the Constitution protected a “right to privacy” in the "maritial bedroom,” but five justices decided in 1986 that homosexuals did not enjoy the right to Sexual intimacy in their bedrooms. Half the states in 1987 still imposed criminal penalties for sodomy, but only gays and lesbians faced prosecution for acts that straight couples practiced with equal frequency.
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"I Fear for the Future”
In 1987 the Chief Justice of the United States was William Rehnquist. As the Constitution entered its third century, the Supreme Court was headed by a man who had argued that Plessy was right and Roe was wrong. Only two sitting justices—Edward White in 1910 and Harlan Fiske Stone in 1941—had been elevated to the Chief’s position before President Reagan nominated Rehnquist in June 1986 to succeed Warren Burger. A highly partisan Republican president, Richard Nixon, chose Rehnquist for the Court in 1971; fifteen years later, another partisan GOP president moved him into Burger’s seat. Both presidents had been assured that Rehnquist—whom neither man knew well—would cast his judicial votes as a conservative "partisan,” a label the new Chief Justice had proudly applied to himself. Rehnquist had survived a bruising confirmation battle when he first joined the Court; twenty-six senators considered his political and legal views too conservative in 1971. Since not one senator had opposed the promotions of White or Stone, one might expect that opposition to Rehnquist would have receded over fifteen years. But he won his second confirmation over thirty-three negative votes; seven more senators considered his judicial record too conservative in 1986.
The new Chief Justice did not command a conservative majority when he moved into Burger’s center seat. Three justices remained from the Warren Court: William Brennan and Thurgood Marshall were staunch liberals, and Byron White joined them in most civil right cases. Harry Blackmun, Lewis Powell, and John Paul Stevens took “moderate” positions on most issues, along with the newest justice, Sandra Day O’Connor. President Reagan had named the first woman to the Court in 1981 to replace Potter Stewart, who retired after twenty-three years of movie-critic judging, deciding each case by his own standards of fairness. An honors graduate of Stanford Law School in 1952, O’Connor discovered that corporate firms hired women only as secretaries; she finally landed a job in a California county attorney’s office and later moved to Arizona, where she practiced small-town law and Republican politics. O’Connor served in the Arizona senate for six years and in state judicial office for another six years before Reagan honored his campaign promise to place a woman on the Supreme Court. During her Senate confirmation hearings, O’Connor deflected questions about abortion and the Roe decision, pledging only to exercise judicial “restraint” and proclaiming that "I do not believe that it is the function of the judiciary to step in and change the law because the times have changed.” Although the most fervent anti-abortion groups opposed O’Connor’s confirmation, because she had once voted to liberalize Arizona’s abortion law, the Senate approved her without dissent in September 1981.
When President Nixon nominated William Rehnquist and Lewis Powell for the Supreme Court in 1971, the younger, relatively unknown lawyer stood in the shadow of an older, respected leader of the American bar. When President Reagan announced Rehnquist’s nomination as Chief Justice in 1986, he offered the Senate another team, with a younger—but hardly unknown—candidate for the opening that Rehnquist’s promotion had created. Reagan picked Antonin Scalia, a fifty-year-old judge on the District of Columbia appellate court. The Harvard Law School graduate had earlier taught at the University of Virginia and University of Chicago law schools and served in the Justice Department post that Rehnquist had once held. The two lawyers were equally partisan in their conservative views, although Scalia was more combative in legal debate. During a decade of law teaching and four years on the federal appellate bench, “Nino” Scalia forcefully argued that the Equal Protection Clause mandated a “color-blind” Constitution and firmly denied that the Du
e Process Clause protected abortion rights. Given the rough treatment the Senate gave Rehnquist in 1971, it seems odd that Scalia’s nomination sailed through by acclamation, even though he and Rehnquist agreed on most issues, particularly in denying any constitutional basis for abortion rights. The “pro-choice” lobby, however, did not mount a campaign against Scalia, despite his open desire to overrule the Roe decision.
Long before he joined the Supreme Court, William Rehnquist proclaimed his wish to dismantle the judicial legacy of the Warren Court. He and William Brennan differed in almost every case, but they agreed that “with five votes, you can do anything around here.” Brennan had five votes more often, but Lewis Powell’s retirement in June 1987 handed President Reagan the chance to shape a “Rehnquist Court” that could accomplish the new Chief’s long-sought goal. Reagan’s eagerness to find the crucial fifth vote against Roe proved his undoing, however. The pro-choice lobby woke up with a start when he nominated Robert Bork to replace Powell. Bork and Justice Scalia had both held Justice Department posts and taught: at prestigious law schools, and they had served together on the District of Columbia appellate court. They both opposed abortion rights with fire-breathing fervor, but the Senate confirmed Scalia without dissent and rejected Bork by a vote of fifty eight to forty-two after a bruising and bitter campaign by partisans on both sides of the abortion issue.
The fact that forty-seven senators who voted for Scalia, knowing his opposition to abortion, turned around and voted against Bork the following year offers a striking illustration of the political nature of Supreme Court nominations. Bork’s rejection, however, was hardly the first example of this phenomenon. The experience of Louis Brandeis in 1916 showed that conservatives could also mount partisan campaigns against nominees they considered too liberal. Charges that Brandeis held “radical” views on labor and civil liberties did not block his confirmation, but his opponents tried hard to keep him off the Court. And a coalition of labor and civil rights groups had successfully blocked President Hoover’s nomination of Judge John Parker to the Court in 1930.
