The Court Cases That Changed Our World
BY Diane Anderson-Minshall
August 22 2012 4:00 AM ET
Bowers v. Hardwick
John Geddes Lawrence and Tyron Garner (pictured at left)
Lawrence v. Texas
In 1990, Michael Hardwick told The Advocate, “When people hear my name they think of a radical cocksucker. People don’t know anything else about me.” Indeed, Hardwick was known until his death in 1991 as the man at the center of one of the biggest antigay legal cases in U.S. history: Bowers v. Hardwick, the 1986 Supreme Court decision that said the Georgia sodomy law criminalizing anal and oral sex between people of the same gender was indeed constitutional. Justice Byron White said the constitution did not give citizens “a fundamental right to engage in homosexual sodomy.”
The case was set in motion in 1982 when Hardwick, then working at a gay bar in Atlanta, was arrested for “drinking in public,” essentially for walking out of the club with a bottle of beer and tossing it in the garbage. After he missed a court date but paid the fine, police came to his home with an invalid warrant and ended up finding him having oral sex with another man. He was arrested for a felony that could then put him away for 20 years. “They kept moving me from cell to cell and announcing that I was in for cock sucking,” Hardwick told us in 1990. “I was already in shock and was having to physically defend myself from these prison brutes. I was like an animal — just thinking about survival.”
After the local district attorney dropped the case, lawyers from the American Civil Liberties Union and elsewhere called Hardwick and told him they wanted to make his a test case, to overturn a law most thought violated privacy rights. Harnessing his anger, Hardwick recalled, “I knew then I couldn’t walk away.” Indeed, Bowers v. Hardwick ended up being fought (and appealed) all the way to the U.S. Supreme Court, which ruled in a 5-4 decision that oral and anal sex between consenting adults in the privacy of their own homes could be criminalized. The dissenting opinion from Justice Harry Blackmun was written by his law clerk, out lesbian Pamela Karlan, who is now a Stanford Law School professor and codirector of the school’s Supreme Court Litigation Clinic. Blackmun told historian Harold Koh in 1995, “I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct.”
It wasn’t until 2003’s Supreme Court ruling in Lawrence v. Texas, a decision that reversed Bowers v. Hardwick, that state sodomy laws were deemed unconstitutional. Justice Anthony Kennedy wrote in the majority opinion that “Bowers was not correct when it was decided, is not correct today, and is hereby overruled.”
Of course, the story of how Lawrence came to be is apocryphal, according to Dale Carpenter, author of Flagrant Conduct: The Story of Lawrence v. Texas. The lore is that someone called the police on September 17, 1998, complaining that a black man with a gun was going crazy at a Houston apartment. Police entered the apartment and found John Geddes Lawrence and Tyron Garner having sex and arrested them both for “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” When the Supreme Court finally ruled in the men’s favor, it did so based on the men’s right to express intimate conduct as a necessary part of a relationship (according to The New Yorker, the opinion used the word “relationship” 11 times).
The problem, says Carpenter, is that there never was a relationship — or sex — between Lawrence and Garner, the latter of whom was 24 years younger than Lawrence. The two men had been drinking in Lawrence’s home that evening with two other men, one of whom was Garner’s boyfriend. The boyfriend thought Garner and Lawrence were flirting, left the party, and called police to falsely report a crazy black man with a gun; Garner is African-American. Carpenter says the police who were on scene that night never agreed on what they saw: One said he witnessed anal sex, another claimed to view oral sex, and two said they didn’t see any sex. Regardless of what happened that night in Houston, civil rights lawyers trumpeted the men’s case as adding much-needed legitimacy to same-sex relationships. Lawrence and Garner, though, mostly stayed out of the public eye until the final verdict came down and the nation’s centuries-old sodomy laws were finally overturned.