Bowers v. Hardwick & Lawrence v. Texas: A Comparison of the Supreme Court's Decisions

Two landmark cases, Bowers v. Hardwick and Lawrence v. Texas, have both set precedent and affected the state of relevant laws in their respective eras, as well as have had a substantial impact on our current laws. These decisions have assisted in shaping the laws of today, primarily in a positive way. Bowers v. Hardwick, decided in 1986, held constitutional a Georgia statute criminalizing sodomy between two consenting male adults. Seventeen years later, the Bowers decision was overruled by Lawrence v. Texas, in which the Supreme Court struck down a Texas state law banning private consensual sex between adults of the same sex. Lawrence has set the current precedent in a decision gay rights groups hailed as historic. This paper will analyze the Court's rulings in both cases, discuss the similarities and differences of the cases, and will conclude with a reflection of whether the decisions have positively or negatively impacted the current laws in place today.

In Bowers v. Hardwick, Hardwick, a male adult, was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his own home. Hardwick brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy, asserting that the Georgia sodomy statute violated the Federal Constitution. The Supreme Court decided the case based on the issue of whether the Federal Constitution conferred a fundamental right upon homosexuals to engage in sodomy, which would invalidate the laws of states that have criminalized such conduct. The Court discussed other cases that involved constitutional rights, such as marriage, privacy and procreation, and determined that there was no connection between Hardwick's claimed constitutional right of homosexuals to engage in acts of sodomy and family, marriage, or procreation. In its final opinion, the Court determined that there was no fundamental right to engage in homosexual sodomy.

In arguing his case, Hardwick cited as support a case in which the Court had held that the First Amendment prevented conviction for possessing and reading obscene material in the privacy of one's home. The Court did not equate the right to read pornographic material in one's home with the right of homosexual men to engage in consensual sexual acts in their own home. Consequently, the Georgia statute was upheld. In Lawrence v. Texas, responding to a reported weapons disturbance in a private residence, the Houston police entered Lawrence's apartment and saw him and another adult man, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. The Court applied the ruling of Bowers to the case, considering many different points. The Court held that the Bowers decision was incorrect, and ruled that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violated the Due Process Clause.

In its opinion in Lawrence, the Court stated that resolution of the case depended on whether the petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. The Court stated that the language of the Texas statute sought 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. The Court added that the liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. The Lawrence Court stated that the Bowers Court misapprehended the liberty claim presented to it. "The petitioners are entitled to respect for their private lives," Justice Anthony Kennedy wrote for the court's majority. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

The facts in Bowers had some similarities to the Lawrence case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, applied only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal...

He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution.
The Bowers decision and the Lawrence decision share certain similarities. Both Courts discussed the fact that proscriptions against sodomy have ancient roots. However, both also noted that there was no long-standing history in this country of laws directed at homosexual conduct as a distinct matter. According to the Court, early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally, whether between men and women or men and men. The Court also noted that early sodomy laws seemed not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals.

In the Lawrence decision, the court concluded that Bowers was not correct when it was decided, is not correct today, and overruled it. In reaching its' decision, the Court stated that the case did not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It went on to state that it involved two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. The Court held that the petitioners' right to liberty under the Due Process Clause gave them the full right to engage in private conduct without government intervention. Thus, the Court concluded that the Texas statute furthered no legitimate state interest which can justify its intrusion into the individual's personal and private life.

Bowers and Lawrence affected the laws at the time they were decided. When Bowers was decided, it did not appear as though liberty protected people from unwarranted government intrusions into a dwelling or other private places. In our current tradition, the State is not omnipresent in the home, which is a result of the Lawrence decision. The current laws in place recognize that liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The Lawrence case involved the liberty of the person both in its spatial and more transcendent dimensions, and assisted in molding the current state of laws involving this topic. Other Court decisions that have been based on the precedent in either Bowers or Lawrence have also molded the laws of today.

For example, in Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights.

The opinions in Griswold and Eisenstadt, which were based largely on the holdings of Bowers and Lawrence, were part of the background for the decision in Roe v. Wade, the popular case that involved a challenge to the Texas law prohibiting abortions. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

The cases that emerged after Bowers and Lawrence have been affected by these consecutive rulings, and as a result, many of the privacy rights and laws that exist today can be attributable to both of these cases.…