How the Battle Over Anti-Sodomy Laws Became the Lynchpin of Marriage Equality 

Harry Blackmun, Anthony Kennedy.

Photo illustration by Lisa Larson-Walker. Photo by Ron Sachs/Consolidated News Pictures/Getty Images, Larry Downing/Reuters.

Excerpted from Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue, by Melvin I. Urofsky. Out now from Pantheon, a division of Random House LLC.

Bowers v. Hardwick (1986) tested the limits of a privacy right in a new area, and the debate within and outside the Court has reverberated to the present. Prior to this case the Court had never addressed the extent to which states could constitutionally regulate sexual practices per se. Harry Blackmun’s powerful dissent proved prophetic, and was the first step on the road to last term’s landmark decision on same-sex marriage.

Hardwick involved a Georgia statute that criminalized consensual sodomy, with punishment up to twenty years imprisonment. Michael Hardwick was arrested in his own home, and the district attorney, who had been trying to improve relations with the gay community, refused to prosecute. Hardwick, however, brought an action in federal court to challenge the constitutionality of the Georgia statute. The Court of Appeals for the Eleventh Circuit held the Georgia statute violated rights to privacy under the Ninth and Fourteenth Amendments.

Five justices voted to overturn the lower court—Burger, White, Powell, Rehnquist, and O’Connor. Byron White stated the question clearly: “The issue is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Given this long history of anti-sodomy laws, the right claimed by Hardwick was “at best, facetious.”

There were two dissents, of which that of Harry Blackmun is by far the more powerful. Blackmun’s opening statement captured the message:

This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, than Stanley v. Georgia was about a fundamental right to watch obscene movies, or Katz v. United States was about a fundamental right to place interstate bets from a phone booth. Rather this case is about “the most comprehensive of rights and the one most valued by civilized men,” namely, “the right to be let alone.”

For Blackmun it was all about privacy, and he disputed White’s interpretation. “The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.”

To show how strongly he felt, Blackmun decided to read aloud part of his dissent, including the line, “It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.” When he had finished, Thurgood Marshall passed him a note. When Blackmun had first come on the bench, Marshall had chided his junior colleague for failing to understand how other people—people who were different—lived. The note read: “You was great.”

In these opinions, and especially in Blackmun’s dissent, we get the major arguments that would determine the debate and dialogue over gay rights and the law for the next quarter century. During that time, public understanding and acceptance of homosexuality increased significantly. The gay rights movement would suffer a few set-backs on the Court before it would triumph, but the victory came sooner than anyone expected.

Romer v. Evans (1996) gave gay activists their first real glimmer of hope that the Supreme Court might be moving away from its earlier and more hostile stance. The political activism of gay and lesbian advocacy groups in Colorado had met with success in the form of numerous municipal ordinances banning discrimination in housing and jobs on the basis of race, gender, or sexual orientation, and the state legislature had repealed its sodomy statute. Socially conservative evangelical Christian groups, opposed to homosexuality as a sin, managed to get a constitutional amendment on the ballot specifically repealing any state or local law that protected people who were “Homosexual, Lesbian or [of] Bisexual Orientation,” and prohibiting the passage of any legislation in the future to protect these people in their “conduct, practices, or relationships.” In November 1992, 53 percent of the electorate approved Amendment 2. Richard Evans, a city official in Denver, sued Roy Romer, then governor of Colorado, to have Amendment 2 nullified as a violation of the Fourteenth Amendment. The Colorado Supreme Court agreed with the trial court that that Amendment 2 was unconstitutional, in that it named a specific class and penalized it. The state appealed to the high court.

In a clear departure from the heavily moralizing tone of the majority in Hardwick, Anthony Kennedy spoke for six of the justices—himself and Stevens, O’Connor, Souter, Ginsburg, and Breyer—in striking down Amendment 2 and affirming the state supreme court.

Kennedy seemed particularly outraged by the notion that the law prevented homosexuals from seeking political or judicial recourse against discrimination. Moreover, a fair reading of Amendment 2 could lead to the conclusion that “it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” Not once in his opinion did Kennedy refer to Hardwick, although he referenced many of the leading cases in civil rights.

Justice Antonin Scalia, joined by Chief Justice Rehnquist and Justice Clarence Thomas, referred almost immediately to Hardwick, and he saw no harm in what he described as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the effort of a politically powerful minority to reverse those mores through use of the laws.” The Court should not “take sides in the culture war.” Scalia felt that Hardwick should have been the deciding precedent, and not the civil rights cases cited by Kennedy.

Romer v. Evans is seen by many as a major turning point in the battle for gay rights. Kennedy gave advocates what they had been seeking all along: recognition that prejudice on the basis of sexual orientation was no more acceptable under the Constitution than discrimination because of race or religion. Blackmun in Hardwick had provided one part of the constitutional argument, namely that what consenting adults did in their bedrooms was no business of the government, but stood protected by the right of privacy. Now Kennedy gave them an even stronger basis. No group, Kennedy argued, could be made inferior and discriminated against under the Equal Protection Clause.

Gay and lesbian advocacy groups now believed they could secure a reversal of Hardwick, and set about looking for the right test case. They found it in the case of John Geddes Lawrence and Tyrone Garner, arrested in their Houston apartment for violating the Texas sodomy law. The justices accepted Lawrence v. Texas in 2003, and asked counsel for both sides to address several questions, of which the most important was whether Bowers v. Hardwick should be overruled.

Unlike the Georgia statute in Hardwick, which penalized sodomy no matter who committed it, the Texas law applied only to same-sex practices, and thus targeted homosexuals. If the Court had meant what it said in Romer, this by itself should have been enough to invalidate the Texas law as well as similar prohibitions in twelve other states. The justices also recognized that, unlike Romer, they could not strike down the Texas law and leave Hardwick in place.

In conference five members of the Court—Stevens, Kennedy, Souter, Ginsburg, and Breyer—agreed that the Texas law should be struck down and Hardwick overruled. O’Connor agreed with the first point but not the second, while Rehnquist, Scalia, and Thomas would have upheld the law. With the chief justice in the minority, John Paul Stevens as the senior justice in the majority had the authority to assign the case, and might well have kept it for himself, since he, too, had written a forceful dissent in Hardwick. He chose Anthony Kennedy for two reasons. First, Kennedy’s opinion in Romer formed the jurisprudential basis for the decision in the Texas case, and second, Kennedy was considered a moderate conservative. A decision sure to upset social conservatives and evangelical Christians would be better received if it came from a conservative. In the end Stevens got exactly what he hoped for—an analytically powerful opinion that also rang with moral fervor.

Courts as a rule are reluctant to overturn precedent, especially in cases that had been decided recently. Hardwick was less than two decades old, and three of the justices in that case still sat on the bench. Kennedy understood that in order to justify such a step, he had to show that the earlier opinion failed on jurisprudential as well as societal grounds. He began with what is the boldest statement of a right of privacy articulated by a modern Court (some of whose members deny the existence of such a right):

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

The only way the Court could agree that the sexual conduct of two consenting adults fell within the liberty provisions of the Due Process Clause was to reexamine Hardwick. He questioned Byron White’s framing and charged that how White had phrased the issue “discloses the Court’s own failure to appreciate the extent of the liberty at stake.” The very wording “demeans the claim of the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”

A fair-minded understanding of the basic constitutional right of privacy, Kennedy declared, would take seriously gay as well as straight sexual relations, the accompanying integrity of the connection between sexual expression and companionate friendship and love. “When sexuality finds overt expression in intimate conduct with another person,” he wrote, “the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” The state, he declared, “cannot demean [homosexual] existence or control their destiny by making their private sexual conduct a crime.”

Justice Scalia (joined by Rehnquist and Thomas) entered one of his bravura dissents, charging the majority with signing on to the “homosexual agenda,” without ever defining what that meant, and attacking the majority for its inconsistency. Scalia, like White, did not believe in a constitutional right to privacy in general or its application to support sodomy in particular. He dismissed Kennedy’s careful historical analysis that showed how attitudes toward homosexuals had changed over the years, because he considered such history constitutionally irrelevant.

Toward the end of his dissent, Scalia penned a dire and what proved to be a prescient warning. The majority’s logic, he declared, would inevitably lead to the judicial imposition of same-sex marriage. Although the majority had assured the public that Lawrence did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” Scalia scathingly said, “Do not believe it.”

Scalia, for once, proved prophetic. In 2013 the Court struck down portions of the Defense of Marriage Act, and required the federal government to recognize same-sex marriages in states that allowed them. Two years later, with Kennedy again speaking for the Court, it held same-sex marriage to be protected under the Equal Protection Clause in Obergefel v. Hodges. Harry Blackmun had left the Court in 1994, and died five years later. His dissent in the Bowers case, provided the impetus that gave constitutional protection to men and women who had only recently been shunned by society.

Excerpted from Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue, by Melvin I. Urofsky. Copyright © 2015 by Melvin Urofsky. Excerpted by permission of Pantheon, a division of Random House LLC. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.