DESPITE THE SUPREME COURTS UNJUST RULING IN THE BOWERS V.

HARDWICK CASE, TO WHAT EXTENT DID THE CASE GALVANIZE THE MOVEMENT FOR GAY LIBERATION?
Abstract
An investigation determining the extent of galvanization the Bowers v. Hardwick case had on the gay rights movement and liberation of homosexuals. Hardwick lost the case, as the state of Georgia held the law making sodomy illegal as constitutional, but the case had an overall positive affect in terms of furthering equality for all.

Bryce Daniel 000846 005 17 December 2012 Ms. Battenfeld IB History 2/Global Studies Montgomery High School 1989 words

Contents
A. Plan of investigation: ........................................................................................................ 1

B. Summary of Evidence (thematically organized) ............................................................. 1 The Premise: .......................................................................................................................... 1 The Arrest: ............................................................................................................................. 2 The Case:............................................................................................................................... 2 The Impact: ............................................................................................................................ 3 The Present: ........................................................................................................................... 4 C. Evaluation of Sources ...................................................................................................... 4 D. Analysis ............................................................................................................................. 5 The Premise: .......................................................................................................................... 5 The Arrest: ............................................................................................................................. 5 The Case:............................................................................................................................... 6 The Impact: ............................................................................................................................ 7 The Present: ........................................................................................................................... 7 E. Conclusion ........................................................................................................................ 7

Daniel 1

A. Plan of investigation: Despite the Supreme Courts unjust ruling in the Bowers v. Hardwick case, to what extent did the case galvanize the movement for gay liberation? To determine the extent at which the Bowers v. Hardwick case galvanized gay rights liberation, the background movement will be examined and the events that set the climate for the case will be outlined. Secondly, the court case itself will be looked at including the incident that led up to it, as well as the justices thought process and final verdict. Lastly, the impact the court case had on the gay community as well as the gay rights movement will be inspected. The majority of evidence will come from the documentationincluding but not limited to the court brief surrounding the court case itself and the personal ethics of Supreme Court Justices. The background of the gay rights movement in general will also be examined using primary sources such as interviews from gay rights activists and journals detailing thoughts of those involved with gay liberation before and after the court case. Furthermore, the book The Courage of their Convictions which prompted this historical investigation, will be used to outline the events of the case and proceedings chronicling Hardwicks ordeal before he ever stepped foot in the court room.

B. Summary of Evidence (thematically organized)

The Premise:
1950sharmful to ones person and illegal to sign up with pro-gay groups (Miller). Mattachine Society used codes based on Italian street comedies to communicate. In the 1960s, the American Law institute suggested that states repeal the law banning sodomy between consenting adults (Miller).

Daniel 2

Illinois first to repeal sodomy laws, followed by Connecticut in 1969. Majority of states kept laws with up to 20-year prison sentences. (Miller).

New York police department raided the Stonewall Inn, a gay bar in Greenwich Village; crowd of 2,000 gays and supporters fought back for three days (Miller).

1973American Psychiatric Association realized homophobia was main issue and that homosexuality is not a disease or mental disorder (Miller).

Gay rights movement became more widespread and garnered support from government officials. 1980, the Democratic Party became the first major American party to endorse the homosexual rights platform (Miller).

The Arrest:
Michael Hardwick, a gay Georgian man working in a known gay bar, wrongly arrested for drinking in publicmerely throwing the bottle away when the policeman saw him (Irons). The officer, upon determining Hardwicks sexuality, gave him a hard time and a citation. The ticket had two court dates on it, one handwritten on topWednesdayand the other in the middleTuesday. Hardwick, assuming the top one was correct, failed to appear in court (Irons). The officer quickly served the first warrant that he had processed himself in years. Walked in on Hardwick and a male companion engaging in sexual activity and promptly arrested them both (Irons).

The Case:
Court upheld Georgian statute prohibiting homosexual sodomy, saying that the Constitution does not confer a fundamental right upon homosexuals. Made no mention of sodomy in heterosexual couples (Sheyn).

Daniel 3

To claim that a right to engage in such conduct is deeply rooted in this Nations history and tradition or implicit in the concept of ordered liberty is at best, facetious (Bowers).

Chief Justice Warren E. Burger, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White were the Justices who sided with the State (Mikula).

There is no such thing as a fundamental right to commit homosexual sodomy. However, Burger made it known that he opposed gay rights and he felt that homosexual sodomy was a crime against nature of a deeper malignity than rape. (FindLaw).

Justice Powell changed his vote at the last minute siding with the prosecutor (Lazarus). Powell later stated I do think it was inconsistent in a general way with Roe (Roe was also a case of privacy that he was a part of. In this case, he supported the defendant). When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better arguments (Shilts).

The Impact:
The National Gay and Lesbian Task Force established a Privacy Project to repeal sodomy laws state by state immediately after Bowers from 1986 to 1991 (Sheyn). The Bowers case went under attack almost as soon as the court reached a verdict. (Sheyn). After the case, a large amount of articles arguing the Courts reasoning that helped draw favorable attention to gay rights. This ultimately led to the ability to overturn Bowers in the latter case Lawrence v. Texas (Sheyn). Lawrence v. Texas case later overturned Bowers (Sheyn). It was organizations like the National Gay and Lesbian Task Force that helped to produce change, while using Bowers as a driving force (Sheyn).

Daniel 4

The Present:

The world is a different place today (Wolfson).

Ten years after Hardwick gave right-wing judges a free-floating license to discriminate, [Evan Wolfson, Junior attorney] won a U.S. Supreme Court ruling that kicked the guts out of its core holding. The loss of the Bowers case left the world shocked and they demanded change. Ten years later they had enough support that the Georgia Supreme Court overturned the states sodomy law (Wolfson).

Gays have moved past fighting to be left alone and are now fighting to be let in (Wolfson).

C. Evaluation of Sources Information cited as Irons comes from Peter Irons book, The Courage of their Convictions. The book details of various court cases that made it to the Supreme Court. The purpose of the book is to share the untold stories of those who took their cases to the Supreme Court and made an impact on society. Irons himself had a court case, but it did not go all the way to the highest court, leaving him with a strong passion for justice. Each chapter is written from Irons perspective, as well from the persons whom were involved with the cases. This allows for a more objective as well as a subjective analysis of the information. The source has value because it looks at the Bowers v. Hardwick case from both sides during the action, as well as with retrospect. Irons is also a legal scholar and a political science professor, making him qualified for analyzing the court case with some accuracy. This source is limited however, because although Irons is a legal scholar and knows the field particularly well, he is a strong political activist and will always side with the people when it is an issue of human rights. Furthermore, the whole

Daniel 5

book is about the ones who tried to make a difference; it would make no sense to write with a bias against them. The source denoted as Sheyn, A Shot Heard Around the LGBT World was volume 4, issue 1 of Journal of Race, Gender and Ethnicity. The issue discusses the overall importance of the Bowers v. Hardwick case and its effect on gay liberation. The journal also details what the gay rights movement was like at the time of and after the court case. Value-wise, the author, Elizabeth Sheyn, is a law clerk for the Honorable James S. Gwin, United States District Court for the Northern District of Ohio. This makes her an expert in the field and gives her insight into the inner-workings of the court system. Since the article was written in 2009, it looks back with retrospective upon the outcome and effects of the case. The only limitation is that the journal article only analyzes, for the most part, one side of the court case and its outcome. D. Analysis

The Premise:
Before the Bowers v. Hardwick court case, homosexuality was swept under Americas. The thought of movement for equality seemed absurd at the time as activism could do more harm than good as it was dangerous and illegal. Activists circumvented laws by using secret codes, but support was not widespread (Miller). After events like Stonewall and the Psychiatric Association determining that homosexuality is not a disease, the gay rights movement soon became even more widespread and even gained support from government officials proving people were open to change (Miller).

The Arrest:
Michael Hardwick was arrested, not for public intoxication, but for being gay. The arresting officer in the case despised Hardwick and the arrest was expedited by his

Daniel 6

biases. The officers hasty arrest shows his dislike for gays. Hardwick fought an uphill battle in terms of his fight for justice. In this time period, people were less liberal than today, and they did not support homosexual rights. It is evident by the policemans treatment of Michael Hardwick that there were few on Hardwicks side. Even though the legal system is supposed to be impartial and equal for all of those who seek justice, the court system was just not at that stage yet (Irons).

The Case:
The court demonstrates a double standard because it ruled homosexualbut not heterosexualsodomy as unlawful (FindLaw). It is clear from Justice Byron Whites statement claiming that sodomy is at best facetious, he had strict morals and firmly disapproved of homosexuality (Bowers). Part of the reason for the loss of the Bowers v. Hardwick case was due to the personal beliefs of the Supreme Court. Chief Justice Burgers reasoning for concurring with the court did not so much have to do with the constitution, but rather his views of homosexuality. He thought homosexuality was as bad as rape (FindLaw). Chief Justice Warren E. Burger delivered the courts opinion and Sandra Day O'Connor, William H. Rehnquist, and Byron R. White sided agreed. Lewis F. Powell, Jr. filed a concurring opinion, but there were four, Blackmun, Brennan, Marshall, and Stevens dissented (Mikula). Justice Powell, who had an alternate reason for voting against Hardwick, wanted to strike down the law but he joined the majority because Hardwick had already gone to jail and if he was not found guilty, it would have been false imprisonment. Justice Powell also changed his vote because he thought that he had never known any homosexuals. This is a poor reason and is comparable to saying because one does not personally know any Jewish people, they support the Holocaust (Lazarus).

Daniel 7

Powell, after some time, came to the realization that he made the wrong decision. It was based on predispositions because it is not consistent with the ruling he made during the Roe (Shilts).

The Impact:
The court case gave activists support because Americans felt the Supreme Court messed up. As soon as the verdict came out, Americans voiced their disapproval. The press surrounding the case also resulted in a large amount of publicity. This case ultimately led to the ability to overturn of Bowers in the latter case Lawrence v. Texas. The case had a large effect on gay rights organizations, making them more well-known. With the greater publicity, the groups could work on repealing sodomy state by state with relative success (Sheyn). The case also paved the way for the decision in Lawrence; Bowers gave the gay rights movement the notoriety it needed to succeed (Sheyn).

The Present:
Today gay rights is a center-stage issue. Many Americans support the cause and it is well known across the nation. Before the case in 1986, there were only a few states without sodomy laws; that number grew to 26 states in the subsequent decade, and by 2003, the remaining sodomy laws were struck down by the Supreme Court. Gays today no longer want to be left alone to be who they are in segregated groups. Presently, they are fighting for equality; they want to be let into the private club that is heterosexual marriage (Wolfson). E. Conclusion The Bowers v. Hardwick case ruled unfairly against the defendant, holding the Georgia statute lawful. Hardwick faced much adversity and even the Supreme Court

Daniel 8

Justices based their decision on personal beliefs. Bowers lost cause of Justice Powells swing vote, however the defeat gave momentum to gay rights movements and activist organizations The movement used publicity from the court case and the support from Americans as ammunition in repealing sodomy and as a stepping-stone in overturning the decision in Lawrence. Although some believe the loss of the case was primarily a setback, the state of the gay rights moment to date shows otherwise. Currently sodomy has been repealed in all of the states, starting after the Bowers case. While Hardwick unfairly loss in the end, he helped a movement that was bigger than he gain more traction than before.

Daniel 9

Works Cited

"Bowers v. Hardwick - 478 U.S. 186 (1986): Justia US Supreme Court Center." US Law, Case Law, Codes, Statutes & Regulations: Justia US Supreme Court Center. Web. 19 Feb. 2012. <http://supreme.justia.com/cases/federal/us/478/186/case.html>. This source is the court brief for the case. It contains the syllabus, how the court held, as well as the justices dissent. This source is primarily facts and not opinion so therefore its limitations are few. "FindLaw | Cases and Codes." Find Law. Web. 22 Mar. 2012. <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us>.This source provided information on the case as well as the viewpoints expressed by the Supreme Court Justices. It helped in determining how their personal beliefs factored into their decisionmaking. Irons, Peter H. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. New York, N.Y., U.S.A.: Penguin, 1990. Print. This source is used to outline the events of the case and proceedings chronicling Hardwicks ordeal before he ever stepped foot in the court room. It provides an objective view of the case, as well as a first-person account from Hardwick's perspective. Lazarus, Edward. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. New York: Penguin, 2005. Print. This source provided crucial insight into why Justice Powell may have changed his vote. Reportedly he claimed that the reason he flipped sides was because he did not know any gays. However, it turns out that one of his clergy was in fact gay. Mikula, Mark F., L. Mpho Mabunda, and Allison McClintic. Marion. Great American Court Cases. Detroit: Gale Group, 1999. Print. This source was really helpful in getting the people involved in the case straightened out. It listed the appellant, appellee, both lawyers, and

Daniel 10

all of the justices. It was a great source in the beginning when I was unfamiliar with the case. Miller, Neil. Out of the Past: Gay and Lesbian History from 1869 to the Present. London: Vintage, 1995. Print. This source is used primarily to give background information on gay rights movements. It gives an honest recollection of all the events from the 1869s to the near-present. Sheyn, Elizabeth. "The Shot Heard Around the LGBT World: Bowers v. Hardwick as a Mobilizing Force for the National Gay and Lesbian Task Force." Journal of Race, Gender and Ethnicity 4.1 (2009). Print. This journal source helps with the second part of my thesis. It answers the question of the overall importance of the case and provides information on what it did as far as gay liberation goes. Shilts, Randy. Conduct Unbecoming: Gays and Lesbians in the U.S. Military. New York: St. Martin's Griffin, 2005. Print. This source provides crucial information concerning the reflection of Justice Powell. It was from this source that I learned how he felt about changing his vote. He tells a group of law students that he had actually made the wrong decision. Wolfson, Evan. "Bowers v. Hardwick June 1986: everyone involved, including Evan Wolfson, was shocked when they lost the groundbreaking Supreme Court case. (Gods & Monsters)." The Advocate [The national gay & lesbian newsmagazine] 12 Nov. 2002: 94+. General OneFile. Web. 27 Nov. 2012.