On October 18, 1990, retired Supreme Court justice Lewis Powell made a remarkable reply to a student question at NYU Law School: he admitted he had been wrong in providing the swing vote that affirmed the conviction of Michael Hardwick, who had been charged with committing sodomy with another adult male in the bedroom of his own home.
The case, Bowers v. Hardwick (1986), was based on a 107-year-old Georgia antisodomy law. The majority decision excluded gays and lesbians from the most fundamental privacy protection. Said Chief Justice Warren Burger in a concurring opinion:
“To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
In angry dissent, John Paul Stevens, joined by William Brennan and Thurgood Marshall, answered: “Every free citizen has the same interest in ‘liberty’ that the members of the majority share.
“From the standpoint of the individual, the homosexual and heterosexual have the same interest in deciding how he will live his own life, and more narrowly, how he will conduct himself in his personal and voluntary associations with his companions.”
Justice Lewis Powell, as a member of the majority in that case, was asked four years later at NYU if he had any second thoughts— particularly since Powell had supported the privacy protections in the Roe v. Wade abortion decision.
“I think I probably made a mistake in the Hardwick case,” Powell said. Later, Powell added, “I do think it was inconsistent in a general way with Roe. When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments.”
It is rare for a justice of the Supreme Court, on the bench or retired, to confess error. In this case, the Court itself has not reversed its opinion in Bowers v. Hardwick.
But on November 23 of this year, Georgia’s supreme court struck down the state sodomy law under which Hardwick had been convicted. Said the state’s chief justice, Robert Benham:
“We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity.”
Benham’s decision made an important point that is not widely known. A state supreme court can sometimes go beyond the U.S. Supreme Court.
A justice of the Supreme Court once told me: “We are not infallible. But we are final.” Not forever. The Supreme Court has, over time, reversed some of its decisions. For instance, it eventually overturned the 1857 Dred Scott ruling that blacks, whether free or slave, had no constitutional rights.
But there is sometimes another way to overcome a U.S. Supreme Court decision— in state supreme court. As Georgia’s Benham emphasizes:
“It is a well-recognized principle that while provisions of a state constitution may not be judicially construed as offering less protection to that state’s citizens than a parallel provision in the Federal constitution, the state constitution may provide more protection than the U.S. Constitution.”
And the constitution of the state of Georgia does have more privacy protections than the United States Constitution.
Interestingly, one of the dissenters in Bowers v. Hardwick, Justice William Brennan, helped educate a generation of lawyers— and judges— to look to their state constitutions when the U.S. Supreme Court turned to the right and weakened parts of the Bill of Rights.
Brennan had been the key force in strengthening civil liberties during the years of the Warren Court. But, as the Court, under Chief Justices Burger and Rehnquist, became more hostile to certain civil liberties, Brennan— in lectures and articles— pressed his remedy for dealing with bad Supreme Court decisions— by turning, when that was possible, to state constitutions.
That’s how Bowers v. Hardwick was struck down in Georgia. As Stephen Scarborough, a lawyer with the Lambda Legal Defense and Education Fund— which filed a friend-of-the-court brief in the winning Georgia case— told The New York Times:
“I think [this new decision] really sends the signal to other states who may be considering similar challenges that we are in a day and age where the government simply does not belong in bedrooms.”
After Michael Hardwick’s conviction was upheld by the United States Supreme Court in 1986, his lawyer said the basic constitutional question “was not what Michael Hardwick was doing in his bedroom, but rather what the state of Georgia was doing there.”
But the damage done by the U.S. Supreme Court in that case remains in parts of the rest of the country. Kevin Sack has reported in the Times that the Georgia reversal of Bowers v. Hardwick “leaves 18 states with antisodomy laws of some kind. Thirteen prohibit both homosexual and heterosexual sodomy, while five ban only same-sex sodomy.” (Emphasis added.)
In 1991, Michael Bowers, still Georgia’s attorney general, took back a job offer to lawyer Robin Shahar— as I wrote in the Voice at the time— when he found out she was a lesbian. He said her appointment would violate Georgia’s moral standards as expressed in Bowers v. Hardwick.
Earlier this year, Bowers was running hard in the Republican primary for governor of Georgia when it was revealed that for a long time, he had been involved in an adulterous affair.
Like William Jefferson Clinton, Bowers professed copious regrets for his abdication of his long-professed moral standards, but this whited sepulchre was soundly defeated. He has now been defeated again.