1. Grim 1
C. Kevin Grim
Stafford
POS3606
November 1, 2008
“At Best, Facetious”
Bowers v. Hardwick, in 1986, was the most controversial case of its year due to the case’s
involvement with personal privacy rights and homosexual freedoms. At its core, the case asked
the question of whether or not there is a fundamental right under the United States Constitution
to engage in consensual, private homosexual sodomy (Irons, 363). Bowers came before the
United States Supreme Court in the Spring of 1986 and was argued on March 31st
by Michael E.
Hobbs, Esq. and Laurence Tribe, Esq. The United States Supreme Court Justices whom presided
over the case included Chief Justice Warren E. Burger, Senior Associate Justice John Paul
Stevens III, and Associate Justices William J. Brennan, Jr., Byron White, Thurgood Marshall,
Harry Blackmun, Lewis F. Powell, Jr., and Sandra Day O’Connor. Bowers was decided by the
Court on June 30, 1986, by a slim 5-4 majority that ruled in favor of the Georgia sodomy law
which made oral and anal sex illegal, thus reversing the U. S. Court of Appeals for the Eleventh
Circuit ruling. The Court held that the right to privacy granted by the Fourth Amendment does
not apply and that there is no constitutional right protecting the right to engage in homosexual
activity (even if consensual). Supporters of the decision saw the Court as upholding the
constitution, protecting traditions, and ensuring the continuation of the human race through
sound sexual practices. Critics, conversely, saw the holding as homophobic, intolerant and an
assault on homosexuals’ right to privacy. Even today, homosexuals and gay rights activists alike
view the decision as a blemish on the Court’s reputation, a Court that is usually affiliated with
being ahead of the social curve. Whether the Court’s ruling during the Bowers case was right or
wrong is up for debate (though currently, the Lawrence v. Texas holding labels the Bowers

2. Grim 2
decision as being incorrect). What can be determined, however, is the importance of the issues,
opinions, and holdings of the case and the effect the decision had across America.
The case Bowers v. Hardwick first originated from a court summons regarding a ticket
Michael Hardwick had received for “public drunkenness” (Lacayo, 1998). When Hardwick did
not appear for his court date, a Police Officer visited his residence. The Atlanta Journal and The
Atlanta Constitution reported on the event stating, “One hot August afternoon in 1982, Atlanta
Police Officer K.R. Torick knocked on the door of Michael Hardwick’s Virginia-Highland
apartment [located in Fulton County, Georgia] to deliver a routine ordinance violation warrant.
Hardwick’s roommate came to the door” (Thompson, 1986). While the roommate claimed to not
know if Hardwick was home, he permitted the officer to enter and search the premises for Mr.
Hardwick. Upon further inspection of the apartment, Officer Torick observed a bedroom door
“partially” ajar and so proceeded into the room. Once inside, Torick witnessed Hardwick and
another unidentified male “in the act of violating Georgia’s 153 year-old legal prohibition
against sodomy” (Thompson, 1986). Both men were immediately arrested despite the fact that
they were adults having consensual sex in the privacy of Hardwick’s home.
The sodomy law (Georgia code section 16-6-2) that Hardwick was charged with is
defined by the Georgia Constitution as “any sexual act involving the sex organs of one person
and the mouth or anus of another” and includes a mandatory 1 to 20 year sentence for any and all
adults (including married couples) (Irons, 362). It is a law that has rarely been enforced (with
regards to a marital situation, the law had never been enforced in the state of Georgia), with the
last time prosecution taking place “in the 1930’s or 40’s” according to Hobbs. Thus, it was of
little surprise that the Fulton County District Attorney, Lewis Slaton, opted to not press charges
against Hardwick. Slaton’s reasoning for not placing Hardwick before a grand jury was “because

3. Grim 3
the statute allows too much (jail) time for conviction…the law should have been changed to a
misdemeanor years ago, as was the fornication law, but we just never got around to it. These
kinds of people you don’t put in jail – unless you catch ‘em in Piedmont Park or something like
that. It’s a good statute, [and] I didn’t want to lose [it]” (Dickerson, 1986). In response to
Slaton’s refusal to take the case to trial before a grand jury (a precondition necessary for any
form of legal disciplinary action to occur), Michael Hardwick sued the Attorney General of
Georgia, Michael Bowers, on the grounds that the state of Georgia’s sodomy law was null and
void. Hardwick claimed that as an active homosexual he was in constant danger of being
prosecuted for his actions at any time. The fundamental reason for Hardwick’s action, instead of
simply being content with not having to go to court, was rooted heavily in the American Civil
Liberties Union’s (ACLU) desire to find an ideal “test case” to challenge Georgia’s sodomy law.
Thus, the ACLU approached Hardwick with their proposal, which he later accepted (Hill, 1989).
Hardwick’s lawsuit was later joined by John and Mary Doe (a heterosexual couple opposed to
the Georgia sodomy law because it forbade oral and anal sex). The Section was filed in 1983
with Hardwick and company seeking injunctive relief and declaratory relief against the
enforcement of Georgia’s sodomy statute.
The case was first presented before Judge Robert Hall and the United States District
Court for the Northern District of Georgia, where Hardwick was represented by attorney
Kathleen Wilde (the case was filed on Hardwick’s behalf by the ACLU and the Georgians
Opposed to Archaic Laws) (Woolner, 1985). The case was summarily affirmed and dismissed
“for failure to state a claim, relying on Doe v. Commonwealth’s Attorney for the City of
Richmond” (a case where a Virginia anti-sodomy law was upheld) (Barker, 776). The District
Court ruled in favor of Mr. Bowers (in addition to Lewis Slaton and Atlanta Public Safety

4. Grim 4
Commissioner George Napper, who were also being sued by Hardwick), a decision Hardwick
then appealed to the United States Court of Appeals for the Eleventh Circuit.
On Tuesday, May 21, 1985, the Eleventh Circuit Court for Appeals ruled in favor of
Michael Hardwick, reversing and remanding the previous District Court’s holding. Through a 2-
1 decision, the Eleventh Circuit Court of Appeals challenged Georgia’s sodomy law, claiming
that it did in fact “violate the ‘fundamental constitutional rights’ to privacy.” The court continued
by stating that such “sexual activity between consenting adults is ‘beyond the reach of state
regulation’.” The opinion was written by Judge Frank Johnson Jr., of Alabama (who was joined
by Senior Judge Elbert Tuttle) which declared homosexuals as being equal to married couples in
their ‘right to association’ being free from state interference. The court’s ruling went on to claim
a parallel between the U.S. Supreme Court’s ruling that “intimate association” between married
couples (as well as unmarried heterosexuals) is expressly protected by the U.S. Constitution,
having been affirmed in the Supreme Court’s Griswold v. Connecticut decision (a case granting
the “right to marital privacy”) and then again in Eisenstadt v. Baird (in which the Supreme Court
struck down a Massachusetts law prohibiting unmarried couples from purchasing and using
contraceptives on the grounds that it violated Section 1 of the Fourteenth Amendment’s Equal
Protection Clause). The Appeals Court claimed that while the high court has not granted this
same constitutional protection to homosexuals, the court (11th
Circuit of Appeals) feels “for
some, the sexual activity in question here serves the same purpose as the intimacy of marriage.
That activity is therefore protected, at least when it is in private between consenting adults”
(Kamen, 1985). This logic of personal privacy between individual adults was supported by the
famous/infamous case Roe v. Wade (extending privacy rights by granting women the right to
abortion through the Due Process Clause of the Fourteenth Amendment) and the lesser known

5. Grim 5
Stanley v. Georgia (1969), in which a man was arrested for owning pornographic material. The
Supreme Court ruled that Stanley had the personal right to own such material in the comfort of
his own home under the First Amendment (right to free speech) and the Fourteenth Amendment
(one cannot be deprived of life, liberty, or property).
The lone Circuit Court dissenter in Hardwick’s case was Judge Phyllis Kravitch, who
only disagreed with the majority in part. Kravitch’s reasoning was that she did not believe the
court contained the authority to rule on such a matter. However, besides this complaint, Kravitch
stated she would have voted with the majority. The Eleventh U.S. Circuit Court of Appeals
concluded that “the constitutional protection of privacy reaches its height when the state attempts
to regulate an activity in the home” (Woolner, 1985).
The Circuit Court did, however, stop short of “striking down Georgia’s sodomy law
altogether” (Woolner, 1985). Instead, the ruling remanded the case to Judge Robert Hall and the
U.S. District Court for trial “at which time the state must prove, in order to prevail, that it has a
compelling interest’ in regulating private sexual behavior” by virtue of the Ninth Amendment
and the Due Process Clause of the Fourteenth Amendment (Hager, 1986). Hardwick’s lawyer,
Wilde, reportedly stated that through this decision, the court essentially “‘set the highest hurdle
possible’ for the state to jump” (Woolner, 1985). Instead of following the Eleventh Circuit
Court’s decision, however, Attorney General Michael Bowers (representing the state of Georgia)
chose to appeal the circuit court’s decision to the United States Supreme Court.
On Monday, November 4, 1985, the U.S. Supreme Court granted certiorari, agreeing to
preside over the case now entitled Bowers v. Hardwick. In coming to this decision, the Supreme
Court, for the first time in history, would decide on “whether the Constitution prohibits states
from regulating private sexual activities between consenting adults” (Kamen, 1985). Prior to

6. Grim 6
Bowers, the last case to be heard by the Supreme Court involving a sodomy law was in 1967 in
which the Court upheld Virginia’s statute that “homosexual aliens may be deported as people
‘afflicted with a psychopathic personality’” (Woolner, 1985).
Bowers came before the Court for oral argument on March 31, 1986 at 10:02 a.m.
Representing the Respondents Michael Hardwick and John and Mary Doe was Laurence Tribe,
Esq., a Harvard Law Professor specialized in constitutional law. Representing the Petitioner,
Michael Bowers, was Michael E. Hobbs, Esq. Hobbs, the Senior Assistant Attorney General of
Georgia (at that time). The case begins with Hobbs’ argument. Hobbs opens by declaring what
he and the state of Georgia feels is the most important issue to be decided on by the U.S.
Supreme Court, that being “whether or not there is a fundamental right under the Constitution of
the United States to engage in consensual private homosexual sodomy.” Hobbs explains
Hardwick’s arrest and then states that the prosecuting attorney (Slaton) did not present the case
to the grand jury, an issue many of the Justices would find troubling later in the proceedings.
Hobbs is eventually asked the question, “when was the last time this statute was enforced?”
Hobbs responds by saying the last instance was over forty-five years ago, adding that such
arrests are usually made when the illicit action is committed in a more public setting. This brings
forth the issue of archaic law and privacy of the home.
Hobbs argues that the Georgia statute is in reality synonymous with common law (laws
that have been engraved into our daily lives through tradition and historical weathering).
However, this sentiment goes against many mainstream beliefs. One such belief pertaining to the
Justices being “subscribed to the concept that the principles of the Constitution should not be
frozen in time, but should grow in meaning as the country itself evolves. Their boldest decisions
reflected that philosophy more than they expressed the personal opinions of the dominant

7. Grim 7
justices” (Stoddard, 648). The Constitution was created to be flexible, it was made to create a
balance between individual liberties and “legitimate state legislative prerogatives” though Hobbs
feels the extent to which Hardwick and company were willing to stretch this purpose far
exceeded what “our forefathers intended” (Irons, 365). Regarding privacy in the home, Hobbs
predicted that the respondent’s attorney, Tribe would present a “crack-in-the-door” argument
which will claim that the Circuit Court’s decision will “not go beyond consensual private
homosexual sodomy.”
Hobbs, on the other hand, did not see the Circuit Court’s decision as a “crack-in-the-
door.” Instead, Hobbs feared that the Circuit Court’s holding, if kept, would be the equivalent of
opening “Pandora’s Box.” As Hobbs explained, “if the Eleventh Circuit’s decision is affirmed…
this Court will quite soon be confronted with questions concerning the legitimacy of statutes
which prohibit polygamy, homosexual, same-sex marriage, consensual incest, prostitution,
fornication, adultery, and possibly even personal possession in private of illegal drugs” (Irons,
365). Hobbs was next asked, if the statute’s retention is so important, why did the local
prosecutor not bring the case to court (referring to the case as being handed to him, the
prosecuting attorney, on a “silver platter”)? Hobbs replied that he simply does not know the
rationale but guaranteed the Court that the law is enforced. Hobbs expressed his, and the state of
Georgia’s, concern that should the Eleventh Circuit Court’s decision be upheld, it would mean a
complete “reshuffling” of society. Though, Hobbs did admit that the U.S. Constitution’s Fourth
Amendment severely limited the state’s enforcement of such a law when in fact the conduct
takes place in the privacy of one’s home. Regardless of this, however, Hobbs believed that the
Fourth Amendment’s restrictions should have no bearing on whether there is or is not a
“fundamental right” to engage in homosexual sodomy.

8. Grim 8
Hobbs continued by restating his and the state of Georgia’s position that there is no right
for individuals to engage in this form of sexual promiscuity. Hobbs also held that the state of
Georgia should not be required to show compelling state interest (CSI) in order to prohibit such
conduct from taking place. He defended this position by citing the 1977 Carey v. Population
Services International decision which related to abortion and contraception. The Carey decision
struck down a New York law barring distribution of birth control devices to minors under age
16. Carey was used by Hobbs in order to declare that “the Court has not definitively answered
the difficult question of whether and to what extent the Constitution prohibits state statutes
regulating [private consensual sexual] behavior among adults.” Hobbs also used this seminal
case in order to debunk the Circuit Court’s holding that the state must show compelling state
interest. The Carey ruling concluded that that the state did not have to show compelling state
interest in every instance that sexual liberty is concerned.
Hobbs, further in his argument cited yet another case, Moore v. East Cleveland, in which
he presented Justice Powell with his own opinion in that case. In Moore, Justice Powell
conceded that the Due Process Clause found in the Fourteenth Amendment can, at times, be
difficult to define. Powell went on to state that, in such circumstances, acceptable procedure for
determining whether or not a right is truly fundamental can be determined by the tradition,
history, and heritage of this nation” (Barker, 777). Hobbs, in mentioning this key note case,
moved on to describe Georgia’s stance on married couples being granted constitutional
protection. Hobbs stated that, according to Powell’s logic, “the Constitution protects the family
simply because the family is rooted in the history and traditions” of the United States. Likewise,
the family is rooted in marriage and so marriage must also be equally protected by the
Constitution, according to Hobbs’ own version of the Socratic Method. Hobbs strengthened this

9. Grim 9
rational by quoting Justice Douglas’ opinion in Griswold, which stated that the “right of marital
intimacy is older than our Bill of Rights,” which, in addition to Powell’s logic, makes marriage
almost immune to any and all sodomy laws.
Hobbs persisted in his argument by claiming that homosexuality and sodomy, on the
other hand, has never been a part of America’s heritage nor has it been privy to American
culture, tradition, or its history. In fact, America has historically condemned such actions as
being immoral and perverse. To support his position, Hobbs implicated the case Palm v. Hughes,
which states that “it is neither illogical nor unjust for society to express its condemnation of
irresponsible liaisons outside of the bonds of marriage” (Irons, 364). Hobbs goes on to state that
in addition to Powell’s conclusion in Moore, through Griswold, it would be rather difficult to
justify applying the statute to a married couple. Hobbs reminded the Court, however, that while
no married couple has ever been prosecuted under this statute in the state of Georgia, the anti-
sodomy law does not, in fact, discriminate between those married, unmarried, heterosexuals, or
homosexuals. Hobbs explained that technically anyone can be prosecuted under the law as long
as they are guilty of such conduct.
Hobbs next touched on his opponent’s argument that through Stanley and Payton v. New
York (held that the Fourth Amendment, made applicable to the States by the Fourteenth
Amendment, prohibits law enforcement officials from making warrantless and nonconsensual
entries into a suspect's home in order to make a routine felony arrest), Hardwick is granted right
to privacy within his home. Hobbs refuted this by claiming that this is not a Fourth Amendment
case. He maintained that while the Fourth Amendment does afford the right of privacy with
regards to the home, Hobbs felt that it did not, however, hinder the state from ratifying
regulations which govern activities at home (for example, it is illegal for a person to smoke

10. Grim 10
marijuana inside his or her own home, despite that person being entitled to privacy). The Fourth
Amendment is used here by Hobbs to argue that the true interpretation of the Amendment is to
only protect against illegal search and seizures. In the case of Bowers, the officer was legally
invited into the residence by an associate of Hardwick; therefore the Fourth Amendment holds
no bearing on the case (according to the state of Georgia). Hobbs even went as far as to say that
Stanley v. Georgia is irrelevant in this case because in that case, the Court found that Stanley had
a fundamental right guaranteed by the First Amendment (freedom to receive information and
ideas, according to Hobbs) to privately possess pornographic material. Hobbs then submitted to
the Court that in order for Stanley to be applicable, the Court must determine first if there even is
a fundamental Constitutional right to engage in homosexual sodomy. Hobbs clarifies that while
the right to privacy is important, it is not however absolute, citing Roe as evidence.
Hobbs asserted that there must be limits and that the Court must be wary of creating a
regime in the name of constitutional rights, which in reality may be little more than one of
pleasure-seeking and indulgence. Hobbs claimed that the Constitution, at all costs, must not
become a tool for changing social order. He concluded by saying that “the Eleventh Circuit and
the Respondents in this case, by failing to adhere to the traditions, the history of this nation and
the collective conscience of our people, would remove from this area of legitimate state concern,
a most important function of government and possibly make each individual a law unto himself”
(Irons, 365).
Laurence Tribe, representing Hardwick and the Does, also believed there should be
limits. However, he argued that the limits should be placed upon the government. Tribe initiated
his argument by alleging that this case is not just about gay rights but also deals with the limits of
governmental power. Tribe argued that the power used to arrest Michael Hardwick was not and

11. Grim 11
is not a power to preserve public decorum nor was the power used to protect others in private or
public. The power certainly was not used to control commerce, forbid a breach of state, or
eliminate the threat of physical harm to its citizenry. In fact, Tribe persisted that the power
applied did not even enforce laws against polygamy, bigamy, or incest. Tribe implied that the
state of Georgia went outside its reach and used a power it simply does not have a constitutional
right to use. Tribe maintained that the power invoked at the expense of Mr. Hardwick is the
power to “dictate in the most intimate and , indeed, I must say, embarrassing detail how every
adult, married or unmarried, in every bedroom in Georgia will behave in the closest and most
intimate personal association with another adult” (Irons, 365). When asked by Justice Powell if
there are any limiting principles to Tribe’s claim, Tribe responded that there are two.
The first limiting principle, Tribe continued, related to the actual location in which the act
occurred. Tribe called upon Stanley to explain that in this case, the definition of a “home” is
rather subjective. Tribe employed the example of a “mobile home” as not potentially qualifying
as a “home,” while a hotel room, being the legal equivalent to a home by rational of the Fourth
Amendment, might entitle it to full protection. Yet, Tribe continued by stating that the matter of
where the line should be drawn to define a location as being an acceptable home or not should be
left to the Court to decide. Tribe did claim, however, that a private home (which an apartment is)
represented the depository of constitutional traditions under the Third Amendment (used simply
to emphasize the safety associated with one’s home; that no soldier can take residence without
the owner’s approval) and Fourth Amendment (right of persons’ to be secure in their home).
Tribe also used Payton as an avenue to further solidify his point that the home is protected. In
Payton, the Court ruled that one is required to have a warrant prior to entering a private home
(even when probable cause is present).

12. Grim 12
In response to his definition of the home and the privacy it entails, Tribe was asked about
his stance on cohabitation by one who is already married (The Edmonds Act/The Moral Act) or
incest taking place in the privacy of the home. Tribe answered that while there is “something
special about the home” (taken from Powell’s opinion in Rakas v. Illinois), the private home
does not shield everything one might do there (Irons, 366). Tribe dictated that the state did have
the right to regulate the terms of relationships, just as it would the terms of a contract. The state
also possesses the power to punish those who void or breach that contract of relations, thus the
state can very well punish adultery and incest. Tribe moved on to further clarify one of his
limiting principles, explaining that it is not limited to just sodomy but instead includes all
physically sexual intimacies that are neither physically harmful nor forced (i.e. it must be
consensual).
Tribe next attacked the logic of one of Hobbs’ arguments. Tribe claimed that under
Hobbs’ theory, the state may become too powerful by being permitted to punish those without
compelling justification on the grounds of preserving moral fiber. Tribe explained that if such a
power is acquired, nothing would stop such a state from, for example, prohibiting something as
minor as kissing between unmarried couples (who, also under Hobbs’ theory, are not protected
under the Constitution…unlike married couples who are). Tribe stated that if the legislators of
the state truly wished for such a law to exist, little could be done to stop them in such a situation,
that is, as long as such a law had existed hundreds of years.
Tribe also pointed out an obvious inconsistency in Hobbs’ argument regarding why the
prosecuting attorney did not go forward with the case. If the state of Georgia truly wishes to
retain this anti-sodomy law, why does it not enforce it? When presented with a clear-cut case, the
prosecuting attorney chose to simply let the case slip through his fingers. This type of mentality

13. Grim 13
seems contradictory to Hobbs claim that the statute is indeed enforced. Further following this
discrepancy is the reality that the last prosecuted case was over forty years ago. Tribe felt that it
is here that there is an inherent unbalance between state and public interest. Tribe was quoted as
saying, “the absence of frequent prosecution in cases like this, apart from how strongly it
suggests the State of Georgia hardly has compelling or important interest in vindicating this law,
might also provide an avenue for avoiding a decision much as the Court found one in Poe v.
Ullman” (oyez.org). Tribe used the case Kelly v. Johnson and Justice Harlan’s dissent in Poe v.
Ullman (which Harlan is quoted as saying, “adultery, homosexuality, fornication, and incest are
immune from criminal inquiry however privately practiced”) to further elucidate his point. In
Kelly, Powell stated in his opinion that if a regulation on hair length was to go beyond that of
police officers and be instituted on a national scale, such an action would require a “balancing of
state interest against personal interest” (Irons, 366). In Poe v. Ullman, Justice Harlan expressed
his belief that when the state expresses its power over liberty at the crossroads of intimate
personal association, there must be at bare minimum a heightened sense of scrutiny. Tribe
paralleled this belief as he echoed, “when the state does, in fact, claim the power to define the
details of irresponsible intimacies, it should do so through a form of tightened scrutiny” (Irons,
366). Tribe reiterated that he and the Respondents are not arguing for complete immunity. They
are asking for an increased sense of scrutiny.
Under this blanket of heightened scrutiny, Tribe argued that if the state were to ever try to
illegalize extra/non-marital relations, with the sole intention of placing marriage on a preverbal
pedestal that action would appear before the citizenry as dubious and would hence be rejected
(using Carey and Griswold to reaffirm this notion). The idea that the said sodomy law may
encourage marriage not only goes against Boddie v. Connecticut (granting the right to not be

14. Grim 14
married) but is simply not implemented by Hobbs in this preceding. Instead, the state of Georgia
takes a more “tautological” stance (according to Tribe), in that they appear to outlaw sodomy not
because they want to discourage this behavior in order to encourage marriage but because they
feel sodomy is utterly wrong and immoral. Tribe used Stanley as an example of Georgia, once
again, trying to impose its own definition of morality on the private home, to which the Supreme
Court ruled that they (the state of Georgia) had exceeded its bounds.
Tribe did confess that if history was his only guide, he would surely be arguing a losing
case. Tribe explained that the framers of the Fourteenth Amendment could not have possibly
predicted how and to what degree this Amendment would be used. It is possible, even likely, that
many of the cases that have come before the Court would have been immediately struck down by
our forefathers simply because they lived in a different time. To strengthen his argument, Tribe
used Reed v. Reed (held that administrators of estates cannot be named in a way that
discriminates between sexes), Frontiero v. Richardson (affirmed that U.S. military could not
differentiate benefits based solely on gender), Stanton v. Stanton (struck down Utah's definitions
of adulthood, which claimed that females reached adulthood at eighteen and males at twenty-
one, on the grounds that it violated the Fourteenth Amendment’s Equal Protection Clause),
Mississippi University for Women v. Hogan (held that the exclusion of men from enrollment into
the Mississippi University for Women’s nursing school violated the Fourteenth Amendment’s
Equal Protection Clause), and even Loving v. Virginia (allowing interracial marriage), all cases
Tribe believed our founding fathers probably would have ruled against because of the world they
lived in. Yet, this confession only empowered Tribe’s argument by somewhat negating Georgia’s
use of tradition and heritage as a method to define proper and logical laws. Tribe was quoted as
saying, in reference to Loving, that “where also a majority of the people of Virginia believed that

15. Grim 15
interracial liaisons were inherently immoral and where for a long time a lot of people had
believed that, this Court did not think that the Constitution’s mission was to freeze that historical
vision into place” (oyez.org). Tribe moved on to claim that it is Justice Harlan in his Poe
dissenting opinion that “recognized the evolutionary character of the definition of those
intimacies that are protected” (Irons, 367).
Tribe shifted at one point to explain Hardwick’s argument that the regulation of sexual
conduct and actions in the privacy of one’s own home by a law that is this sweeping is subject, at
the very least, to an increased sense of scrutiny. Tribe also makes mention that just as in the case
of Carey and Zablocki v. Redhail, there is no severability clause present in this Georgia statute.
Thus, Tribe believed that the case before the Court is the Georgia using its political power to
criminalize without justification actions it deems immoral and to institute and enforce laws
solely based on the principle of carrying out and maintaining the majorities’ moral convictions.
Tribe was eventually asked by Justice White as to which cases he relies on. Tribe replied
that Stanley is heavily relied upon due to its nature of defining the right to privacy in the home
and its application of the First Amendment. He reaffirmed that despite what Hobbs states, the
First Amendment does have a bearing on this case in that in the state of Georgia, there is no right
to buy, sell, or show pornography in public. The only legal way to view pornography is in the
privacy of one’s home. Hence, Stanley emphasized the privacy that goes with the home. As
pertaining to intimacy issues, the respondents rely on Griswold and Eisenstadt (in order to prove
that Griswold cannot be limited to just married couples). Tribe persisted in his argument by
saying that he, along with the respondents, relies on the fundamental principle realized in the
concurring opinion in Kelly “that important intrusions upon liberty are not to be upheld on a form

16. Grim 16
of review so differential though it might be appropriate in regimented context such as the policy
or military” (oyez.org).
Prompted by Justice White, Tribe explained that the method most apt at declaring a
fundamental right can be found to parallel the methods being applied in such cases as Griswold
and Roe. In both cases, according to Tribe, the Court would look to “tradition in terms of the
protection of the place where an act occurs and of looking to a tradition in terms of recognizing
autonomous personal control over intimacy is an appropriate process to employ” (Irons, 368).
Tribe stated his and his respondents opinion being that “it seems to us that if the
protections of the Third and Fourth Amendments are not to be reduced to error and empty
formalisms, that they have to reflect an underlying principle, a principle not unlike that which
this Court recognized in decisions like Meyer and Pierce and more recently in Moore v. East
Cleveland” (Irons, 368). Tribe also emphasized the fact that he feels it is in reality, misleading to
state that what he and his respondents are supporting is a fundamental right to a certain type of
sexual conduct. Rather, Tribe stated that he is arguing that there is an essential right to restrict
government's regulation of intimate privacies associated with a private area such as the home.
Tribe moved on to claim that the principle they are in fact in support of, is the principle of
limited government. Tribe next, in part, summarized his stance by stating his quarrel with
government when it imposes the right to dictate upon its citizenry, how and in what manner they
should conduct their intimate lives.
When Tribe was asked if White’s opinion in Moore weakened his case, he responded that
it definitely hurts more than it helps. However, Tribe went on to clarify that even in White’s
opinion, there is room for hop, room for change. It was at this point that Tribe stated that part of
the Moore opinion that does aid him in his argument is one which pertains to private property.

17. Grim 17
Tribe asks, “What does it mean to say one's home is a private place if every detail of what one
does there can be regulated by the state because they think it is an irresponsible liaison. It seems
to us that the very meaning of home is denigrated if that can be done. It seems to us it is only a
principle of limited government that makes it important to affirm the Eleventh Circuit's decision
that heightened scrutiny is required in such a case” (oyez.org).
Tribe went on to claim that, according to his understanding, Georgia’s only reason for
having such a statue is because the action the law prohibits is “evil” (even though, at this time,
almost half of the states in the U.S. have decriminalized these anti-sodomy statutes). “It is in that
respect that even the form of review endorsed by Justice White's dissent in Moore which requires
some meaningful explanation of how this law would function to advance the public welfare, why
it wouldn't be counter-productive, why it wouldn't cause more contempt for law than respect for
families.” An explanation should be required, according to Tribe, yet Georgia is providing none.
Tribe continued by saying that if the Circuit Court’s decision is reversed, Georgia’s inclination
of not providing the utility or function of its laws will continue. “It is enough to say we passed it,
that means most of us thinks it is wrong and a lot of people have thought it was wrong for a long
time, therefore, ask us no further questions” (Irons, 368).
Tribe concluded his argument by summarizing that Georgia’s stated reason for the
institution of the anti-sodomy law was simply insufficient. Likewise, the argument that by
discouraging sodomy one in essence encourages marriage is equally weak. With regards to the
spreading of Sexually Transmitted Diseases (during this case the AIDs pandemic was in full
swing in the U.S.), “the American Public Health Association, at page 27 of the amicus brief,
[stated that they believe] this law and laws like it would be counter-productive to that end, but
you don’t even reach that issue until you have some kind of meaningful inquiry” (Irons, 368). If

18. Grim 18
the law was shown to be in place in order to protect public health that in of itself would provide
sufficient justification for the law’s existence. However, as it currently stood, the state of
Georgia provided no such type of justification and so, limited government it appears, made the
Eleventh Circuit Court’s decision utterly correct.
After Tribe’s oral argument, Hobbs was given the chance of rebuttal. Hobbs refuted
Tribe’s claim that the state of Georgia is acting as “big brother” by stating that instead the state is
simply adhering to “centuries-old” traditions and the “conventional” morality of its citizenry.
Hobbs agreed that the state cannot impede on the privacy of the home or regulate every intimate
action that may take place there. Hobbs went on to claim that the statute in question serves the
purpose not to discriminate against homosexuals but to maintain a moral soundness and decency
among its people and its society. Hobbs summarized that “the liberty that exists under our
Constitution is not unrestrained. It is ordered liberty, it is not licentiousness. If the Eleventh
Circuit’s decision is affirmed in this case, the State of Georgia and other states would be
impeded for making those distinctions between true liberty, ordered liberty, and licentiousness”
(Irons, 368). At the conclusion of these arguments, at 10:56 a.m., the case of Bowers v.
Hardwick was submitted before the U.S. Supreme Court (Irons, 368).
On June 30, 1986, the Burger Court ruled in a divided 5-4 decision in favor of Michael
Bowers. The Court held that the anti-sodomy law was valid as there remained no constitutionally
protected fundamental right to engage in the act of homosexual sodomy (Bronski, 2006). The
opinion was delivered by Justice Byron White in which Chief Justice Warren E. Burger and
Associate Justices Sandra Day O’Connor, William Rehnquist, and Lewis F. Powell joined.
White’s opinion stated, “We agree with the State that the Court of Appeals erred, and hence
reverse its judgment” (Barker, 777). White and the majority registered their disagreement with

19. Grim 19
the Court of Appeals while claiming that none of the rights announced in the cases applied
throughout Bowers by the Respondents contains any similarities to the claimed constitutional
right of homosexuals to engage in sodomy. White continued by stating that no connection was
ever made relating family, marriage, or procreation to homosexual conduct.
White stated that it was obvious to him and his fellow concurring Justices that neither of
these formulations presented in Palko v. Connecticut or Moore are applicable to the respondent’s
argument. White went on to explain that sodomy was a criminal law at common law and was
forbidden by the original thirteen colonies. White continued to state that until 1961, all fifty
States in the U.S. outlawed sodomy; today (1986) 24 states (including the District of Columbia)
continue to maintain such laws. It is this claim that leads into the most likely memorable quote to
come from White’s opinion, following his quick history lesson on U.S. sodomy laws. White
dictated, “Against this background, to claim that a right to engage in such conduct is “deeply
rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at
best, facetious” (Baker, 777).
White went on to claim that such interpretations of the First, Fourth, and Fourteenth
Amendments as presented by Hardwick are possibly hazardous. White explained that even in
Stanley, the Court made explicit mention that the ruling offered no protection “for the possession
in the home of drugs, firearms, or stolen goods. And if the respondent’s submission is limited to
the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to
limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery,
incest, and other sexual crimes even though they are committed in the home” (Baker, 778). This,
White states, is a road in which he and his concurring Justices do not wish to proceed down.
Since Hardwick’s argument did not specify as to where the line should be draw for limiting an

20. Grim 20
individual’s right to privacy in their home, White felt it could potential open the door to new
problems. Chief Justice Burger parallels White’s logic in his concurrence, writing that he can
find nothing in the Constitution that could potential deprive the State the power to have and
enforce such a statute as the Georgia one being challenged here. Burger also mimics White’s
claim that laws against sodomy have “ancient roots,” while the act of sodomy itself has been
condemned for centuries (citing Roman law holding sodomy as a capital crime).
In Justice Powell’s concurrence to the majority decision, he stated that while the Due
Process Clause of the Fourteenth Amendment granted no substantive right to the respondent, the
fact that the Georgia statute’s penalty carries a maximum jail sentence of twenty years for
committing sodomy could potentially lead to a serious Eighth Amendment issue. This
concurrence by Powell coincides with a popularly held belief that one of the factors possibly to
blame for the U.S. Supreme Court not affirming the Eleventh Circuit Court’s holding was the
prosecutor’s decision to not prosecute the case before a grand jury. Without this trial, Hardwick
was not given the “opportunity” to be punished. Had Hardwick received the maximum penalty
for his conduct (twenty years in prison), the Court likely would have ruled in favor of Hardwick
on the grounds that the statute violated his right against “cruel and unusual punishment” granted
by Eighth Amendment.
Dissenting from the majority decision were Senior Associate Justice John Paul Stevens
III and Associate Justices Harry Blackmun, William J. Brennan, Jr., and Thurgood Marshall.
Both Stevens and Blackmun wrote dissenting opinions in which Marshall and Brennan joined.
Blackmun in his dissent wrote, “This case is no more about "a fundamental right to engage in
homosexual sodomy,’ as the Court purports to declare, than Stanley v. Georgia (1969) was about
a fundamental right to watch obscene movies, or Katz v. United States (1967), was about a

21. Grim 21
fundamental right to place interstate bets from a telephone booth. Rather, this case is about ‘the
most comprehensive of rights and the right most valued by civilized men,’ namely, "the right to
be let alone.’ Olmstead v. United States (1928)” (Barker, 778). Blackmun continued his fuming
dissent by accusing the majority of having an “almost obsessive focus on homosexual activity.”
Justice Blackmun went on to suggest that "only the most willful blindness could obscure the fact
that sexual intimacy is 'a sensitive, key relationship of human existence, central to family life,
community welfare, and the development of human personality’” (Paris v. Adult Theatre v.
Slaton) (Barker, 780). Due to the diversity of the U.S., Blackmun explains in his opinion, there
can be many “right” ways in which to conduct a relationship. Blackmun, enraged by the
majority’s interpretation and disparity of Stanley in the Bowers holding, calling their explanation
“entirely unconvincing.” It is “Blackmun’s 1986 dissent in Bowers v. Hardwick challenging
Georgia’s sodomy laws [that] could [be said to have] foreshadowed the Court’s future decisions
on the issues of privacy and sexual orientation” (Mallia, 1994).
In Senior Associate Justice Stevens’ dissent, he writes that the state of Georgia is
incapable of prohibiting sodomy within “the sacred precincts of marital bedrooms” via Griswold.
Thus, if they law cannot be equally administered, it stands in conflict with the Fourteenth
Amendment. Stevens also protests his disdain over the fact that Georgia seems interested in only
maintaining the statute for face value as both the local prosecuting attorney and the history of the
statute itself reveals little desire for its enforcement. Thus, in Stevens’ opinion, “both the Georgia
statute and the Georgia prosecutor completely fail to provide the Court with any support for the
conclusion that homosexual sodomy, simpliciter, is considered unacceptable conduct in that
State, and that the burden of justifying a selective application of the generally applicable law has
been met” (justia.com). Stevens concludes with his belief that the respondent, at this early stage

22. Grim 22
of litigation, still has nonetheless alleged a sufficient constitutional claim capable of
withstanding this motion to dismiss.
Tensions ran high to say the least during this case. Yet, with such a close decision (5-4),
one must ask, who truly was the deciding vote? It is obvious to say that with a fifth vote,
Blackmun could likely have been the one writing the majority opinion instead of White. If
Blackmun had been the one writing it, one could be assured that the effect of such a ruling would
have overturned anti-sodomy laws in 24 states and the District of Columbia. However, this is not
what occurred. Instead, Justice Lewis F. Powell within several days of the conference, having
originally promised his vote to Blackmun, switched sides and joined White; thus, granting him
the majority. When asked why the change of heart, Powell responded that “the case may not be
as significant as press reports suggest, because such laws are moribund and rarely enforced.” The
problem is, the minute the U.S. Supreme decided to preside over Bowers, it gave the case
significance. Any case that comes before the Supreme Court, and more importantly presided
over, is by nature significant and usually controversial (Dolman, 1986). Years later, Powell
would express his regret in making such a decision. Nevertheless, despite Powell’s current
sentiments, the decision had been made and it would not be until twelve years later that the
decision would begin to fall apart (Fajer, 209). In Powell v. State, that same Georgia anti-sodomy
statute upheld in Bowers would meet its end at the hands of the Georgia Supreme Court in 1998.
The Bowers decision, in many ways, acted as the conservatives’ applying the brakes to
the “handing out of personal privacy rights” by a “liberal” Supreme Court (Perlstein, 2003).
Many homosexuals and gay rights activists saw the decision as nourishing “the seeds of
intolerance” (Swanson, 1986). Even to this day the Bowers decision lives in infamy and is seen
by many as a stain on the Supreme Court’s reputation (Thomas, 2003). Bill Gripp, an Atlanta

23. Grim 23
Gay Center board member, referred to the decision as being “ridiculously inappropriate” and
“very homophobic and uniformed…very selectively applied to gay men.” Still Georgia officers
claim the law will remain more of a supplementary punishment (if an officer enters the home
with a warrant for drug paraphernalia and finds the accused in the act of sodomy, that person will
be charged) and will be enforced no more than it has been in the past (Galloway, 1986).
Immediately following the Bowers holding, Hardwick became a rallying symbol of gay
activism and activists quickly began a petition asking the Supreme Court to rehear his case. The
petition stated that the Court had gone beyond the facts when it ruled that consenting adults have
no fundamental right to private homosexual behavior. The Court’s decision also sparked an
appeals movement that contested over 25 state sodomy laws (Turner, 1986).Yet, it would not be
until seventeen years later in 2003 that the U.S. Supreme Court would completely overrule the
Bowers decision in the landmark case, Lawrence v. Texas.
The decision that would come to reverse Bowers arrived when “two Texas men [were]
arrested and fined $200 in 1998 for having consensual sex in one of their homes. The men
appealed their convictions on the grounds that Texas’s sodomy law, in addition to violating
personal privacy, violates the Constitution’s equal protection clause by prohibiting anal and oral
intercourse between homosexuals while permitting the same sexual conduct for straight people”
(Gilgoff, 2002). In Lawrence, Justice Kennedy’s majority held that homosexual intercourse was
not unconstitutional under the Fourteenth Amendment’s equal protection clause (Greenhouse,
2007). Justice Kennedy, in this landmark ruling, stated that “Bowers was not correct when it was
decided, and it is not correct today” (Greenhouse, 2007). “In overruling the earlier Bowers v.
Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available
by the Court’s earlier reproductive rights cases, but instead announces a kind of privatized liberty

24. Grim 24
right that affords gay and lesbian couples the right to intimacy in the bedroom” (Franke, 2008).
In this single ruling, gay rights acquired its most powerful decision to date and in many ways
marked the final conclusion of the Bowers decision. Lawrence saw one thing in particular that
Bowers did not. In Tribe’s argument, he makes mention of tautological invocation in describing
the reason such a sodomy law even exists. Yet, in the case of Tribe, his argument appeared to
have fallen on deaf ears. In Lawrence, however, the Justices seemed to catch onto this “hate for
the sake of hating” rather quickly. Justice Stephen Breyer is quoted as asking the petitioner’s
lawyer, “What is the justification for this statute other than, ‘I do not like thee Dr. Fell, the
reason why, I cannot tell” (Greenburg, 2003)? It is the landmark ruling in Lawrence v. Texas that
today remains a staple to gay rights and has set the precedence for all future cases involving
homosexuality and, as of recently, even incest.
The Court’s 6-3 holding in Lawrence, which effectively invalidated all remaining
sodomy laws in Texas, Georgia, and eleven other states, infuriated many. Justice Antonin Scalia
himself wrote in his dissent that the majority opinion “effectively decrees the end of all morals
legislation and threatens a massive disruption of the current social order” (Montgomery, 2003).
Judge Roy Moore, an ex-Alabama Supreme Court Chief Justice expelled from office for refusing
to remove a Ten Commandments monument he had placed in the Alabama Judicial Building,
wrote in The Washington Times a scathing article several years late in 2007 expressing his
disgust with the Court’s “hypocrisy.” Moore wrote, “In 2003, Justices Ginsburg and Breyer did
not find it difficult to invent a right to homosexual sodomy in Lawrence v. Texas – only 17 years
after the Supreme Court had ruled in Bowers v. Hardwick that there was no such right in the
Constitution. Casually disregarding precedent (stare decisis) four years ago and now hurling
charges of disrespecting precedent today is utter hypocrisy, especially against fellow justices

25. Grim 25
who want to correct errors of the past and return to constitutionally based decision-making”
(Moore, 2007). Hence, while the decision in Lawrence is heralded by many as being long
overdue and a giant leap for gay rights, many problems have nonetheless arisen from the Court’s
holding that eerily parallel Hobbs’ “Pandora’s Box” theory.
Besides the obvious conservative and religious-Right fall-out, cases involving incest have
begun to crop up using the Lawrence decision as a backbone. One such example includes “Paul
Lowe, an Ohio man convicted of incest for having sex with his 22-year-old stepdaughter.” Mr.
Lowe has “appealed his conviction to the Supreme Court, making Lawrence the basis of his
argument.” In Lawrence, the court had ruled that people “are entitled to respect for their private
lives’ and that under the 14th
Amendment, ‘the state cannot demean their existence or control
their destiny by making their private sexual conduct a crime’” (Jacoby, 2007). Thus, many
persons saw, and continue to see, this decision as a “slippery slope” to legalized incest. As Texas
Senator Rick Santorum once said, “If the Supreme Court says you have the right to consensual
sex within your home, then you have the right to bigamy, you have the right to polygamy, you
have the right to incest, you have the right to adultery. You have the right to anything” (Jacoby,
2007). When the issue of a higher probability of genetic defects is mentioned, supporters of
incest argue that other couples with known transferrable genetic disorders are allowed to have
intercourse without penalty. This brings forward a truly complicated balancing act between
declaring what is and what is not legally permissible in one’s own bedroom. Opponents of incest
may find comfort in that fact that in another case involving said incest, a sexually involved
brother and a sister (Allen and Patricia Muth of Wisconsin), using the Lawrence decision as their
foundation, lost their appeal in the Seventh Circuit Court of Appeals. Yet, there always remains
the possibility that one of these incest cases will succeed…it is this reality that makes such a

26. Grim 26
decision as Lawrence controversial beyond that of gay rights. The Supreme Court has overruled
itself many times in the past (Bowers, for example). Where at one point, homosexuality was
deemed completely immoral and profoundly unlikely to ever become legalized, it is now not
only allowed but protected. Thus, it would not be impossible for the Court to one day even allow
incest to be legalized; at least…that is what proponents of Bowers would have you believe.
Yet, despite what critics might think, the Court does try to remain as uncontroversial as
possible (though the job description itself makes that quite impossible). As O’Brien states,
“Sometimes the Court takes notice of pertinent state laws as an indirect measure of public
opinion and ‘traditional societal values’ (which could explain the Court’s original hesitation in
Bowers)…in Lawrence v. Texas (2003), Justice Kennedy noted the changes in state laws
criminalizing homosexual sodomy after the ruling in Bowers v. Hardwick (1986), when
overruling that earlier decision. By contrast, Justice Scalia, concurring in Webster and dissenting
in Casey, countered that the majority’s ruling in those abortion cases and Roe v. Wade had stirred
a national controversy that turned public opinion against the Court” (O’Brien, 336-337). Much of
the court’s influence and “prestige” comes directly from the public and its view of the Justices. If
the masses respect the Justices than the Supreme Court retains its reputation and respect. The
Supreme Court preserves its constituents’ faith by passing down judgments that are based on
their interpretations of the law and not their own personal agendas. Justices must always keep the
public’s opinion in mind, yet at the same time cannot be subject to its every ever-changing whim.
As O’Brien so eloquently explained, “complete indifference to public opinion would be the
height of judicial arrogance” (O’Brien, 337). For example, in Baker v. Carr, Justice Felix
Frankfurter feared the entire country may turn against the Court. It is this reason that could
possibly explain the U.S. Supreme Court’s decision in Bowers.

27. Grim 27
Thus, this brings forth the question originally posed by Justice Rehnquist to Laurence
Tribe with regards to the social evolution taking place in the U.S. at the time of Bowers. What
did truly change the Court’s mind from 1986? Was it simply because more liberal Justices were
put in place? Or did America, within a seventeen year span become more tolerant towards
homosexuals? Jay Michaelson of the Duke Law Review seems to believe so. Michaelson writes
in 2000 that in a mere fourteen years since the 1986 Bowers ruling, much has changed. The
Court has become more liberal, a new “gay rights case” has come before the Court (Romer v.
Evans), and corporations have begun to institute benefits for gays and lesbians alike. Michaelson
goes on to state that even television has become more openly gay, from homosexual Hollywood
celebrities to politicians (Michaelson, 2000). Maybe the real answer more closely parallels Linda
Greenhouse from The New York Times, as she explains, “The road from Bowers v. Hardwick,
the 1986 decision that dismissed a claim of gay rights as ‘at best, facetious,’ to Lawrence v.
Texas, which 17 years later located the privacy rights of gay men and lesbians at the heart of the
constitutional due process, was paved, I have no doubt, by the justices’ experience of knowing
gay men and women in their personal and professional lives” (Greenhouse, 2008). In either case,
it remains possible that in 1986, the Court simply might have felt America was not yet ready for
such a shift in traditional morals. This set of events can also be further explained seventeen years
later with the reversal of Bowers through the Lawrence decision. While the Court may have been
more liberal in 2003, the fact remains that the entire country in general during that time period
were more tolerant than they ever were in the 1980s or 90s. One thing is certain; the importance
of Bowers as both a controversial decision and a springboard for change is immeasurable.

28. Grim 28
Works Cited
Allen, Frederick. "5 JUSTICES SAY: 'IT'S NOT OUR JOB!'" The Atlanta Journal and The
Atlanta Constitution 6 July 1986: C1.
Barker, Lucius Jefferson, Michael W. Combs, and Kevin L. Lyles. Civil Liberties and the
Constitution : Cases and Commentaries. Upper Saddle River: Prentice Hall, 1999.
Basu, Moni. "Gay sex bans overturned Landmark ruling fuels hopes of equal treatment." The
Atlanta Journal and The Atlanta Constitution 27 June 2003: A1.
Bernstein, Bobbi. "Power, Prejudice, and the Right to Speak: Litigating "Outness" under the
Equal Protection Clause." Stanford Law Review 47 (1995): 269-93.
Bower, Lisa C. "Queer Acts and the Politics of "Direct Address": Rethinking Law, Culture, and
Community." Law & Society Review 28 (1994): 1009-033.
"Bowers v. Hardwick, 478 U.S. 186 (1986)." 30 June 1986. 10 Nov. 2008
<http://supreme.justia.com/us/478/186/case.html>.
"Bowers v. Hardwick." OYEZ. 2008. U.S. Supreme Court Media. 10 Nov. 2008
<http://www.oyez.org/cases/1980-1989/1985/1985_85_140/>.
Bronski, Michael. "Abortion Rights and Gay Rights." Z Magazine 1 May 2006.
Burgess, Susan. "Queer (Theory) Eye for the Straight (Legal) Guy: Lawrence v. Texas'
Makeover of Bowers v. Hardwick." Political Research Quarterly 59 (1996): 401-14.
"The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification."
Harvard Law Review 98 (1984): 1285-309.
De Stefano, George. "The Pleasure Principle: Sex, Backlash, and the Struggle for Gay Freedom."
The Nation 2 Nov. 1998: 25.

29. Grim 29
D'Emilio, John, William B. Turner, and Urvashi Vaid, eds. Creating Change : Public Policy,
Civil Rights and Sexuality. New York: St. Martin's P, 2000.
Dickerson, Jeff. "Didn't like sodomy ruling? Blame Mr. Prosecutor." The Atlanta Journal and
The Atlanta Constitution 16 July 1986: A12.
Dolman, Joe. "Powell nearsighted on sodomy ruling." The Atlanta Journal and The Atlanta
Constitution 14 Aug. 1986: A28.
Eskridge, William N. Dishonorable Passions : Sodomy Laws in America, 1861-2003. New York:
Viking Adult, 2008.
Fajer, Marc A. "Bowers v. Hardwick, Romer v. Evans, and the Meaning of Anti-Discrimination
Legislation." National Journal of Sexual Orientation Law 2 (1996): 208-15.
Franke, Katherine M. "The Domesticated Liberty of Lawrence v. Texas." Columbia Law Review
108 (2008).
Galloway, Jim. "High court upholds state sodomy law Gay activist views ruling as 'homophobic'
set-back." The Atlanta Journal and The Atlanta Constitution 1 July 1986: A1.
Garner, Bryan A., and Henry Campbell Black. Black's Law Pocket Dictionary. 3rd ed. Belmont:
Thomson West, 2006.
Geewax, Marilyn. "Time to undo sodomy law mistake." The Atlanta Journal and The Atlanta
Constitution 29 Oct. 1990: A10.
Gilgoff, Dan. "Not just about sex: The Supreme Court agrees to hear a case that could be a major
turing point for gay rights." U.S. News & World Report 16 Dec. 2002.
Glenn, Richard A. The Right to Privacy : Rights and Liberties under the Law. Ed. Donald Grier
Stephenson. Danbury: ABC-CLIO, Incorporated, 2003.
Goldberg, Jonathan, ed. Queering the Renaissance. New York: Duke UP, 1993.

30. Grim 30
Goldstein, Anne B. "History, Homosexuality, and Political Values: Searching for the Hidden
Determinants of Bowers v. Hardwick." The Yale Law Journal 97 (1988): 1073-103.
Greenburg, Jan C. "Supreme Court revisits sodomy issue." Chicago Tribune 26 Mar. 2003: 3A.
GreenHouse, Linda. "Adjudging a Moral Harm To Women From Abortions." The New York
Times 20 Apr. 2007: 18.
GreenHouse, Linda. "Precedents Begin Falling for Roberts Court." The New York Times 21
June 2007: 21.
GreenHouse, Linda. "2,691 Decisions." The New York Times 13 July 2008: 1.
Hager, Philip. "Court to Rule on Legality of Private, Consentual Homosexual Acts." Los
Angeles Times 1 Apr. 1986: 7.
Hager, Philip. "Court urged to extend privacy rights to include adult homosexual acts." St.
Petersburg Times 1 Apr. 1986: 5A.
Halley, Janet E. "Reasoning about Sodomy: Act and Identity in and after Bowers v. Hardwick."
Virginia Law Review 79 (1993): 1721-780.
Hertzberg, Hendrik. "Unnatural Law." The New Yorker 16 Dec. 2002.
"Impossible to Define?" The Economist 27 May 1995: A27.
Irons, Peter, and Stephanie Guitton, eds. May It Please the Court : The Most Significant Oral
Arguments Made Before the Supreme Court Since 1955. New York: New P, The, 2007.
Jacoby, Jeff. "Lawful incest may be on its way." The Boston Globe 2 May 2007: A11.
Kamen, Al. "High Court to Review Rights of State To Regulate Adults' Sexual Activities." The
Washington Post 5 Nov. 1985: A5.
Lacayo, Richard. "Where The Right Went Wrong." Time 28 Dec. 1998: 1-3.
Mallia, Joseph. "Blackmun 'significant, no giant'" Boston Herald 7 Apr. 1994: 002.

31. Grim 31
Mantius, Peter. "Sodomy law faces new challenge Privacy rights of individual will be argued."
The Atlanta Journal and The Atlanta Constitution 9 Oct. 1995: B6.
Michaelson, Jay. "On Listening to the Kulturkampf, or, How America Overruled Bowers v.
Hardwick, Even Though Romer v. Evans Didn't." Duke Law Journal 49 (2000): 1559-
618.
Montgomery, Dave. "Supreme Court Strikes Down State Sodomy Laws." Fort Worth Star-
Telegram 27 June 2003: 16A.
Moore, Roy. "Bad judicial precedent; When courts follow false doctrine." The Washington
Times 14 Aug. 2007: A17.
O'Brien, David M. Storm Center : The Supreme Court in American Politics. Boston: W. W.
Norton & Company, Incorporated, 2008.
Perlstein, Rick. "Moment of Decision." University of Chicago Magazine Aug. 2003.
Pilon, Roger. The Declaration of Independence and the Constitution of the United States of
America. Annapolis: Cato Institute, 2000.
Self, Janet. "Bowers v. Hardwick: A Study of Aggression." Human Rights Quarterly 10 (1988):
395-432.
Stoddard, Thomas B. "Bowers v. Hardwick: Precedent by Personal Predilection." The University
of Chicago Law Review 54 (1987): 648-56.
Swanson, Richard. "Seeds of intolerance nourished by court's sodomy ruling." The Atlanta
Journal and The Atlanta Constitution 16 July 1986: A15.
Thomas, Evan. "The War Over Gay Marriage: In A Landmark Decision, The Supreme Court
Affirms Gay Privacy And Opens The Way To A Revolution In Family Life." Newsweek
7 July 2003.

32. Grim 32
Thomas, Kendall. "The Eclipse of Reason: A Rhetorical Reading of Bowers v. Hardwick."
Virginia Law Review 79 (1993): 1805-832.
Thompson, Tracy. "Sodomy law challenge goes to U.S. Supreme Court." The Atlanta Journal
and The Atlanta Constitution 16 Mar. 1986: B1.
Toobin, Jeffrey. "Swing Shift." The New Yorker 12 Sept. 2005.
Turner, Renee D. "Man continuing bid to challenge state sodomy law." The Atlanta Journal and
The Atlanta Constitution 8 Sept. 1986: A7.
Washington (AP). "Court told states may outlaw sodomy." Pittsburgh Post-Gazette 1 Apr. 1986:
1+.
"What's Wrong with 'Rights'" Harper's Magazine June 1996: 15.
Woolner, Ann. "High Court will hear challenge to Georgia sodomy law." The Atlanta Journal
and The Atlanta Constitution 4 Nov. 1985: E1.
Woolner, Ann. "Sodomy law violates privacy, court rules." The Atlanta Journal and The Atlanta
Constitution 22 May 1985: A13.
Woolner, Ann. "U.S. court challenges Ga. sodomy law." The Atlanta Journal and The Atlanta
Constitution 22 May 1985: B3.