Why Advancing Gay Rights is All About Good Timing

Oral argument from the court.
Oct. 19 2012 5:56 PM

Why Advancing Gay Rights is All About Good Timing

Lessons for same-sex marriage from the Supreme Court’s terrible decision in Bowers v. Hardwick.

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Michael Hardwick may have the worst timing of anyone ever to come before the Supreme Court. In 1982, when Hardwick was 29 and tending bar at a gay pub in Georgia, he threw a beer bottle into an outdoor trash can and got cited by the police for public drinking. The cop wrote down the wrong day on his summons. When Hardwick didn’t show up in court as a result, an arrest warrant was issued. An officer later showed up at his apartment to serve the warrant, and a guest who’d been sleeping on the living room couch said he wasn’t sure if Hardwick was home. The cop decided to take a look and found Hardwick in his bedroom, having oral sex with a man. They were both arrested for sodomy.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

Edie Windsor
A federal appeals court struck down part of the Defense of Marriage Act this week, ruling in favor of Edie Windsor, pictured. How will the Supreme Court handle gay marriage?

Photo by Michael Loccisano/Getty Images.

That’s right—at the time, Georgia, defined as a crime oral or anal sex between two men, two women, or a man and a woman. Lots of states had such laws on the books, but none really enforced them against consenting adults who were acting in private. In fact, the county prosecutor dropped the charges against Hardwick. But the gay rights movement had been looking for a test case to challenge the constitutionality of the sodomy laws, and Hardwick agreed to sue. Good for him—except that this is where his timing went from bad to tragic. The Supreme Court wasn’t ready to treat Michael Hardwick fairly and as a result took one of its worst turns. That’s why Bowers v. Hardwick, the court’s now-repudiated decision, still holds lessons for today’s fight for gay marriage—a fight that moved a step closer to the Supreme Court this week, with the second federal appeals court ruling striking down part of the Defense of Marriage Act.

Hardwick’s case was dismissed without a trial by the district court, and then he actually won on appeal before the U.S. Court of Appeals for the 11th Circuit, where a panel of judges found that his fundamental right to privacy had been violated. The ruling had a fairly solid basis, rooted in the Supreme Court’s 1965 decision in Griswold v. Connecticut, which found that the state could not block married couples from using birth control in the privacy of their home. But when Hardwick’s case came to the Supreme Court, Justice Byron White didn’t frame it in terms of privacy or any other civil right. “The issue presented,” he wrote, “is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” The answer was no. White got there by saying that proscriptions against homosexual conduct had “ancient roots,” stressing that at the time 24 states and the District of Columbia continued to outlaw sodomy. Never mind that most of the laws, like Georgia’s, addressed heterosexual as well as homosexual acts. White lumped them all together. He also left out the fact that 19th-century prosecutions for sodomy, as far as the records show, were against adult men who’d preyed on children, not adults having consensual sex. White thus made it seem “facetious,” as he put it, 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.’ ”

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White famously got the fifth vote that made his opinion speak for the majority from Justice Lewis Powell, a moderate, who said at the time that he didn’t know any gay people. (He meant openly gay people, since it turned out he had a gay clerk.) Four years later, Powell famously told a group of law students that he regretted his decision. "I think I probably made a mistake in that one," he said.

But that’s the thing about timing and the Supreme Court—Hardwick’s challenge came too early and Justice Powell’s change of heart came too late. Bowers was a major blow to the gay rights movement—“a sign that the Court, and, by extension, society, did not accept homosexuals.” How could it be otherwise if their expression of love and sexuality was against the law? Criticism rained down on the court from legal scholars including Richard Posner and Michael Sandel. As Yale law professor and Slate contributor William Eskridge writes, “a decision that was premature in 1986 swiftly became an embarrassment.” Yet it took the court 17* years to correct its error, in Lawrence v. Texas, the 2003 ruling that overturned Bowers and finally struck down state sodomy prohibitions.

That’s the enduring cautionary tale of Bowers: When the Supreme Court makes a bad move, it doesn’t easily reverse course. The court has a tradition of generally standing by its past rulings (forgive the Latin, but that’s called stare decisis). And it’s hard for the justices to signal that they’re ready to abandon ship, which means future challengers stay spooked. Winning the day, especially if you are trying to expand the court’s conception of civil rights, can take longer once the court has thrown down its marker.

As Eskridge puts it, “If Bowers represented the dangers of premature constitutional decisionmaking, Lawrence represented the prudential virtue of finding the right case at the right time.” Most of the court’s membership turned over between 1986 and 2003. And American social attitudes toward gay relationships changed, happily, as well. The question now for the court, is how much gay marriage to tackle—and where.

The same-sex marriage cases the court could hear this term include the challenge to Proposition 8, the California referendum that stopped gay marriage after thousands of couples had already wed after a pro-gay marriage court ruling. That case directly raises whether the constitution’s guarantee of equal protection means states can’t bar people from getting married—that’s all the states, purple and red as well as blue.

Then there are cases like Windsor v. United States, the case the U.S. Court of Appeals for the 2nd Circuit ruled on this week. In Windsor, a woman who married her female partner in Canada in May 2007 and then was widowed is challenging the Defense of Marriage Act definition of marriage as a union between a man and a woman for purposes of federal law. DOMA forces Edie Windsor to pay more than $300,000 in taxes after her wife’s death, which she wouldn’t owe if she’d been married to a man. Because she lives in New York, which recognized her marriage, the Supreme Court could rule for Windsor—as the 2nd Circuit did—without mandating gay marriage throughout the land. Its ruling could strike down part of DOMA as it applies in the states that recognize gay marriage and stop there. That’s the prudent, Lawrence-like step. The lesson of Bowers v. Hardwick suggests that is the wise course for the court to take at this historical moment. Sometimes timing really is everything.

Correction, Oct. 20, 2012: The article originally said that there were 27 years between Bowers v. Hardwick and Lawrence v. Texas. There were 17. (Return to the original sentence.)