Thirty-five years ago, the Supreme Court criminalized homosexual sex. Could it happen again?

On August 3, 1982, Georgia Constable Keith Torick entered Michael Hardwick’s bedroom at 3 a.m. to serve a warrant for a $ 50 offense.

Throwing a bottle of beer in a trash can outside a gay bar, resulting in a public charge of alcohol consumption.

When Torick entered Hardwick’s room, Hardwick was having sex with another man. Torick arrested Hardwick and accused him of sodomy. Under Georgian law at the time, anyone engaging in non-reproductive sex could be sentenced to a prison term of up to 20 years. This included married heterosexual couples.

Not surprisingly, the law was rarely enforced.

Although the local district attorney chose not to pursue the case, Hardwick was persuaded by the ACLU to challenge the constitutionality of Georgia’s sodomy law. He was joined in the lawsuit by a heterosexual couple who claimed they wanted to have non-reproductive sex without fear of being arrested.

This case, Bowers v. Hardwick, was ruled 35 years ago this week, when the United States Supreme Court rendered one of the most infamous decisions in its history, essentially criminalizing the sexual practices of gays, lesbians and bisexuals.

A majority of judges decided not to consider the heterosexuals’ claim, apparently because the law had hardly ever been used against heterosexuals. Instead, they rephrased the question as to whether the Constitution protects same-sex sodomy. All of this pre-ordered the outcome.

The majority have determined that such conduct is not protected, despite the court’s case law on the protection of privacy. He then upheld the Georgian sodomy law on the grounds that the state legislature, as representatives of the Georgian people, had promulgated it.

The decision had far-reaching consequences for the gay community. It has been used to justify preventing homosexuals from serving in the military, adopting children, and having the right not to be fired because of their sexual orientation. As the late Justice Antonin Scalia noted, if you can criminalize the conduct of the entire class of homosexuals, states can certainly deny them non-discrimination and other protections.

It took 17 years to overthrow Bowers, when Judge Anthony Kennedy wrote the powerful opinion of Lawrence v. Texas, which specifically struck down all existing sodomy laws.

By ending the criminalization of homosexuals as a class, gays, lesbians and bisexuals were able to benefit from further legal protections, culminating in the right to marry. In the opinion, Kennedy made it clear that he viewed the Constitution as an evolving document that protects the dignity of various categories of people, including homosexuals.

With Kennedy’s retirement in 2018 and the death of Justice Ruth Bader Ginsburg last year, however, the Supreme Court has become much more conservative, especially with the addition of three Trump-appointed judges.

Given the current composition of the Court, would a decision similar to Bowers’s be possible?

While judges probably do not have a burning desire to criminalize private and consensual sexual behavior again, such an outcome is certainly possible.

The new conservative judges have expressed their loyalty to originalism and textualism. Many have openly rejected Kennedy’s view on a changing constitution. These judges are much more likely to view basic rights as only those rooted in the history and tradition of the nation, limiting new constitutional protections. Whether we return to Bowers or not, it seems clear that the current Supreme Court is unlikely to interpret the Constitution in a way that extends the rights of LGBTQ people. The other branches of government will have to take up this mantle.

Indeed, we recently got a glimpse of the Supreme Court’s right-wing tilt on LGBTQ rights in Fulton v. The city of Philadelphia. The court ruled that the city could not force Catholic social services to comply with local anti-discrimination law that would have required the placement of children in foster care with same-sex couples. While the majority supported religious freedom rights on the narrowest grounds, three of the judges expressed a desire to create a much broader interpretation of religious freedom, one that could subjugate protections against LGBTQ discrimination to claims. of religious freedom.

Only time will tell how far the Supreme Court will go to restrict the existing rights of LGBTQ people. In the meantime, Bowers should remind us how much there is to lose.

Larry Levine is a professor of law at the McGeorge School of Law at the University of the Pacific, where he teaches sexual orientation and gender identity law.

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