First published January 15, 2003, in the Chicago Free Press.
THE SUPREME COURT indicated late last year that it would hear the case of "Lawrence and Garner v Texas" (hereafter "Lawrence"), the appeal by two Texas men arrested, briefly jailed and fined for violating a Texas law forbidding homosexual, but not heterosexual, sodomy.
In granting the hearing, the court seemed to be signaling that it was willing to reconsider its widely deplored 1986 "Bowers v Hardwick" decision upholding Georgia's more comprehensive sodomy law. Had the court wished to let Hardwick stand, it would simply have refused to hear Lawrence and Garner's appeal.
Since it takes votes from at least four justices to grant a hearing, that probably means at least four liberal justices (perhaps Stevens, Souter, Ginsburg, Breyer) think Hardwick was wrongly decided and are reasonably confident they can pick up one or more centrist votes (Kennedy or O'Connor) to overturn it.
A less optimistic view: The justices are well aware that two, possibly three of the oldest justices--including liberal John Paul Stevens and centrist Sandra Day O'Connor--may resign during the Bush presidency and are likely to be replaced by fairly conservative judges. So the liberals may feel that even if their chances of overturning Hardwick are far from certain, this term will be the last chance for many years.
So, will the court overturn Hardwick? The court can do almost anything the majority has a will to do and find ways to interpret precedents to support the decision. So the question might be: Does the court have a will to overturn Hardwick? But that may be the wrong question. The right question may be: Does a majority have a will to uphold Hardwick? It may not.
The Hardwick decision attracts little support. It has been vigorously criticized by many conservative and libertarian as well as liberal legal theorists. Harvard law professor Charles Fried, solicitor general during part of the Reagan administration (1985-89) wrote of Justice White's "stunningly harsh and dismissive opinion."
University of Chicago libertarian law professor (and Chief Judge of the 7th Circuit Court of Appeals) Richard Posner wrote that there was "a gratuitousness, an egregiousness, a cruelty, and a meanness" about the Georgia statute itself and argued its unconstitutionality.
And it is well-known that Justice Powell himself, who first voted to overturn Georgia's sodomy law then changed his mind and voted to uphold it, four years later admitted publicly, "I think I probably made a mistake in that one."
The Court hates to reverse earlier decisions, but it is fairly willing to change its mind. Its preferred method is to make some distinction between the older case and the newer one. With Lawrence the materials are available. Hardwick was argued on sexual privacy grounds. Since the Texas law applies only to gays, Lawrence can and will be argued largely on equal protection grounds: Texas denies gays as a class equal treatment under the law.
But more than that, the nation has changed since Hardwick. In 2003 we are now exactly as far beyond Hardwick as Hardwick was beyond Stonewall. Since 1986 the nation's understanding and acceptance of gays--and gay relationships--has greatly increased.
By 2003, far more gays and lesbians are openly gay--two, three, even four times as many as in 1986--and believe it is their moral right to be so. As a result, hardly any reasonably alert person can say, as the elderly Justice Powell claimed in 1986, that they have never known a homosexual. (Powell had had more than a half-dozen gay clerks but none was open with Powell.)
Nor are members of the court immune to a growing understanding and acceptance of gays. Greater exposure to gays may not force the justices to overturn Hardwick but it certainly can dilute the sort of ignorance and hostility that underlay White's decision and Burger's snide concurring opinion. And It may prompt justices to look harder for ways to overturn Hardwick.
Nor, of course, can the justices afford to be completely insensitive to shifts in public opinion if they are to retain respect for the Court and its decisions.
In 2003, the great majority of U.S. adults think sodomy laws should be abolished. While White's decision could note with satisfaction that sodomy laws were part of the American tradition and 24 states retained them in 1986, by 2003, only 13 states have sodomy laws. So sodomy laws are a rapidly waning part of the American tradition.
It is not without significance that in 1986 fears about AIDS had boosted support for sodomy laws to its highest point since the mid-1970s. But as AIDS became better understood and treatments became available, support for sodomy laws plummeted. In 1986, 53 percent of college freshmen favored sodomy laws, but by 2001 support fell to less than one-fourth (24.9).
Hardwick was widely viewed unfavorably in 1986. If the court rules similarly in 2003, the hostile reaction will be far more intense, widespread and sustained. It is hard to believe the Court would issue a decision that would find favor only among droolers.