WI Flipped Bowers v Hardwick

What if Justice Powell had gone with his first instinct in voting in favor of the defendant in Bowers v Hardwick (1986)? How would the gay rights movement be affected? What else?
 
I wonder what Jonathan Edelstein's speculations on this might be; those should have some weight and be of real interest.

Subjectively, when I learned of the ruling as a young adult at the time, I was not merely saddened by the setback of general human rights--the grounds that the reactionary side argued were quite scary in themselves. IIRC, the Court ruled that the law does not have to be rational; that a policy invading the privacy of freely consenting adults that has no compelling logical argument for it can be based on mere precedent--because our ancestors bashed gays, we can (and indeed, should) carry on with that, for the sake of mere tradition. A mindset more squarely against the spirit of the American Revolution is hard to imagine.

By 1987 I was already deeply skeptical of the good will and still more the sound reasoning of the US conservative faction, but I would hope that the sheer unrelenting meanness of this mindset was brought home to people more "on the fence" as I was just a few years before, and that its stunning illogic and casual brutality was apparent not only to the converted such as myself but people who had more faith than I ever had in the soundness of the conservative position.

Therefore, while upholding the right of state and federal governments to target gay people for persecution was an ugly and painful outcome, I feel Bowers v Hardwick OTL was a double-edged sword; a short run victory for reaction but corrosive for their own position, undermining support and reducing it to a hard core of committed bigots, cutting them off from claims to be in line with the American way.

Had the ruling gone the other way, as it probably would have if Justice Powell had given it more than a half hour's thought, then it probably would be progressives who became more complacent whereas reactionaries might have been more energized and less discredited.

But I don't mean to suggest this one case was all that crucial--save of course in the matter of actual law and treatment of gay people. The mean-spirited illogic of reactionaries of the era was evident across the board; the fact that progressives had a hard, uphill struggle--and yet, when it came to a showdown in terms of real popularity at the polls, progressives stood a good chance because they had logic and the American way on their side--these playing conditions were endemic to the 1970s, 80s and have merely become more stark realities since.

In the bigger context then, I wish Powell had given the case the consideration it deserved, had reflected on what kind of society can give police a warrant to break into one's bedroom and ascertain which sexual practices one likes to use and toss one into prison if they see the wrong moves.

Dissenting Justice Thurgood Marshall called the case a "no-brainer," mentioning that dismissal of the charges and striking down the laws followed from the 1969 Stanley decision, also involving the state of Georgia--in that case, police with probable cause to search for gambling paraphernalia found none of that but instead some films which they viewed and found were pornographic--the Supreme Court eventually ruled that information kept private and not brought into public view was protected.

Powell, I gather from some reading I did long ago on the subject of Roe v. Wade (where he was also the swing vote) was a rather conventional man; in the abortion case he thought long and hard, and consulted with women on his staff for their perspective, and realized conventional views did not properly consider points of view generally kept suppressed. He might have done so here too; although he believed he didn't know any gay people he had one on his staff--but the fact he didn't know that speaks to the real issues at hand.

Namely, in my opinion, that the basic reason for anti-gay feelings and practices is that society finds it useful to have sticks lying around handy to beat any dissident with; accusations of homosexuality do not have to be true to be effective. Scapegoating serves a social function. But not one that a liberal society can openly acknowledge without undermining its own legitimacy! That his own gay staff member was closeted and discreet about it undermined his own interest in this case and gave Justice Powell a distorted view that the conservative faction in the case and generally sought to maintain.

Ironically, the law that the Court majority upheld here were not focused, in their wording anyway, on homosexual behavior--they applied to any persons performing the specified acts, even to a legally married, opposite sex, husband and wife couple in the privacy of their own bedroom. The fact that they were only selectively enforced against same-sex couples should have been a red flag of discrimination, and also the Justices should have noticed that all their arguments for continuing such discrimination had no application to the law at hand, which did not refer to the genders of the people involved. Instead of course the selective enforcement led men like Powell to consider them as applying to other people and to fail to put himself in their place, as he did empathize with women in Roe.

Well, as I say, my impression of the case's public impact was that it tended to rip the mask off. People determined to oppose gay rights doubtless got comfort, people committed to them would of course be outraged by any decision that upheld Georgia, but for the people in the middle somewhere, it was pretty raw that the Court would say we can and should discriminate "just because, so there!"

Had it been decided rationally, I think matters would have been much as OTL anyway, except for specific protections gay people would enjoy and deserved to. But the culture wars have many fronts.

I suppose with such a precedent in hand, the question of the rights of gay people to serve in the military (and police forces etc) would have been pressed harder and earlier--but compliance might have been long delayed anyway. After all if the Stanley precedent, of freedom in privacy, had governed Powell as well as Marshall, the military resistance could argue compellingly that military service is not private; public values prevail.

So the long process of the mindset of the public evolving over decades and generations would probably be necessary anyway.
 
I can't respond at length just now, but a couple of thoughts:

First, a decision in favor of Bowers would entrench a constitutional right to privacy rather than moving away from one. This could have implications all over the place: search and seizure, domestic spying, nearly any interaction between citizens and the government.

Second, I'm not optimistic that a pro-privacy decision would advance the cultural acceptance of LGBT rights. The opposite might actually be the case - just as pro-gay city ordinances in the 1970s sparked the Anita Bryant backlash, the judicial recognition of gay sexual autonomy in the 1980s could be politically premature. A 5-4 decision for Bowers could be another Roe v. Wade, at least until social attitudes caught up.
 
OTL Lawrence vs Texas helped inspire the Massachusetts Supreme Court's ruling that legalized same sex marriage. So we could speed up the legalization of gay marriage ITTL.
 
OTL Lawrence vs Texas helped inspire the Massachusetts Supreme Court's ruling that legalized same sex marriage. So we could speed up the legalization of gay marriage ITTL.

And, if it comes too early, get a mega-backlash that sets it far back-an FMA actually passing is a very distinct possibility with a much earlier decision, and a federal Supreme Court case that smacks down a right to SSM even more likely.
 
I am not sure about the "backlash" hypothesis. At the time of *Bowers* half the states had already repealed their sodomy laws, and in some other states such laws were very rarely enforced where both partners were adult. It would be nothing like *Roe*, which overturned the abortion laws in every state (even those which had liberalized their laws somewhat in recent years).
 
Let me understand this clearly.

Guy in Georgia is publicly intoxicated, and gets charged with that.

Then, he fails to appear in court.

Then, when officers go to serve (a warrant), a resident invits them into the apartment.

They then enter said apartment, catch the guy engaging in oral sex.

They then arrest both the guys.

Georgia State law doesn't differenciate by who is engaging in oral or anal sexual activity.

The state does not prosecute.

The dude then sues the state?

Is that correct?
 
Let me understand this clearly.

Guy in Georgia is publicly intoxicated, and gets charged with that.

Then, he fails to appear in court.

Then, when officers go to serve (a warrant), a resident invits them into the apartment.

They then enter said apartment, catch the guy engaging in oral sex.

They then arrest both the guys.

Georgia State law doesn't differenciate by who is engaging in oral or anal sexual activity.

The state does not prosecute.

The dude then sues the state?

Is that correct?

Yes. But to clarify the last sentence above, Hardwick didn't sue the state for money damages, he brought a declaratory judgment action asking the court to declare the state's sodomy law unconstitutional. Bowers was the state official with the authority to enforce that law (probably the Attorney General).
 
Yes. But to clarify the last sentence above, Hardwick didn't sue the state for money damages, he brought a declaratory judgment action asking the court to declare the state's sodomy law unconstitutional. Bowers was the state official with the authority to enforce that law (probably the Attorney General).
So, I would have to ask if such a thing could be used to get rif of the click-it-or-ticket, then. Especially for folks with heart trouble.
 
So, I would have to ask if such a thing could be used to get rif of the click-it-or-ticket, then. Especially for folks with heart trouble.

If you replicated Hardwick's slog through the judicial hierarchy and achieved a parallel outcome, you'd lose your case.:p

And if you were to muster an iron-clad argument on the grounds of civil liberty, you'd lose with a ruling that your rational arguments (hypothetical, I don't see your case at all) are irrelevant in face of a generation-long "tradition" of requiring seat belt use.:rolleyes:

Facing such a court you'd do better to argue that since neither the Bible nor Aristotle nor the Justinian Code nor medieval English common law ever mentions seat restraints, modern Americans shouldn't be required to use them either. That ought to impress the SCOTUS conservatives!:D
 
I guess I should explain, the cross chest portion of the seatbelt applies pressure over the heart. I have a circulatory system weakened by diabetes, and hart problems.

Hence, while the dude in georgia claims that he may be arrested for engaging in oral sex, that is not a danger to his life, especially when he was not charged, tried, convicted. nor jailed for said arrest.

OTOH, folks like me, if we follow the law, are put at additional risk of our lives in the event of an accident, due to the applied pressure to our hearts, and not just being ticketed, jailed and fined.

Sorry, I'm way off topic here, just outraged at the stuff people can get away with in lawsuits in this day and age. Look at this guys case and mine side by side for a second.

Georgia guy, drinking in public, ticketed.
Me, driving a car w/o seat belt, ticketed.

Both of use get 'failure to appeare warrants issued for our arrest.

Georgia guy, arrested for his FTA warrant & oral sex (but not charged tried and convicted and jailed for this, right), so just the FTA.
Me, arrested for my FTA.

Georgia guy, then gets a case that goes all the way up to the SCOTUS, and there is no addidtional risk of death for him to obey the challanged law.
Me, no one cares, and I (and everyone else that has this medical problems), are put at additional risk of our lives to obey the challanged law.

Whew.

Ok, now for some kinda on topic.

I also disagree with the Georgia law, as the STATE has no buisness making any such laws between consenting adults. So what might have happened had the SCOTUS ruled in his favor? All the sex with consenting adult partners laws go bye-bye much earlier.
 
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So, I would have to ask if such a thing could be used to get rif of the click-it-or-ticket, then. Especially for folks with heart trouble.

I should explain, the cross chest portion of the seatbelt applies pressure over the heart. I have a circulatory system weakened by diabetes, and hart problems.
Okay, say you win. Are you prepared to pay higher insurance premiums? Otherwise, just like helmetless riders, you're asking me to pick up the tab for you: my insurance rates are higher to cover the harm no helmet does, & hospital costs are higher to deal with the damage. (I'd say the no-helmet rider should wait til after the guy with the hangnail,:rolleyes: but that has other social policy implications I haven't figured out, not least, how do you deal with people who eat too much fat or sugar?:confused:)

So it's not one-sided.

That said, I think Bowers was stupidly decided.:confused::mad:
 
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