The Grouchy Historian_An Old-Time Lefty Defends Our Constitution Against Right-Wing Hypocrites and Nutjobs by Ed Asner

Author:Ed Asner [Asner, Ed]
Language: eng
Format: epub
Amazon: B06ZXWGT2Z
Publisher: Simon & Schuster
Published: 2017-10-10T00:00:00+00:00

Bowers v. Hardwick (1986)

In August 1982, an Atlanta police officer named Keith Torick cited one Michael Hardwick for drinking in public. When Hardwick missed his court date because of a clerical error, Torick—tough cop that he was—obtained a warrant for Hardwick’s arrest. In the meantime, unknown to Torick, Hardwick had paid his $50 fine.

Three weeks later, Torick showed up at Hardwick’s apartment with a warrant for his arrest, even though that warrant was no longer valid. Hardwick’s roommate asked Torick in and when asked where Hardwick was, the roommate pointed to a back bedroom. When Torick approached the open bedroom door, he saw Hardwick and a second man engaging in mutually consensual oral sex.

Hardwick,II naturally pissed at the intrusion, threatened to have Torick fired. In retaliation for Hardwick’s “attitude problem,” Torick arrested both men for violating Georgia’s sodomy law, which carried a sentence from one to twenty years.

At the time, Georgia defined sodomy as “the carnal knowledge and connection against the order of nature by a man with a man or in the same unnatural manner with a man and a woman.” In other words, Georgia’s sodomy law included the prohibition of oral sex between a married couple. So, if my wife and I had happened to stay overnight in Atlanta in 1982—and I got lucky—both of us could have ended up in the slammer for twenty years.

Anyway, after Hardwick’s arrest, the local prosecutor, believing the law should not apply to consensual sex, dismissed the charges.

But Hardwick, looking to challenge Georgia’s sodomy laws—with the help of the ACLU—brought a suit against Georgia’s Attorney General, Michael Bowers. When the Court of Appeals dismissed the case on the grounds that Hardwick’s constitutional rights had been violated, the State of Georgia appealed and the case went to the Supreme Court.

In a 5–4 ruling, the Supreme Court upheld Georgia’s sodomy law. Writing the Majority opinion, Justice Byron White framed the legal question this way: Does the Constitution confer “a fundamental right to engage in homosexual sodomy?”

Now, where exactly did Justice White expect to find proof that the Framers endorsed homosexual sodomy? In Madison’s notes on the Convention? In The Federalist? In the debates on Ratification? In the Constitution itself?

Or maybe in some anti-Federalist pamphletIII demanding a clause be included in the Bill of Rights in favor of “oral sex between consenting males”?

It takes no Constitutional scholar or Supreme Court Justice to figure out that the Framers were not interested in sex, at least as far as the Constitution was concerned. Simply put: there is no “sex”—one way or the other—in the Constitution. The Constitution is as sexless as Donald Trump’s marriage.

But by making the case about homosexual behavior, Justice White had predetermined the result.

The answer would have been much different had the question been “What business was it of the State of Georgia to invade the privacy of one of its citizens without probable cause?”

On this issue of “sexual” privacy, the Court had two major precedents it could have considered.

The first was Griswold v.

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