Bowers V. Hardwick - Background

Background

In August 1982, an Atlanta Police Department officer entered the bedroom of Michael Hardwick to serve a summons for throwing out a beer bottle which Hardwick had thrown in a trash can located directly outside of the gay bar in which he worked; the specific citation was for public drinking. Police Officer Torick had processed the ticket and had marked out the court date of Tuesday and wrote in Wednesday. When Hardwick failed to arrive for his Tuesday court date, Torick issued an arrest warrant for Hardwick. The officer then proceeded to Hardwick's apartment to serve the warrant, but he was not home.

When Hardwick arrived home and realized that the officer had been there, he immediately went to the courthouse and paid the ticket. The clerk notified Hardwick that it should have been impossible for Torick to be at his apartment that day because it actually takes 48 hours to process a warrant. Several weeks went by and Officer Torick came to Hardwick's apartment again to serve the (then-recalled) arrest warrant. Hardwick had an overnight guest who was sleeping off a hangover on his couch. Accounts differ whether he opened the door to the officer and allowed him into the apartment or if the front door was already open. The guest told Torick that he didn't know if Hardwick was home so the officer began searching the house. He found the door to Hardwick's bedroom door slightly ajar and then entered the room where Hardwick and a male companion were engaged in mutual, consensual oral sex.

He placed both men under arrest for sodomy, which was defined in Georgia law to include both oral sex and anal sex between members of the same or opposite sex. The local district attorney elected not to present the charge to the grand jury, which would have been a prerequisite to any trial or punishment for the offense. Hardwick then sued Michael Bowers, the attorney general of Georgia, in federal court for a declaration that the state's sodomy law was invalid. He charged that as an active homosexual, he was liable to eventually be prosecuted for his activities.

The American Civil Liberties Union (ACLU) had been searching for a "perfect test case" to challenge anti-sodomy laws, and Hardwick's cause presented the one they were looking for. They approached Hardwick, who, after weighing the issues, agreed to be represented by ACLU attorneys. In the lower Federal Courts, Hardwick was represented by attorney Kathleen Wilde. The case was filed in the United States District Court for the Northern District of Georgia, where it was dismissed, with the Court ruling in favor of Attorney-General Bowers. Hardwick appealed, and the United States Court of Appeals for the Eleventh Circuit reversed the lower court, finding that the Georgia sodomy statute was indeed an infringement upon Hardwick's Constitutional rights. 760 F.2d 1202. The State of Georgia then appealed, and the Supreme Court of the United States granted certiorari on November 4, 1985, to review the case.

Hardwick was represented before the Supreme Court by Harvard Law School Professor Laurence Tribe. Michael Hobbs, assistant attorney general, argued the case for the State.