From Bowers to Lawrence: Seventeen Years to Correct a Mistake

The warrant was about a beer. In 1982 an Atlanta police officer ticketed a bartender named Michael Hardwick for drinking in public near the gay bar where he worked. A mix-up over the court date produced a warrant for his arrest, even though, by most accounts, Hardwick had already paid the fine. Weeks later the officer went to Hardwick's home to serve that warrant. A houseguest let him in, and the officer walked down the hall and opened a bedroom door to find Hardwick with another man. Both were arrested under Georgia's sodomy law, which carried a possible sentence of up to twenty years. The local prosecutor soon declined to pursue the charge. Hardwick sued anyway, to challenge the law itself, and four years later the Supreme Court used his case to say that the Constitution had nothing to say about what he had been doing in his own bedroom.

In short: In Bowers v. Hardwick (1986) the Supreme Court upheld Georgia's sodomy law 5-4, calling the claim of a right to homosexual sodomy "at best, facetious." In Lawrence v. Texas (2003) the Court overruled it, 6-3, holding that the liberty protected by the Due Process Clause covers private, consensual intimacy between adults. The seventeen years between them show how constitutional law changes: slowly, through people who refuse to accept a loss as final.

The ruling that said no

Bowers v. Hardwick was decided on June 30, 1986. Justice Byron White wrote the majority opinion. He framed the question narrowly: whether the Constitution confers a fundamental right on homosexuals to engage in sodomy. Framed that way, he said, the answer was obvious. Laws against sodomy had ancient roots, had been on the books in every state until 1961, and were still on the books in many. A right with that history could not be "deeply rooted in this Nation's history and tradition." He wrote that the claim of such a right was, at best, facetious.

Chief Justice Warren Burger added a concurrence invoking what he described as millennia of moral teaching against homosexual conduct. Justice Lewis Powell concurred too, writing that a long prison sentence for private consensual conduct might raise a separate Eighth Amendment problem, but that the question was not before the Court since Hardwick had not been tried.

Justice Harry Blackmun wrote the main dissent, joined by Justices William Brennan, Thurgood Marshall and John Paul Stevens. He argued that the majority had asked the wrong question. The case was not about a right to commit a particular act, he wrote; it was about the right to be let alone, which earlier cases on contraception and private life had protected. Justice Stevens wrote a separate dissent that would matter a great deal later, arguing that a state's view that a practice is immoral is not, by itself, a sufficient reason to make it a crime.

The vote that switched

There is a strange true story inside Bowers. After the justices first discussed the case in conference, Powell reportedly leaned toward the side that would strike the law down, then changed his mind. That made the difference between 5-4 one way and 5-4 the other.

Powell retired in 1987. In 1990, speaking to law students at New York University, he said that he thought he had probably made a mistake in Bowers. He also reportedly told one of his clerks, during the term the case was decided, that he had never met a homosexual; the clerk, who was gay, did not tell him. Whatever you make of that, it is a vivid illustration of how much depends on who is in the room and whom they know. A justice deciding the fate of millions of people's private lives believed he had never met any of them.

How Bowers was used

Bowers was not just a ruling about one Georgia statute. For seventeen years, it was a weapon.

If states could make gay people's intimate lives a crime, then the argument followed that the law could treat gay people as presumptive criminals in other areas. Courts cited Bowers when they upheld the denial of custody to gay parents, the exclusion of gay people from certain jobs, and other forms of discrimination. Few people were ever prosecuted for private consensual conduct, but the laws hung over people's lives anyway, a standing declaration by the state that they were outlaws.

Meanwhile, the political and legal ground shifted. State legislatures repealed sodomy laws one after another, and state courts in places including Kentucky, Tennessee, Montana and Georgia itself struck down their own states' laws under their state constitutions. Georgia's Supreme Court did so in 1998, in a case involving a heterosexual couple. By 2003 only about a dozen states still had such laws, and a handful of them applied only to same-sex couples.

At the federal level, the Supreme Court also began to move. In Romer v. Evans in 1996, it struck down a Colorado constitutional amendment, passed by voters, that barred any state or local protection against discrimination based on sexual orientation. Justice Anthony Kennedy wrote that the amendment seemed inexplicable by anything but animus toward the class it affected. Romer did not mention Bowers in the majority opinion, but Justice Antonin Scalia's dissent pointed out the tension: if a state could criminalize the conduct, how could it not disfavor the people who engaged in it? Scalia was asking the question in order to defend Colorado. Seven years later, the Court answered it the other way.

A Houston apartment, a false report

On the night of September 17, 1998, sheriff's deputies in Harris County, Texas, responded to a report of a man with a gun at an apartment in Houston. The report was false, made by an acquaintance with his own grievances. Inside, deputies found John Geddes Lawrence and Tyron Garner and arrested them under the Texas Homosexual Conduct law, which made it a crime for two people of the same sex to engage in certain sexual acts, but not for people of different sexes to do the same thing.

The men spent a night in jail. They pleaded no contest so that the case could be appealed, and each was fined. Lambda Legal took up their case. The legal history around the arrest has been contested: a later book by the law professor Dale Carpenter, based on interviews and records, concluded that the two men may not even have been having sex when the deputies arrived. That irony did not matter to the legal question, which was whether Texas could make it a crime at all.

Lawrence: the Court corrects itself

On June 26, 2003, the Court decided Lawrence v. Texas. Justice Kennedy wrote for five justices: himself and Justices Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Sandra Day O'Connor, who had joined the majority in Bowers, concurred in the result on equal protection grounds, because the Texas law applied only to same-sex couples.

Kennedy's opinion went straight at Bowers. The Bowers Court, he wrote, had failed to appreciate the extent of the liberty at stake by framing it as a claim to engage in certain conduct. The statutes at issue touch upon the most private human conduct, in the most private of places, the home. He took apart the historical claims as well, noting that early American laws against sodomy were not aimed specifically at same-sex couples and were rarely enforced against consenting adults in private. He relied on Stevens's Bowers dissent for the principle that the moral disapproval of a majority is not enough to justify a criminal law. And then he wrote the sentences that ended the matter: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

Scalia dissented, joined by Chief Justice William Rehnquist and Justice Clarence Thomas. He warned that the Court's reasoning would call into question state laws against same-sex marriage and many other morals laws, and he criticized the majority for overruling Bowers while insisting, in other contexts, on respect for precedent. Thomas wrote separately to say that he considered the Texas law "uncommonly silly" and would vote to repeal it if he were a legislator, but that he found no general right of privacy in the Constitution.

Why it took seventeen years

The obvious answer is that the justices changed, and that is partly true. But the more useful answer, for anyone trying to change a law today, is that the ground under the Court changed first.

In those seventeen years, states repealed or struck down their laws, one at a time, so that by 2003 Texas was an outlier rather than the norm. Gay people came out in larger numbers, in families, workplaces and churches, so that a Lewis Powell of 2003 would have struggled to believe he had never met one. Advocates built a careful litigation strategy, choosing cases with sympathetic facts and clear legal questions. And the Court itself built doctrine, in Romer and elsewhere, that made Bowers harder and harder to reconcile with everything around it.

It is worth hearing the critique from the other side, because it is about something real. Scalia's warning about where Lawrence would lead turned out to be accurate as a prediction: twelve years later, in Obergefell v. Hodges, the Court relied heavily on Lawrence to require marriage equality. Critics of Lawrence argue that the Court should not move ahead of democratic majorities on contested moral questions. The answer is that by 2003, democratic majorities had largely moved already, and the Court was catching up with the country, not getting ahead of it.

The last lesson cuts in every direction. A Supreme Court decision that seems permanent may not be. That was true of Bowers in 1986, and since Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade in 2022, with Justice Thomas writing separately that Lawrence should also be reconsidered, many people have worried that it is true of Lawrence too. No case seeking to overrule Lawrence is before the Court as of November 2026. But the history of Bowers is a reminder that constitutional rights are protected not just by precedent but by the public that believes in them.

Privacy is not a word in the Constitution

To see why Bowers and Lawrence came out so differently, you have to understand a line of cases that both opinions were arguing about, and a word that appears nowhere in the Constitution's text.

The modern story starts in Connecticut. That state had an old law making it a crime to use contraception, even for married couples. In 1965, in Griswold v. Connecticut, the Supreme Court struck it down. Justice William O. Douglas wrote that several provisions of the Bill of Rights together create zones of privacy, and that the idea of police searching a married couple's bedroom for evidence of contraceptive use was repulsive to the notions of privacy surrounding marriage. In 1972, in Eisenstadt v. Baird, the Court extended the right to use contraception to unmarried people. In 1973 came Roe v. Wade.

Those cases rested on the Due Process Clause of the Fourteenth Amendment, which forbids states to deprive any person of liberty without due process of law. The Court had long read "liberty" to include more than freedom from physical restraint, protecting, for example, parents' right to send their children to private school and to have them taught a foreign language. The question in each new case was how far that protection reached and how to tell.

Bowers answered by narrowing. White's opinion described the right at stake as specifically as possible, a right to engage in homosexual sodomy, and then asked whether that specific right had deep historical roots. Framed that way, almost no claim of liberty can win, since almost every new claim is new. Blackmun's dissent answered by widening: the right at stake was the right to decide for oneself, free from government intrusion, how to conduct one's most intimate relationships.

Lawrence adopted the wider framing. It also did something subtler. Kennedy did not rely mainly on the word "privacy." He spoke of liberty and dignity, and of the autonomy of the person in making intimate choices. That shift would matter later, because liberty and dignity are concepts that reach beyond the bedroom, to marriage and family recognition, as Obergefell showed twelve years on.

The critics' objection to this whole line of cases has always been the same: if the Constitution does not name a right, judges who find one are writing their own preferences into law. The best answer, I think, is that the Ninth Amendment explicitly says that listing certain rights does not deny others retained by the people, and that the founders who wrote "liberty" knew they were using a broad word. Reasonable people still disagree about where its edges lie. But the alternative, a Constitution that protects only what was already protected in 1868, would leave very little room for anyone the founders did not think of.

What you can do

Bowers fell because people kept pressing on every front for seventeen years. Here are places to press now.

• Check what is still on the books. Several states never formally repealed sodomy statutes that Lawrence made unenforceable. Ask your state legislators, whom you can find through find your representatives, whether your state has, and whether they will sponsor a repeal.
• Watch the Court with your own eyes. Court watch posts this term's Supreme Court opinions with the Court's summaries, the emergency docket and Senate votes on judges.
• Follow the confirmations. Who sits on the federal bench decides whether precedents hold. The Senate's votes on judges are on court watch, and the courts topic page gathers reporting on nominees and rulings.
• Support the litigators. The organizations directory lists LGBTQ+ legal groups and civil rights organizations by state; strategic litigation runs on small donations as much as large ones.
• Tell someone the story. The most surprising fact in this history is that a justice who decided Bowers thought he did not know any gay people. Make sure the people in your life know that they do.