Supreme Court Justice Lewis Powell
The New York Times, anticipating next year’s Supreme Court consideration of the gay marriage problem, tells a fascinating story about the late Justice Lewis Powell, who was the swing vote in the 1986 case of Bowers v. Hardwick, which was overturned in 2003, upholding a Georgia law outlawing sodomy.
During the consideration of the case, Powell told his colleagues that he had never met a homosexual, though in reality he had more than one gay law clerk during his tenure, and according to at least one of the former clerks, knew it. (Powell even quizzed one of them about the mechanics of gay sex.) The reason he told his fellow Justices an untruth, the theory goes, is that he knew there was a stigma in the legal profession and in Washington connected to being gay, and he wanted to protect his law clerks.
Yet Powell, after flip-flopping on Bowers, finally came down on the side of a state’s right to make homosexual sex a crime.
Of course, Powell may have believed that gay sex shouldn’t be a crime, and personally bore no animus towards gays, yet still ethically conclude that such a law was constitutional. Yet we have a man who must have been torn by irresolvable contradictions: a deeply held moral belief that homosexuality was wrong, personal friendship and respect for young homosexual men he had to trust and depend upon, loyalty to them even to the extent of lying for their protection, and still casting the deciding vote in a landmark case that would marginalize homosexuals further, avoiding a major opportunity to expand their rights and acceptance in society.
It’s so much less complicated, not to mention right, to regard and treat gays like citizens and human beings, like everyone else. That, as much as any other factor, has spurred the remarkable change in the law and the culture over the last decade.
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Facts: New York Times
Graphic: Supreme Court History
Ethics Alarms 
The case overturned was Bowers v. Hardwick, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html . Justice Powell was long off the Court when Lawrence v. Texas was decided.
RIGHT!!!! Thanks for the quick catch—I used the overturning case rather than the overturned. Fixed it.
Never mind off the Court, the man was DEAD when Lawrence v. Texas was decided, although not before expressing post-retirement regret for being the swing vote in the Hardwick case. Still grappling with this one myself, trying to reconcile the fundamental American value of equal treatment under the law with deeply held moral disgust for homosexual behavior.
Steve -O, might I ask you a question? And I ask in the spirit of honest, open dialogue, truly. Is there heterosexual behavior against which you hold deep moral disgust and which is yet perfectly legal? I ask because my husband and I have been married 21 years. There is nothing to prevent us from engaging in behavior that others might find immoral while still enjoying the rights and privileges of a married couple – oh heck, I don’t know, joining a swinger’s club, my taking a girlfriend, his taking a boyfriend. It is behavior others might not like or approve of but it doesn’t stop us from being legally married. Why does perceived immoral behavior from a heterosexual couple not prevent them from being married and yet from a homosexual couple it does or should? If I am wrong, or asking the wrong questions, please say so. I would very much like to hear your thoughts.
I’ll answer this one and say “abortion”.
And saying “no” to gay sex doesn’t kill anyone.
You might as well have answered with “leprechauns” for all the sense it made.
There is evidence of colliding universes – so, they are NOT parallel, after all!
I don’t get it.
We’re talking legality and illegality of behavior here, not the redefinition of marriage, which is a separate discussion. That said, you are correct that the Bowers decision carefully avoided the question of sodomy among heterosexuals. The original statute wasn’t specific to sexuality, but instead outlawed specific behavior. The decision became sexuality-specific when Justice White, wrote that it was inconceivable to him that the founders intended to enshrine a fundamental right to engage in homosexual sodomy in the Constitution. Frankly he was probably right, in the days of the Founding Fathers homosexuals were still on a par with the mentally ill. I grew up in the 70s and 80s, and was in high school during the height of the AIDS panic. My classmates and I openly talked of how gay people were disgusting disease-spreaders who liked to play in excrement and how if we saw someone wearing the earring on the wrong side we’d beat his brains out. Typical for 16yos all full of piss and vinegar. I guess I just never progressed far beyond that, since I really did not know any gay people in college or law school, and unfortunately my first experience working with such a person fulfilled all the worst stereotypes (temperamental, unstable, one wrong word and he’d just go off his head, but pusillanimous when a peer called him out on something, plus talking with an annoying lisp). So, I kind of didn’t progress as an adult with my attitudes and never quit got past the “that’s disgusting” approach. Hateful militants like Dan Savage don’t help either.
That said, something doesn’t ring right about still treating gays like subhumans when they were also targets of the Holocaust, which a lot of Americans perished to stop, and, as an Asperger’s sufferer who was bullied for being odd I have some sympathy for the bullying that the openly or suspected gays go through from the ignorant or just those looking for someone to target while growing up. I can get around the religious angle by saying “render unto Caesar that which is Caesar’s and unto God that which is God’s,” but there’s still that visceral revulsion factor.
It sounds like it’s pure ick factor.
My classmates and I openly talked of how gay people were disgusting disease-spreaders who liked to play in excrement and how if we saw someone wearing the earring on the wrong side we’d beat his brains out. Typical for 16yos all full of piss and vinegar.
That’s typical asshole and bully behavior, not typical behavior. This reminds me of something a very religious college acquaintance told me. When he was in high school, him and his friends would pile into the back of a pickup and throw rocks at people. He said it like it was completely natural, and seemed shocked that I was… well… shocked.
I guess I just never progressed far beyond that, since I really did not know any gay people in college or law school,
I suspect you knew alot of gay people, they just didn’t tell you they were gay. I can’t blame them.
I can get around the religious angle by saying “render unto Caesar that which is Caesar’s and unto God that which is God’s,” but there’s still that visceral revulsion factor.
That you have to get around religion kind of shows the problem loud and clear.
“That’s typical asshole and bully behavior, not typical behavior. This reminds me of something a very religious college acquaintance told me. When he was in high school, him and his friends would pile into the back of a pickup and throw rocks at people. He said it like it was completely natural, and seemed shocked that I was… well… shocked.”
Yup – we were 16yos trying to move up the ladder of cred, to fit in, to be more like the cool kids, though we would never reach the level of the football heroes. The quickest way to do that was to stomp someone lower down the ladder, and gay people were considered the lowest of the low (the mythical “linebacker with two awesome dads” didn’t exist then, if he ever did). Maybe your friend came from an area where throwing rocks and playing mailbox baseball was the thing to do. I don’t excuse any of this behavior, but I don’t think misbehavior by teens trying to look tough or impress their peers is anything atypical. I will say in our case it was nothing but talk, none of us were stupid enough to pile into a train for the Village armed with bats.
“I suspect you knew alot of gay people, they just didn’t tell you they were gay. I can’t blame them.”
I knew OF a few people who appeared suspicious, and of course stories have later emerged, and I kept my distance from them. I went to strongly Catholic high school and college, where misbehavior was only punished if there was incontrovertible evidence of guilt (and only if the perpetrator was not rich or well-connected), if you were wise, you kept that sort of thing under your hat from everyone there, lest you get beaten up and “nobody saw nothin’.”
“That you have to get around religion kind of shows the problem loud and clear.”
I don’t consider it a problem, but your concern is noted.
I knew OF a few people who appeared suspicious, and of course stories have later emerged, and I kept my distance from them. I went to strongly Catholic high school and college, where misbehavior was only punished if there was incontrovertible evidence of guilt (and only if the perpetrator was not rich or well-connected), if you were wise, you kept that sort of thing under your hat from everyone there, lest you get beaten up and “nobody saw nothin’.”
This strongly suggests that homosexuals hid their sexuality. It’s not like Catholics have less homosexuals than non-Catholics. It’s extremely likely that you knew homosexuals.
I don’t consider it a problem, but your concern is noted.
Really? You said this: “I can get around the religious angle by saying ‘render unto Caesar that which is Caesar’s and unto God that which is God’s,’ but there’s still that visceral revulsion factor.”
So, is religion an obstacle to your getting to equal treatment or not?
Thank you, Steve, for your reply.
You are welcome, Alicia, in the spirit of honest discussion. Not all who are opposed to homosexuality are simply beer-drinking, t-shirt wearing stereotypical haters of all not like them.
When I’m in a similar quandary, I think facing my biases and looking at the reasons for my beliefs often helps me out.
How are you using the term “moral disgust”? Do you find homosexual behavior disgusting, or do you find it disgusting that people would go against the social more of heterosexuality?
If it’s the former, then it’s the ick factor. (I see sex with obese people as icky, but that doesn’t mean there’s anything bad about it). If it’s the latter, then it’s an appeal to tradition.
Are you using the term moral disgust to mean something I didn’t think of?
Yeah, yeah, I got the two cites mixed up. Fixed it. Mea Culpa.
To say nothing of the fact that sodomy is generally physically harmful, requiring man made products to be performed relatively safely at all, being biologically unintended.
You realize that oral sex counts as sodomy, right? Your argument is crap.
You can do better than that.
That’s plenty to handle Isaac’s comment.
I could also throw in that there are women who can’t have vaginal sex without man made products to make it relatively safe, and that there’s all sorts of conduct that we do that is generally physically harmful and requires man made products to be performed relatively safely. Bungee jumping, skateboarding, riding in a car, etc…
Another issue is the “biologically intended” language. It really has no meaning. Whatever is meant by it, I’m sure typing on a computer wasn’t “biologically intended”.
From the decision in Lawrence et al. v. Texas, is any assertion by any government, concerning having any interest in the engaging in any certain intimate sexual contact by any number of persons, regardless of those persons’ consent, a violation of the Due Process Clause?
No. The government dealing with non-consensual conduct is not prohibited by Lawrence via the Due Process clause. Why would you even think that?
I was not thinking that. I was aiming at possible government interest in consensual conduct. Non-consensual, as in rape, is obviously included; I tried to ask the question with “regardless” applied to consensuality.
I said “included,” meaning, “of interest” (to the government).
Regardless means “without any regard for”. As used, it means both consensual and non-consensual intimate sexual contact.
To the point of only consensual conduct:
As the due process clause was used, the government would have to clear a pretty damn high hurdle to muck in consensual sexual conduct now. That’s as it should be for consensual conduct in general. I think Incest laws (at least intergenerational ones) would probably survive. Heterosexual incest laws may also survive due to the excuse of the possibility of children.
I can’t think of anything else particularly controversial that would be involved.
Yes: What you and I can’t think of, we should worry about.
I did mean to use “regardless” like you describe; I was aiming specifically to make my question all-inclusive of status of consent. Your reply was very consistent with what I expected you to say. The government’s hurdles to clear in order to assert Due Process interest over consensual sexual conduct are exactly what troubles me.
I think it would be unwise for the government to cede all interest in sexual conduct with a presumption of, say, some rights to privacy or equal protection based solely on existence of consent of all persons involved in the conduct. The potential for such to enable deprivations of persons’ liberty, dignity, and general welfare is alarming.
I did mean to use “regardless” like you describe;
Really? You explicitly said the opposite:
“I was aiming at possible government interest in consensual conduct. Non-consensual, as in rape, is obviously [of interest to the government]; I tried to ask the question with “regardless” applied to consensuality.”
Which is it?
The government’s hurdles to clear in order to assert Due Process interest over consensual sexual conduct are exactly what troubles me.
I think it would be unwise for the government to cede all interest in sexual conduct with a presumption of, say, some rights to privacy or equal protection based solely on existence of consent of all persons involved in the conduct. The potential for such to enable deprivations of persons’ liberty, dignity, and general welfare is alarming.
I don’t think government ever had a valid interest in private sexual conduct. What deprivations are you so worried about that you are willing to give government control over our sex lives?
“Which is it?”
It looks like you and I are going to argue about how I meant “regardless,” regardless of what the word means or what I meant.
But, I’ll try to clarify by re-phrasing my question (but no apology for the many anys):
From the decision in Lawrence et al. v. Texas, is any assertion by any government, concerning having any interest in the engaging in any certain intimate sexual contact by any number of persons, whether those persons’ engaging in such contact is consensual or not, a violation of the Due Process Clause?
“I don’t think government ever had a valid interest in private sexual conduct.”
That’s a little sloppy of you (you don’t you think so?).
“What deprivations are you so worried about that you are willing to give government control over our sex lives?”
More sloppy still. Our own limited imaginations ought to be reason enough to worry about deprivations we can’t discern or foresee that at least some of us are threatened with.
Well, let’s see…the government already regulates our health life; our food life; our school life; our employment life; our transportation life; our leisure life; our toilet-using life; our money-using life; our prayer life; our marriage-defining life; our death l…er, our survivors’ lives when we die…seems to me like we’ve consented pretty much across the board to have government do what government does about what we do or want to do, never mind if whatever we do or want to do is private or has anything to do with our consent or non-consent.
So what’s with the big hang-up about letting the government regulate just another aspect of our life? It’s only sex. Oh – perhaps you’re connecting sex with reproduction? Silly!
Eeyoure,
Clarified statement
From the decision in Lawrence et al. v. Texas, is any assertion by any government, concerning having any interest in the engaging in any certain intimate sexual contact by any number of persons, whether those persons’ engaging in such contact is consensual or not, a violation of the Due Process Clause?
This is how I took it the first time, and my response still applies: “No. The government dealing with non-consensual conduct is not prohibited by Lawrence via the Due Process clause. Why would you even think that?”
Government interest in private sexual conduct
T:I don’t think government ever had a valid interest in private sexual conduct.
E:That’s a little sloppy of you (you don’t you think so?).
I don’t see what’s sloppy here.
Deprivations
More sloppy still. Our own limited imaginations ought to be reason enough to worry about deprivations we can’t discern or foresee that at least some of us are threatened with.
This is beyond stupid. Any action (including non actions) could be subjected to this. It’s not valid.
Going off the rails
Well, let’s see…the government already regulates our
* health life => Very limited, but mostly to keep people from being screwed.
* our food life => no
* our school life => only public schools, and only limited
* our employment life => Limited, mostly to keep people from being screwed.
* our transportation life => just to protect us from other people’s bad acts
* our leisure life => bullshit
* our toilet-using life => bullshit
* our money-using life => bullshit
* our prayer life => incredibly bull shit
* our marriage-defining life => still no and not parallel.
* our death l…er, our survivors’ lives when we die => too general to mean anything
…seems to me like we’ve consented pretty much across the board to have government do what government does about what we do or want to do, never mind if whatever we do or want to do is private or has anything to do with our consent or non-consent.
I tend to fight against government criminalizing any consensual, nonharmful behavior. This is like trying to use the legality of alcohol to argue against Jack’s anti-pot stance.
The Supreme Court in Lawrence addressed the narrow question of whether the right to privacy protected consensual acts of sodomy committed in a private context. It did not hold that sodomy, or sexual intercourse per se, was a constitutional right. Indeed, it did not overrule prior court rulings that upheld prohibitions against sodomy outside of the private context, even those that targeted homosexual sodomy more harshly than heterosexual sodomy. Cf. National Gay Task Force v. Board of Education, 729 F.2d 1270 at 1273 (10th Cir. 1984) (upholding law that allowed teachers to be fired for engaging in public homosexual activity)
The law upheld in Bowers did treat gays like everyone else- everyone was equally prohibited from engaging in sodomy.
Not true! Non-gays had other options. If you ban wheelchairs as transportation for all, is that really equal treatment under the law? The majority focused on homosexuality.
Gays had other options too, such as hand holding and hand-genital contact. Indeed, the Court in Bowers explicitly reserved the question of whether homosexual sodomy could be treated more harshly than heterosexual sodomy under equal protection. See 478 U.S. at 196n.8 (noting that respondent did not rely on equal protection clause)
I have to say that I read the New York Times article and I was struck that if Powell was asking about the mechanics of gay sex, he was focused on the wrong issue. (Other people’s sex may have an “ick” factor, but that is not a basis for a Constitutional decision any more than good taste is a factor in a First Amendment decision.)
Yes, wasn’t that odd? Or maybe working on the case made him curious. But wasn’t that the same period where the Court was watching a lot of porn? He should have been an expert.
These apparent contradictions are easily reconciled. There is a difference between believing a state can prohibit an act that is malum in se, and that the state should punish people merely for pro-homosexual thoughts and feelings.
The Tenth Circuit recognized this distinction in National Gay Task Force, cited above. While holding that public sodomy is not a civil right, it did hold that the state may not fire teachers for the mere advocacy of homosexuality (including the repeal of anti-sodomy laws.) The same court that allowed states to punish homosexual behavior in some contexts also reaffirmed that gays have the same right to freedom of speech as everyone else.
I don’t see how the conflict is resolved. He thought it was bad based on inherent belief, but knew that his vote that way was going to cause harm to people. Pro-homosexual advocacy doesn’t come into the picture.
The job of the Supreme Court is the faithfully interpret the law and the Constitution.
One could argue that the Tenth Circuit should have fully affirmed the law at issue in National Gay Task Force, on the basis that children might experiment with homosexuality and catch AIDS. The Tenth Circuit rightly refused to consider such arguments, simply applying the First Amendment.
The job of the Supreme Court is the faithfully interpret the law and the Constitution.
Take it up with Jack. I was just pointing out that your complaint didn’t touch his point.
One could argue that the Tenth Circuit should have fully affirmed the law at issue in National Gay Task Force, on the basis that children might experiment with homosexuality and catch AIDS.
One could argue that the moon is made of green cheese, too. That doesn’t support, well, anything.