Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement

By Patricia A. Cain | Go to book overview

6
Bowers v. Hardwick

THE EARLY SODOMY CHALLENGES:
THE ROAD TO BOWERS V. HARDWICK

In the 1970s and 1980s, gay legal activists increasingly concluded that sodomy statutes had to be challenged by gay rights lawyers. In 1977, Lambda and the ACLU joined together to challenge the New York State sodomy statute, the constitutionality of which was before the New York Court of Appeals in People v. Mehr. 1Mehr presented a constitutional challenge to New York's consensual sodomy statute that forbade unmarried couples from engaging in "deviate sexual intercourse." 2 The case was before the court on defendants' motion to dismiss the criminal information that had been issued against them. The trial court held the statute in violation of the Equal Protection Clause, finding no rational basis for distinguishing between married and unmarried couples. 3 That decision was reversed on appeal. 4 The appellate division held that marital privacy interests recognized under Griswold supported the marital/nonmarital distinction. The New York Court of Appeals ultimately avoided the constitutional questions, refusing to rule on so difficult an issue "without a trial record and solely on the informations filed." Thus, the Court denied the defendants' motion to dismiss, without prejudice, and reserved review of the constitutional issues in the event the defendants were actually convicted. 5

Focusing on the right to privacy, the two organizations continued to mount challenges to sodomy statutes. 6 The New York sodomy statute was ultimately ruled unconstitutional in People v. Onofre, 7 a Lambda case. And on November 20, 1983, Lambda and the ACLU hosted a national meeting of gay and lesbian legal organizations to develop a national strategy for eradicating sodomy laws across the country. 8 This was the first meeting of

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Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement
Table of contents

Table of contents

  • New Perspectives on Law, Culture, and Society ii
  • Title Page iii
  • Contents v
  • Preface ix
  • Acknowledgments xi
  • Introduction 1
  • 1 - Earlier Civil Rights Movements 12
  • 2 - Lawyers, Legal Theories, and Litigation Strategy 45
  • 3 - Public Rights: 1950-1985 73
  • 4 - Private Rights: 1950-1985 133
  • 5 - When Private Becomes Public 155
  • 6 - Bowers v. Hardwick 169
  • 7 - Public Sphere Rights Post-Bowers v. Hardwick 183
  • 8 - Private Sphere Rights Post-Bowers v. Hardwick 232
  • 9 - Public Recognition of Private Relationships Post-Bowers v. Hardwick 254
  • 10 - Conclusion 277
  • Table of Cases 289
  • Bibliography 308
  • Index 313
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