Private Sphere Rights Post- Bowers v. Hardwick
Bowers v. Hardwick ended the battle in federal court for recognition of privacy rights or due process claims on behalf of gay men and lesbians. Federal litigation post-Hardwick would have to focus on equal protection claims instead, and, as we saw in the last chapter, even those claims would be hampered by a broad reading of Hardwick. But the fight against sodomy statutes did not stop merely because federal courts were no longer a friendly forum. Before the decision in Hardwick was handed down, litigation at the state level had successfully challenged state sodomy statutes. Most of these state challenges had been on federal constitutional grounds. Often state constitutional claims were included as a pro forma part of the argument, but the state courts always focused on the federal constitution in rendering their opinions. Once the U.S. Supreme Court had determined that no protected privacy right existed under the federal constitution for same-sex sodomy, gay rights litigators wondered about the continued validity of the sodomy statutes in those states whose courts had determined that the federal constitution did protect same-sex sodomy.
In most states, the issue was more academic than real. Since arguments against sodomy statutes were typically made on the basis of both state and federal constitutional claims, most state courts had ruled the statutes unconstitutional under the state constitution as well as the federal. Statutes that were held to violate a state's constitution were unaffected by the Hardwick decision since that decision was based on the federal constitution. Even if a state court had ruled the statute unconstitutional solely on federal grounds, the Hardwick decision could have no immediate impact on decisions in earlier cases because those decisions were final. Besides, in states