THE TALK OF THE TOWN

COMMENT OVERRULED - In February, 1983, lawyers for the American Civil Liberties Union in Georgia faced a dilemma.

- —Amy Davidson Sorkin

After years of looking, they believed that they had found the ideal plaintiff to challenge a state law against “the offense of sodomy,” which carried a sentence of one to twenty years. He was Michael Hardwick, a twenty-eight-year-old bartender who had been arrested after a police officer, following up on an old ticket for drinking in public, came into his home and found him having oral sex with another man. No one involved was a minor, or a sex worker, or afraid of being outed—Hardwick was openly gay. And he'd immediately asked the officer a question that many jurors might have: “What are you doing in my bedroom?” An A.C.L.U. lawyer later said that it was “the best fact pattern we will probably ever get in a sodomy law case.” But, perhaps for that very reason, the Fulton County district attorney stalled on bringing it to trial. So the A.C.L.U. sued to force the issue: it was the eighties, a decade and a half after Stonewall; Georgia's law was archaic and cruel. It was past time.

Yet when the case, Bowers v. Hardwick, came before the Supreme Court, in 1986, a 5-4 majority upheld the law—a profound shock for many people in and outside the gay community. As Martin Padgett writes in a new book, “The Many Passions of Michael Hardwick,” some factors contributing to the defeat were specific to that period, including the rise of Reaganism, fearmongering about AIDS, and the personal pique of Justice Lewis Powell, who later said that he had found the whole business “frivolous.” But its lessons may be useful in these unsteady days, too, with our own uncivil Court.