Bowers v. Hardwick (1986) in Relation to the Socio-Cultural Landscape

The landmark decision in Bowers v. Hardwick (1986) emerged as a result of specific framing strategies by the Supreme Court. In Bowers, the Court decided to uphold a Georgia law criminalizing sodomy (Bowers 1). This case was decided during a highly fraught time in America, socially, culturally, and politically. I am interested in examining the connection between the particular modes of framing and the prevalent ideologies of the time. This paper will explore the question: how does Bowers v. Hardwick fit into the broader socio-cultural landscape of its time? Although there are many important framing strategies used by the Court in Bowers, I will focus on two: the Court’s understanding of homosexuality as conduct, rather than identity, and the view that the right to privacy does not extend to cover homosexual behavior. This paper will explore the issue of conduct vs. identity through a review of literature that discusses the AIDS epidemic, the media representation of homosexuality, and the increased political role of traditional Christian values in the 1980s.  The justices’ decision not to extend privacy to homosexual behavior reveals a belief system that is shaped by heteronormativity. A review of the literature about the way the general public and social movements either fed into or broke from heteronormativity reveals the degree to which the social-cultural landscape shaped this belief system.

The Court saw the Bowers case as fundamentally about conduct, and did not see this conduct as necessarily entangled with identity. In 2016, Peter Hart-Brinson conducted a sociological study on the way students and their parents conceptualize homosexuality. He concluded that Americans alive today experienced two shifts in the dominant social imagination regarding homosexuality. The first change in conceptualization occurred between 1969 and 1979, when it shifted  from “a mental illness to deviant behavior,” and the second was a shift from deviant behavior to collective identity between 1987 and 1992 (Hart-Brinson). Whereas “50 percent of parents used metaphors of invisibility to express their feeling that one should not have to see or confront homosexuality in any way...only 14 percent of students did so” (Hart-Brinson). The first statistic reveals the parents’ tendency to separate deviant behavior from the identity of those partaking in the acts. Alternatively, the students do not draw the same distinction. Jeni Loftus also studied public opinion in the context of Bowers regarding differences in the mainstream conception of homosexuality. She cites various studies which argue that between 1973-1988 the majority of the public believed homosexual acts were deviant and sinful, but were still likely to support legal equality for homosexuals (Loftus 764). When viewed in conjunction with Hart-Brinson’s study, this “distinction between sin and sinner,” as Janet Jakobsen and Ann Pellegrini describe it, seems to reflect the older generation’s conceptualization of homosexuality (Jakobsen and Pellegrini 1). The Court’s belief that they can focus solely on homosexual acts without commenting on homosexual identity seems to align them with the older generation’s socio-cultural ideas regarding homosexuality.  

The AIDS epidemic was significant in contributing to the conceptualization of homosexuality as deviant behavior during the mid 1980s. Dennis Altman studied the effects of the AIDS epidemic on public perceptions of homosexuality. During this time, AIDS was known for being linked to gay men and was spread largely due to the practice of unsafe sex. He argues that the public does not make the “distinction between behavior and identity” so “the public perception of homosexuality [became] largely indistinguishable from its perceptions of AIDS,” and was defined by acts of unsafe sex (Altman 301-302). He goes on to explain that when the Reagan administration refused to federally fund educational and healthcare services focused on AIDS prevention, gay-rights groups provided these programs instead (Altman 304). This idea is echoed in Christopher Haight’s article, “Hate Crimes, Criminal Justice, and Gay Rights in Texas,” which highlights the importance of gay and lesbian communities in combatting AIDS in Texas (Haight 24). Both of these authors claim that the contribution of the homosexual communities to the battle against AIDS further linked the two in the public’s consciousness, solidifying homosexuality as unsafe behavior (Altman 304). 

There were also various laws throughout the country that criminalized “homosexual conduct” specifically (Haight 25). Besides the Georgia statute considered in Bowers, Haight gives the example of Section 21.06 of the Texas Penal Code (Haight 25). The criminality of homosexual conduct and the association of homosexuality with this conduct due to the AIDS epidemic led to an increase in discrimination against homosexuals. Various scholars such as Altman, Haight, Loftus and Jennifer Power discuss this heightened discrimination. Altman states specifically that “few diseases in recent history have led to as many stringent proposals to restrict the rights of those affects, and even fewer have led to claims for discrimination against all members of high-risk groups, whether or not they were actually contagious” (Altman 306). Altman believes that the decision of Bowers was based  at least partially on this fear of AIDS. This research leads to the tentative conclusion that the Bowers Court reflects this discriminatory behavior, as it upheld the criminalization of behavior that is associated with homosexuality, but did not criminalize the same behavior when it applied to heterosexuals (Halley 1742, Jakobsen and Pellegrini 26). 

While most of the sources I reviewed attest to the public conflation between homosexuality and AIDS, many of these sources present a nuanced analysis of the effects of the AIDS epidemic on the public view of homosexuality. Hart-Brinson explains that the AIDS epidemic and the establishment of ACT UP, a grassroots organization established to fight the epidemic, forced Americans to view the “gay and lesbian community more seriously” (Hart-Brinson). Altman affirms this claim, stating that as visibility of homosexual communities in the public sphere increased due to AIDS, Americans were forced to acknowledge homosexuals as a legitimate identity (Altman 308). Loftus also states that the increased acceptance of homosexual identity could be due to the increased presence of LGBTQ groups in the public sphere during the epidemic (Loftus 779). Based on this information, it would seem that the Bowers Court has not refelected the public trend towards conceptializing homosexuality as an identity. 

The media representation of homosexuality during the time frame of Bowers reflects a shift in public consciousness regarding homosexual identity. In the early 1980s, most media outlets published negative portrayals of homosexuals. Media outlets were largely responsible for linking the AIDS epidemic with gay men, reflecting the political and religious right’s backlash against the social movements of the 1960s and 1970s (Hart-Brinson). In his article, “The Great Retreat: Decline of the Public Sphere in Late Twentieth-Century America,” Carl Boggs highlights the increasing influence of talk-radio in the early 1980s (Boggs 749). Talk-radio and television were controlled by large companies with conservative agendas that gained popularity through “bombast, hate-mongering, and superficial debates around issues like….gays in the military, cross-dressing, and teenage sex” (Boggs 750). Religious right media outlets often evoked “images of gay sexuality and portray[ed] them as hypersexualized, predatory, and deviant,” mirroring the Court’s focus on solely homosexual conduct (Loftus 779). The influence of the conservative agenda could be seen in both politics and the media in various ways, such as the upholding of the Hyde Amendment, which prohibited issuing federal funds to support all abortions, and was endorsed by a multitude of media consultants (Scales 561). 

However, towards the middle and end of the 1980s, the media changed its attitude towards the homosexual community. The AIDS epidemic caused “a shift in the language and practices of journalists covering the gay community” (Hart-Brinson). Similarly, “the American Society of Newspaper Editors issued a report urging newspapers to alter...the language used to cover lesbian and gay issues” from overtly negative to more respectful and nuanced (Hart-Brinson). The homosexual community was also represented in popular films in the early 1990s, whereas they were normally excluded prior (Hart-Brinson). Both of these points address the way homosexuality as an identity became increasingly represented and legitimized in the media. This prompts the question of whether the public perception of homosexuality as an identity precipitated a change in its representation in the media, or the media’s new representation of homosexuality as an identity influenced public sentiment. 

At the National March on Washington for Lesbian and Gay Rights in 1987, a protestor stated that she believed “Mainstream media coverage would highlight AIDS issues in the legal arena, and overlook the wide array of battles the community is fighting” (Hughes 18). Her prediction aligns with the claims of Altman, Hart-Brinson, and Haight that homosexuality was only addressed in the media in relation to AIDS at the beginning of the epidemic. Unlike media representations in the beginning of the AIDS epidemic that inaccurately equated AIDS with homosexuality, media coverage at the March was “accurate and sensitive,” and the “Washington Post gave it front-page coverage” (Hughes 18). This attests to the conceptualization shift from homosexuality as deviant behavior to a legitimate identity regarded highly on the cover of a mainstream newspaper. The fact that the National March was partially prompted by the Bowers decision suggests that it might have engendered the shift in the public’s recognition of homosexuality as an identity.

The differentiation between acts and identity is a particularly Christian concept. In “Love the Sin,” Jakobsen and Pellegrini suggest that the Court’s focus on identity reflects the Christian emphasis on orthodoxy, whereas various other religions place emphasis on orthopraxy (Jakobsen and Pellegrini 125). The importance Christianity places on belief as opposed to practice allows the public to differentiate between acts and identity. Through Christianity, Christians can justify loving the sinner, while hating the sin, because they do not see homosexual sodomy as a necessary expression of one’s homosexual identity. The Court reflects this approach, as they claim that this case is entirely about conduct, and not identity. This Christian understanding of the disparate relationship between acts and identity is reflective of the general conservative sentiment “from the 1970s through the mid 1980s,” when “Americans held increasingly traditional religious beliefs, with more people supporting prayer in school, and believing the Bible was the literal word of God (Loftus 765). While the Court claims to separate homosexual acts from homosexual identity, Jakobsen and Pellegrini observe the Court’s implicit commentary on homosexuality as an identity (Jakobsen and Pellegrini 29). In traditional Biblical laws, acts of both heterosexual and homosexual sodomy are condemned. While the Georgia law on its face is neutral about sodomy, Justice White is not concerned about heterosexual sodomy, but specifies that the constitution allows for the “criminiliz[ation] [of] homosexual sodomy” (Bowers 2). Thus, while the Court claims to focus solely on acts, they also subtly take the “recent concern with status or identity” into account (Jakobsen and Pellegrini 29). 

The Court’s decision in this case is affected by Christian values in ways that extend beyond the distinction between act and identity and tie to the larger culture of heteronormativity. Jacobsen and Pellegrini emphasize that “the unstated religious assumptions of U.S. secularism are specifically Protestant" (Jakobsen and Pellegrini 22). The institutions of Christianity, such as marriage and family, involve heterosexual relationships, which contribute to the mainstream culture of heteronormativity. Not only does the Court make explicit religious appeals in Bowers but it argues that because homosexual sodomy is not connected to the supposedly secular values of “family, marriage, or procreation,” the right to privacy does not cover these acts (Bowers 2). Jakobsen and Pellegrini note that even when the Court seems to be using language of secular morality, they are reflecting Christian morality, which has shaped the dominant American culture.

Jakobsen and Pellegrini go on to discuss the way both movements for and against homosexuality during this time fed into the U.S. culture of heteronormativity. They explain that a multitude of pro and antigay ads claim to be motivated by public interest and represent American families (Jakobsen and Pellegrini 86). One pro-gay ad referenced in the book shows a family with heterosexual parents who are “white, from the middle west, active members of a Christian denomination [and] reproductive” (Jakobsen and Pellegrini 87). Jakobsen and Pellegrini argue that these ads appeal to a “tolerant middle,” that “embodies the values of reason, tolerance, and civility” which is “made manifest through faith and family” (Jakobsen and Pellegrini 56 and 87). They go on to explain that “faith and family are not neutral values...but themselves encode particular norms of Christianity and heterosexuality” (Jakobsen and Pellegrini 86). The pro-gay appeal to mainstream, heteronormative culture not only reflects the socio-cultural landscape of the time but perpetuates it. Amin Ghaziani and Peter Scales discuss the dominance of heteronormativity during this time. In the 1960s and 1970s, the gay-rights movement asserted its individuality, appealing to minority politics and claiming its difference from dominant American culture. However, “In the late 1980s and early 1990s lesbian and gay activists strategically returned what they thought would be a palatable, distinction de-emphasizing image,” portraying themselves as “regular people, the kind that live next door” (Ghaziani 101). Ghaziani frames this within the larger culture of heteronormativity by explaining that their  “sexual behavior conforms to traditional gender norms, who link sex to intimacy, love, monogamy, and preferably marriage, and who restrict sex to private acts that exhibit romantic or caring capacity” (Ghaziani 104). Many gay individuals purposefully separated themselves from more flamboyant homosexual communities, “project[ing] themselves as the true lesbian and gay movement and thus to trump those queers who do not share their own sense of the world” (Ghaziani 104). By appealing to heteronormative values to legitimize homosexual identity, gay-rights movements often reinforced the dominant mainstream culture, rather than rejected it. 

Altman reflects on the way this shift from individualism to assimilation in the gay-rights movement can be tied back to the AIDS epidemic. He argues that the disassociation between homosexuals and the counterculture movements of the 1960s and 1970s can be partially attributed to the gay-movements’ work with the government during the AIDS epidemic, altering their earlier anti-government strategies (Altman 313). Peter Scales’ article frames this discussion in the larger context of the conservative culture of the time. He explains that topics outside of heteronormative culture such as “contraception, homosexuality, abortion, [and] masturbation” were excluded from most sex education programs during the 1970s and 1980s (Scales 560). Based on this evidence, the Bowers court seems to reflect the socio-cultural landscape of the time, which was grounded in heteronormative institutions.

Simon Hall complicates the above ideas regarding the gay-right movement’s appeal to the dominant, heteronormative culture. Two of his articles, “The American Gay Rights Movement and Patriotism” and “Americanism, Un-Americanism and the Gay Rights Movement” are particularly relevant in terms of this discussion. Unlike Ghaziani, Hall believes that after the Stonewall Riot of 1969, many gay-rights groups rejected the strategy of assimilation by defining homosexuality as unique and separate from the mainstream culture (Hall). In 1990, Queer Nation, an LGBTQ activist organization, published a manifesto stating “[Being queer is] not about executive directors, privilege and elitism. It's about being on the margins, defining ourselves; it's about gender-fuck and secrets…” (Hall, Americanism, Un-Americanism, and the Gay Rights Movement 1115). Further, many gay-liberation movements celebrated an independent gay lifestyle and employed militant tactics to condemn the dominant economic, political, and social structures of America (Hall, The American Gay Rights Movement and Patriotic Protest 561). Altman’s article supports Hall’s stance, as he argues that the gay-right movement was less about assimilation and more about defining itself in opposition to the heteronormative, mainstream culture (Altman 311). However, Hall argues that despite the gay-right movement’s emphasis on individualism, most groups used patriotic sentiment to bolster their platform, often appealing to the “Declaration of Independence, the Bill of Rights, and the American ideals of liberty and equality” (Hall, The American Gay Rights Movement and Patriotic Protest 539). When this conclusion is analyzed in conjunction with Jakobsen and Pellegrini’s assertion that Protestantism is intertwined with the American value system, one must consider the ways appeals to patriotism contribute to a heteronormative culture, whether intentionally or not. Thus, the court’s decision in Bowers evidently reflects the heteronormative conservative culture of the time. More research regarding social movements could uncover the extent to which progressives contributed to this culture.

While my initial question assumed that the Bowers case would either be reflective of the socio-cultural landscape or not, the general scholarly consensus seems to position the case during a transitional moment in American culture. However, I recognize that in order to determine how the Bowers decision ties to the socio-cultural landscape of the time, various other factors would have to be taken into account that were beyond the scope of this paper. First, there are various other framing strategies the Court employed that are not discussed here, such as rooting the idea of liberty in the idea of history and ordered liberty. If this paper was longer, I would also explore other important events that shaped the socio-cultural landscape, such as the Cold War and the aftermath of the Vietnam War. Both of these events shaped the way people thought of Americanism and the groups of people considered American. 

Ultimately, the immediate responses to the AIDS movement, the media portrayals of homosexuality, and the rise of religiosity in the United States all help characterize the socio-landscape as conservative in the early 1980s. These factors contributed to the public conception of homosexuality as deviant behavior, rather than an identity. However, the AIDS epidemic, the National March on Washington for Lesbian and Gay Rights, and various protests that commenced afterwards pressured media outlets to alter their representations of homosexuality. The media broadened their portrayals and focused more on homosexual identity, rather than specific sexual, deviant acts. The March and the subsequent protests were triggered by both the Reagan administration’s inadequate response to the AIDS epidemic and the Bowers decision (Hart-Brinson). The Bowers decision seems to occur at a moment where the conservative backlash against the social movements of the 1960s and 1970s shifts to a liberal backlash against the Reagan administration and the conservative policies of the 1980s. Thus, it is highly possible the Bowers decision was influential in catalyzing the shift towards a more liberal landscape, but a thorough answer to this question requires more research. Despite the liberalizing landscape, the Court’s determination that the right to privacy does not extend to homosexual acts seem to align with the persistence of heteronormativity in American culture.

Overall, the literature is relatively coherent regarding the shift in the public conception of homosexuality from deviant behavior to identity during the 1980’s. The shift aligns with the more general shift from a rigid conservatism to an emphasis on liberalism and tolerance. My research suggests that there are debates over the extent to which the AIDS epidemic contributed to these shifts. Most sources agree that the initial reactions to the epidemic heightened the view of homosexuality as deviant behavior, conflating homosexuality and acts of unsafe sex. However, the sources I looked at went on to analyze the ways in which the epidemic legitimized the movement, prompting the acknowledgement of homosexuality as an identity category towards the late 1980s. Similarly, scholars tend to agree regarding the media’s reflection of the conservatism and religiosity of the early 1980s, and the subsequent liberalization of the media due to the liberation movements, AIDS epidemic advocacy, and the Bowers decision. The initial tendency to separate sinful, homosexual acts from homosexual identity is grounded in the Christian emphasis on belief, which was was particularly prevalent during the early to mid 1980s. The Bowers court reflected this thinking, along with the conservative ideals prior to the liberal shift towards the latter half of the decade. The Bowers Court also seems to reflect the culture of heteronormativity in America, which is grounded in Christian institutions. There is scholarly consensus over the presence of heteronormativity in America, but the sources are conflicted over the extent to which the gay-rights movement both contributes to the culture and is a product of it.