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Sodomy Laws and Sodomy Law Reform  
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The Connecticut law had stymied Planned Parenthood's attempt to start family planning clinics in which married couples could be counseled about contraception. Law reformers opened such a clinic and arranged for the arrest of the clinic's director, Estelle Griswold, to challenge the statute. Writing for the Supreme Court, Justice William O. Douglas described a right of privacy formed from the penumbra of rights emanating from the specific provisions of the Bill of Rights and the 14th Amendment, and he asserted that the right of a married couple to receive counseling and use contraceptives came within this right. The moral objections of Connecticut legislators were deemed insufficiently weighty to justify this intrusion into personal privacy.

In Loving, the Court struck down a Virginia statute making it a criminal offense for a white person to marry a person of another race. The Lovings had gone to the District of Columbia to marry and then moved back to Virginia, where they were arrested and prosecuted under this "miscegenation law." The Virginia trial court declared their marriage void and imposed a prison sentence that could be avoided only by leaving the state for at least 25 years. The Virginia Supreme Court upheld this decision, declaring that racial segregation was biblically grounded and necessary for the preservation of racial purity.

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In reversing this ruling, the Supreme Court relied on alternative grounds. Chief Justice Earl Warren wrote for the Court that any state law that imposes restrictions on personal liberty through the use of racial classifications was inherently suspect as a violation of the Equal Protection Clause of the 14th Amendment, and that the preservation of racial purity was not a legitimate interest of the state. Alternatively, the Chief Justice found that the Due Process Clause protected the individual's liberty to select a marital partner, suggesting a right of intimate association whose violation by the state would require a substantial justification.

These decisions, followed by Eisenstadt v. Baird, 405 U.S. 438 (1972), in which the Court made clear that the privacy right announced in Griswold applied to individuals, not just married couples, inspired gay rights law reformers to resort to the courts, asserting that the right of privacy would protect the private, consensual sexual activities of same-sex partners. Some initial lower court victories in Texas and Florida were soon overturned, however, and the Supreme Court appeared to cut short this avenue for law reform in Doe v. Commonwealth's Attorney for the City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), summarily affirmed without opinion, 425 U.S. 901 (1976), when it affirmed a ruling by a federal trial court rejecting a privacy challenge to Virginia's sodomy statute.

Hardwick v. Bowers

Disappointed gay rights litigators shifted their emphasis to state courts, winning some impressive victories in Iowa and New York; but the sheer number of states retaining sodomy laws was such that the lure of a Supreme Court decision that would strike them all down proved irresistible and new efforts were mounted in Texas (Baker v. Wade) and Georgia (Hardwick v. Bowers).

By the mid-1980s, the federal courts of appeals had issued contrasting rulings in those two cases. The 11th Circuit Court of Appeals found in Hardwick v. Bowers that Georgia's sodomy law potentially violated the right of privacy, and ordered a trial for the state to present its justifications of the law. The 5th Circuit Court of Appeals overturned a trial court decision in Baker v. Wade that had invalidated the Texas Homosexual Conduct Law (a sodomy law that outlawed anal and oral sex only for same-sex partners). The 5th Circuit court held that Doe v. Commonwealth's Attorney was a binding precedent that could be changed only by the Supreme Court.

The state of Georgia appealed the Hardwick ruling, and Donald Baker, the gay Texas plaintiff, appealed the ruling against him. The Supreme Court agreed to review the Georgia case.

In a 5-4 ruling that proved controversial among legal scholars, the Court ruled in Bowers v. Hardwick, 478 U.S. 186 (1986), that the Constitution did not include a "fundamental right for homosexuals to engage in sodomy." Writing for the majority, Justice Byron White described as "facetious" the claim that "homosexual sodomy" could be considered comparable to the kinds of privacy rights the Court had previously identified.

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