Powell Reportedly Switched Vote on Sodomy Decision

One of the most controversial Supreme Court rulings this year, the 5-4 decision upholding a Georgia law criminalizing certain homosexual acts, was initially decided the other way until Justice Lewis F. Powell Jr. changed his mind, according to informed sources.

The case, Bowers vs. Hardwick--which gay rights groups call their Dred Scott decision--was argued on March 31, and the justices met in secret conference several days later to discuss it.

Four justices, led by Harry A. Blackmun, voted to say that a constitutional right to privacy protects homosexuals and that the state would have to show important reasons to outlaw sodomy among consenting adults.

Powell Did Not Agree

Although Powell did not agree with the reasoning, he voiced sufficient distaste for the anti-sodomy law that he agreed to provide the crucial fifth vote for an overall decision striking down the Georgia statute.

Four other justices, led by Byron R. White, said the Constitution does not grant homosexuals a right to such conduct, even in their homes.

Powell’s vote was tentative. All votes in conference are preliminary and can be changed at any time up to the formal announcement of the decision by the court.

With a fifth vote, Blackmun could have written a majority opinion that would have had the effect of overturning anti-sodomy laws in 24 states and the District of Columbia.

Within days of the conference, however, Powell reportedly sent a memo to his fellow justices saying that he was switching his vote and would, given the “posture” of this case, join White and the others to uphold the Georgia law.

A Critical Factor

Sources were unable to pinpoint why Powell changed his mind. They said a critical factor was that Michael Hardwick, a gay Atlanta bartender, had not been prosecuted. Instead, Hardwick, through a civil lawsuit, was asking the court to declare the law unconstitutional.

Powell stayed with White, despite a strident dissent circulated by a furious Blackmun, and joined the majority opinion issued June 30.

When the court announced its ruling in the Georgia case, Powell issued a one-paragraph concurring opinion explaining why he was joining White. He said he was joining White because “I cannot say that conduct condemned for hundreds of years has now become a fundamental right.”

Powell strongly hinted that he would not vote to uphold such laws in future cases if lawyers argued that excessive prison terms for homosexual acts violated the constitutional prohibition against cruel and unusual punishment.

A 20-Year Sentence

Powell, sources said, believed that a homosexual might be able to argue that his or her sexual orientation was part of his or her natural being, comparing it to the way drug addicts can argue their addiction is beyond their control. Thus, in his view, if the state imposed criminal sanctions, especially the 20-year jail sentence Georgia set for a single act of sodomy, that would violate the cruel and unusual punishment ban in the Eighth Amendment.

Powell, sources said, dislikes anti-sodomy laws, believing that they are useless, never enforced and unenforceable. In the case before the court, Atlanta prosecutors did not press charges against Hardwick, who had been arrested after being caught in his bedroom in a sex act with another man.