Harold Anthony Lloyd (Wake Forest University School of Law) has posted Bowers v. Hardwick Postmortems at Forty: Timely Dissections of Its Tradition, Enumeration, and Other Errors on SSRN. Here is the abstract:
The fortieth anniversary of Bowers v. Hardwick, 478 U.S. 186 (1986), and troubling recent opinions at the Court call for current Hardwick postmortems. As this Article notes, Mahmoud v. Taylor, 145 S. Ct. 2332 (2025) and a concurrence in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 330-336 (2022) (Thomas, J., concurring), suggest a potential willingness of the Court to revisit legal protections for gay people. If this involves resurrecting Hardwick, this would resurrect Hardwick’s attempted subordination of our founding traditions including the founders’ tradition affirming the self-evident equality of all persons as proclaimed by the Declaration of Independence and as further clarified by Lincoln.
As discussed, Hardwick invoked a purported “Judeao-Christian” anti-homosexual sodomy tradition to announce the Court’s inability to “announce” a “fundamental right to engage in homosexual sodomy.” The Court thus failed in its obligation to perform a much more substantive analysis of multiple enumerated general constitutional provisions protecting the accused in light of the core, applicable founders’ tradition. Such multiple enumerated general provisions included equal protection, due process, freedom of assembly, freedom of expression, the right to be secure in one’s home, and various Eighth Amendment rights. As explored in this Article, the founders’ tradition provided the proper context to interpret the linguistic meaning of these general provisions. The founders’ tradition also provided the proper grounds supporting construction of the legal meaning of such general provisions. This included any necessary extended construction where linguistic meaning was either indeterminate or otherwise deficient and thus required assistance. With the relevant constitutional text so interpreted and construed using the founders’ tradition rather than Hardwick’s inappropriate tradition, the accused had multiple protections and remedies under multiple enumerated general constitutional provisions with no need for any specific enumeration of any “right to engage in homosexual sodomy.” Such enumeration ploy by the Court thus failed under proper tradition and other analysis.
As also discussed, any tradition must be proven where dubious. The Greek and Hebrew of pertinent Old and New Testament texts reasonably taken as foundational tradition texts rebut the Court’s claims of any “firmly rooted” “Judeao-Christian” anti-homosexual sodomy tradition. Hence, Hardwick collapsed under claims of its purportedly firm tradition as well as under the founders’ core and truly firm tradition. Its revenants would similarly collapse.