Retired Supreme Court justice Lewis F. Powell Jr. told a group of law students last week that he regrets his 1986 vote upholding a Georgia statute that made homosexual sodomy a criminal offense.
Powell, who retired in 1987, provided the fifth vote to uphold the law and reject arguments that the constitutional right to privacy covers homosexual conduct. Powell later acknowledged that he had initially voted to strike down the statute but then switched his vote to join with four conservative justices in upholding it.
"I think I probably made a mistake in that one," Powell told a group of New York University law students, according to a story prepared for Monday's edition of the National Law Journal.
In an interview yesterday, Powell confirmed that he made the brief remarks when asked whether there was "any decision I made I had doubts about in retrospect."
The case, Bowers v. Hardwick, involved a Georgia man, Michael Hardwick, who was charged with criminal sodomy with a man in his bedroom. The matter was dropped but Hardwick then brought suit challenging the statute's constitutionality.
In rejecting his claim, Justice Byron R. White cited the "ancient roots" of proscriptions against homosexual sodomy and the fact that it remained criminal in 24 states and the District of Columbia.
Powell, in a brief concurring opinion, agreed that "there is no fundamental right" to engage in homosexual conduct but noted that Hardwick had not been prosecuted, "much less convicted and sentenced."
Powell said yesterday that the case was a "close call" and that his vote was based on the fact that the statute had not been enforced for several decades. "That case was not a major case, and one of the reasons I voted the way I did was the case was a frivolous case" brought "just to see what the court would do" on the subject, he said.
"So far as I'm concerned it's just a part of my past and not very important," he said. "I don't suppose I've devoted half an hour" to thinking about the decision since it was made.
Powell's reservations notwithstanding, the court seems highly unlikely to disturb its ruling in Bowers with Powell's replacement by Justice Anthony M. Kennedy and the addition of Justice David H. Souter to take the place of retired justice William J. Brennan Jr., who was one of the four dissenters in the case.
Gay rights activists say the Bowers decision has been used to justify sodomy prosecutions, particularly in the military, and to reject arguments for equal protection for homosexuals. For example, said William Rubenstein, director of the American Civil Liberties Union's Lesbian and Gay Rights Project, Dallas police cited the state's sodomy law and the Bowers case as a basis for not allowing a lesbian to join the force.
Powell's comments, he said, are "an instance where the old axiom 'Better late than never' isn't true. It's good that we have his vote now. It's too bad that it's now."
But Harvard Law School professor Laurence H. Tribe, who argued the case on behalf of Hardwick, said Powell's second thoughts could undercut the moral force of the opinion. "The fact that a respected jurist who is indispensable to the majority conceded that on sober second thought he was probably wrong certainly will affect the way that future generations look at the decision," he said.