Michael Hardwick and Dwight Sawyer stood before the judge in Atlanta Municipal Court on August 4, 1982 during a preliminary hearing and pled not guilty to charges of sodomy and solicitation, then began to look for help. They needed someone to get them out of trouble.

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Before the next hearing, scheduled for September 14, they made trip after trip to the courthouse to request that the cases be dismissed, with no luck. A connection with a judge who might have been able to help went nowhere. On one court visit a clerk realized Hardwick’s case had been recorded incorrectly with a court date of August, not September 14. He could have been served with another warrant and arrested once again at any time on or after August 17.

Sawyer didn’t know that Hardwick had already been approached by Clint Sumrall of the American Civil Liberties Union of Georgia. Sumrall had been looking for a suitable case to test Georgia’s sodomy law.

The ACLU had its roots in the defense of birth control education, which had been imperiled by the Comstock Act of 1873, which forbade the distribution of obscenity via the mail. Gradually those free-­speech cases extended into birth control itself. As early as 1932, ACLU founders felt birth control might be a constitutionally protected right.

In its more than half century of existence, the ACLU had become an important check to the power of the state and its intrusion into private lives, particularly into sex lives. It had built its own apparatus of power, one that sought out cases it could argue to challenge the existing order. Legal mills on all sides needed human examples as they defined and refined what the law said, and what it did not say.

In its more than half century of existence, the ACLU had become an important check to the power of the state and its intrusion into private lives, particularly into sex lives.

ACLU attorney H. Judd Herndon met with both men and told them they could plead guilty as first offenders and likely face no further problems. If they pled not guilty, they risked conviction and the remote chance of a twenty-­year prison sentence—­but they could also alter the trajectory of the gay-­rights movement.

Herndon explained that the ACLU had been looking for five years for the test case that could invalidate Georgia’s sodomy law, which made it a crime for any person “to perform or submit to any sexual act involving the sex organs of one person and the mouth or anus of another.” The challenge was finding a case without sullied circumstances—­those in which a minor was involved or in which the act of sex had taken place in public—and one in which the defendant was not too frightened to take a public stand.

In the 1976 Doe sodomy case decided by the Supreme Court, the plaintiffs had chosen to remain anonymous. If someone were to go public with their case, it might encourage both straight and queer people to see sex and privacy as intimately connected and, in doing so, defuse the idea of any consensual sex as unnatural.

Sawyer retained Herndon as his lawyer, and believed that Hardwick had too. But after Sawyer had returned to Mobile, Hardwick met with a larger group of attorneys associated with Herndon who saw the potential to overturn the Georgia sodomy law.

John Sweet led the group. Raised in Cincinnati, where his family once hosted activist musician Pete Seeger, Sweet became an avid musician who performed civil-­rights protest songs, “the more radical the song the better.” He served on the Atlanta city council and worked alongside John Lewis, whom he would help to get elected to the council in 1981.

When he met Hardwick for the first time that September, Sweet convinced him that freedom and the gay-­rights movement were a struggle with an epic quality. If Hardwick pursued his right to privacy, he could change history.

Hardwick sat next to Kitty, who had stopped in Atlanta on her way back from Pennsylvania once she heard her son had been arrested. They were surrounded by ten attorneys, including Herndon, Sweet, and Louis Levenson, who laid out the possible case and its gravity.

Levenson found Hardwick quiet, circumspect, and quite sanguine about what he was doing—­about what had been done to him. You’re going to be quite notorious, he told Hardwick. Rather than try to have the charges thrown out due to the questionable status of the warrant, the ACLU attorneys wanted Hardwick tried at the superior court level. They needed a conviction to challenge the sodomy law.

What’s the worst that could happen? Hardwick wanted to know. What’s the best?

The attorneys explained that the judge could sentence him to up to twenty years if he were convicted.

“Twenty years!” his mother exclaimed. “Do you realize I’ll be dead before I see you again?” Kitty didn’t want her son to take the risk and urged him to drop the case.

The lawyers in turn urged Hardwick to think about it. They asked him to write down what had happened that day. As he weighed the consequences, he wrote about his arrest in neat block letters that leaned left.

As his story unfolded on paper, his handwriting grew larger and angled more sharply, his anger visible as it marched off the page. The arrest had traumatized him, and he hadn’t begun to process it until he put it down in words. When he was done, he realized he had been horribly mistreated.

It would have been easy to walk away, but Hardwick knew he would have to live with himself. He worked in gay clubs, wasn’t a prominent person, and could afford to give up his privacy. Not every queer person could do so. He didn’t think he would go to prison, not really.

Against his mother’s wishes, Hardwick agreed to press his case. He called John Sweet back.

“Let’s go for it,” he told Sweet.

*

Attorneys and gay-­rights advocates filled the small Courtroom No. 1 on September 14, 1982, in Atlanta Municipal Court. A few in the room laughed when a bailiff called out Hardwick’s name before Judge Howard R. Johnson sat to hear the case.

Sawyer had returned only two days before from Mobile. As far as he knew, Hardwick had not yet decided how he would plead. He had not decided either. Only then did Sawyer meet Hardwick’s attorneys: Sweet would represent Hardwick on his sodomy charge and Levenson on the marijuana charge.

Sawyer had not been offered their services, and Herndon remained his lawyer. Judge Johnson chuckled when he asked how they would plead. To the charges of possession and sodomy, both men pleaded not guilty.

Officer Torick took the stand. He had gone to serve the warrant he had taken out two weeks earlier, he said, and knocked on the front door. He testified that Hardwick’s roommate Kirk Slusser answered, and that because he had been there before, Slusser knew who he was. Torick said when he asked if Hardwick was home, Slusser said he “didn’t know” but opened the door and “told me I was welcome to come in and look for Mr. Hardwick.” Slusser had not been asked to testify so could not refute this testimony.

Torick said he went down the hallway in the house, to the second door on the left, which was open approximately three inches. In the slip of light, Torick said that he observed the men in “an act of sodomy…that being oral sex. Each of the other had each of the others’ penis in their mouths.” After he identified himself, Torick said he saw a small brown ceramic bowl with what he thought to be marijuana. Both men denied it was theirs, he said.

When he had ticketed Hardwick weeks earlier, he said he told Hardwick that he could have arrested him. He had a few people skip on warrants already. When asked, Torick said he hadn’t tried to serve the warrant to Hardwick at the Cove because he usually got busy with calls when he started his shift at 6:30 in the morning. He had not checked to see if Hardwick had dealt with the warrant before going to arrest him, Torick said.

Once inside the house, was there “any reason why you did not announce or otherwise let your presence be known?” Herndon asked.

“I was at the door approximately one to two seconds before I announced my presence,” Torick said.

Torick said Hardwick told him that he had a receipt for the fine, though the court advised people in his situation to keep all paperwork with them at all times.

“Did anything prevent you from making a call,” Herndon asked, “to ascertain whether the man’s allegations were true or not that he had appeared and paid a fine and disposed of the case?” His squad car had a radio, after all.

“Other than a busy court and a busy radio dispatcher,” Torick responded, adding that he believed the warrant was valid and that he didn’t need to check.

The judge checked in crisply: “Counsel, it doesn’t matter whether the warrant was valid or not. No charges were brought as a result of that. The charge was brought as a result of what he observed after he got there. The validity of the warrant is not in question.” The judge accepted Torick’s insistence that he had been granted access to the house by Slusser.

John Sweet rose and made a motion to dismiss Hardwick’s case as a violation of his First Amendment, Fifth Amendment, and Fourteenth Amendment rights, including his right to privacy. The judge denied the motion.

Herndon was able to get Dwight’s marijuana charge dismissed, since it was not his home and since the marijuana had not been in his hands. But Judge Johnson would not relent on the sodomy charges. Both cases would be sent up to the Superior Court of Fulton County.

As the parties left the courtroom a man approached Officer Torick and shook his hand. The man, in his fifties and a plumbing inspector for the city, had come to the hearing because he was Hardwick’s neighbor and the father of two teenage boys.

As the ACLU-­associated attorneys discussed in the coming days how to proceed, most of the coalition wanted the ACLU of Georgia to take up Hardwick’s case.

“I appreciate you cracking down,” the neighbor told Torick. The parties, the nude sunbathing, it had all become too much. Whatever privacy Hardwick had been entitled to was an afterthought.

As the ACLU-­associated attorneys discussed in the coming days how to proceed, most of the coalition wanted the ACLU of Georgia to take up Hardwick’s case. The timing seemed right. Two in the group did not agree.

Attorney Buren Batson, who had been arrested by Atlanta undercover police in 1980 for solicitation of sodomy, believed the case would fail. The other person who wanted to make the case go away was Sawyer’s attorney, Judd Herndon.

*

Fulton County Superior Court set a grand jury date of October 7, 1982, for Hardwick’s case, but before it could be presented, District Attorney Lewis Slaton had it pulled from the docket. Hardwick’s attorneys surmised that the DA’s office sensed the constitutional challenge in the works. The case in limbo, Hardwick faced the potential of prosecution for up to four years after his arrest—­until August 3, 1986.

Slaton had deployed Georgia’s sodomy law against sex workers and those engaged in public sex. He sometimes used it as a tool to induce a plea bargain in cases of sexual violence. He said he never had used the law to prosecute a queer person for having sex, if they were having sex in private.

Though he expressed distaste for “that type of conduct among homosexuals or lesbians,” he didn’t think a jury would convict Hardwick, because of the implicit right to privacy. He felt consensual sodomy should be a misdemeanor, not a felony.

The ACLU grew impatient with Slaton’s stance. Hardwick had met with them for a few hours each week as they practiced for his eventual testimony.

At one meeting, the attorneys advised Hardwick that they needed to take a calculated risk. They needed to compel prosecution, on the grounds that Hardwick did not want the case hanging over his head. But on January 7, 1983, Louis Levenson received a letter from the DA’s office that said, “unless further evidence develops, the cases will remain as not presented to the Grand Jury.”

When Slaton would not budge, Hardwick’s attorneys chose the radical course of filing a case in U.S. district court, one that charged the state’s sodomy law and Hardwick’s arrest were unconstitutional based on the Fourteenth Amendment’s due process clause and its implicit right to privacy. Because John Sweet didn’t practice in federal court, he gave the case to another ACLU attorney, Kathleen “Kathy” Wilde.

The case named Atlanta’s chief of police and the district attorney as respondents, as well as Georgia attorney general Michael Bowers. Bowers, a West Point graduate in 1963, had joined the Georgia Office of the Attorney General in the 1970s and replaced decorated World War II serviceman Arthur Bolton as AG in 1981. He carried over Bolton’s formalities of punctuality and of staying out of the press, but when it came to keeping work and private lives separate, Bowers faltered.

Hardwick’s case put Bowers into direct conflict with the law. Since January of that year, the attorney general had been involved in an extramarital affair with his secretary, Anne Davis. As far as the law was concerned, Bowers was a hypocrite.

*

Hardwick had retreated from his usual circles in the weeks after the arrest, more so as weeks became months. When he saw Sawyer out in public, they did not discuss the case. Dwight and his partner Joey had found a small apartment near Piedmont Park, and they were relieved to hear that the DA’s office did not intend to prosecute either of the men.

As of January 1983, Sawyer did not know Hardwick had decided to pursue the case in district court. They saw each other a few times more, early that year. Then Sawyer never saw Hardwick again.

Kirk Slusser had also seen Hardwick a few times after the initial flurry of court proceedings and watched him grow more angry than afraid. One day they met outside of a bar, not far from the house where Hardwick had been arrested. Slusser found him much more subdued than his usual self. They disagreed over some details about what had happened but parted, Slusser thought, on good terms. Hardwick had even said to Slusser, Let’s get together soon.

When word spread that he would take on Georgia’s odious law in court, he became a symbol of hope that the queer world’s second-­class status would change.

It never happened. Worried over his role in the unfolding passion play, Slusser left Atlanta to return to the Midwest. He had never wanted attention. It could threaten his job. It could threaten his life.

Hardwick began to withdraw from his close circle of friends. Puss never saw the inside of the Ponce house again. She had been there with her lover in the nights before the arrest. What if it had been them, instead of her friend? The consequences would have been grave for both women, but far more so for her lover.

Hardwick began to speak out more about what was right, and how he had been wronged. When word spread that he would take on Georgia’s odious law in court, he became a symbol of hope that the queer world’s second-­class status would change. He came out as a plaintiff and when he did, he became more than a cautionary tale. In Atlanta’s queer demimonde, he became a star.

______________________________

Excerpted from The Many Passions of Michael Hardwick: Sex and the Supreme Court in the Age of AIDS. Copyright ©2025 by Martin Padgett. Used with permission of the publisher, W. W. Norton & Company, Inc. All rights reserved.