Bowers v. Hardwick

Notable Items:

Overruled by Lawrence v. Texas (2003)

Petitioner:
Respondent:
Venue: Supreme Court of the United States
Opinion of the Court: Bowers v. Hardwick (1986)

Issue(s) Before the Court:

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.

Petitioner's Claim(s):

First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for "the general public health and welfare," such as spreading communicable diseases or fostering other criminal activity.
The assertion that "traditional Judeo-Christian values proscribe" the conduct involved, Brief for Petitioner 20, cannot provide an adequate justification for § 16-6-2.

Respondent's Claim(s):

challenging the constitutionality of the [Georgia] statute insofar as it criminalized consensual sodomy.

Holding(s) and Disposition:

Held: The Georgia statute is constitutional.
... any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.
... to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. The claimed right in this case falls far short of overcoming this resistance.
The fact that homosexual conduct occurs in the privacy of the home does not affect the result.
Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws.
Disposition: 760 F.2d 1202, reversed.

Material Facts:

A full recounting of the facts is available below

Procedural History:

In August, 1982, respondent Hardwick (hereafter respondent) was charged with violating the Georgia statute criminalizing sodomy [Footnote 1] by committing that act with another adult male in the bedroom of respondent's home.
After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed.
Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. [Footnote 2]
The District Court granted the defendants' motion to dismiss for failure to state a claim, relying on Doe v. Commonwealth's Attorney for the City of Richmond, 403 F. Supp. 1199 (ED Va.1975), which this Court summarily affirmed, 425 U.S. 901 (1976).
A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 760 F.2d 1202 (1985).
... the court went on to hold that the Georgia statute violated respondent's fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.
Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case, [Footnote 3] we granted the Attorney General's petition for certiorari questioning the holding that the sodomy statute violates the fundamental rights of homosexuals.

Rationale

White Majority Opinion (Burger, Powell, Rehnquist, O'Connor)

Relying on our decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Georgia, 394 U. S. 557 (1969); and Roe v. Wade, 410 U. S. 113 (1973), the court went on to hold that the Georgia statute violated respondent's fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.
Stanley [v. Georgia] itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id. at 394 U. S. 568, n. 11.
And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.
Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.
The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.
A full description of the rationale is available below

Burger Concurrance (??)

I join the Court's opinion, but I write separately to underscore my view that, in constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy.
To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

Powell Concurrance (??)

I join the opinion of the Court. I agree with the Court that there is no fundamental right -- i.e., no substantive right under the Due Process Clause -- such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals.
The Georgia statute at issue in this case, Ga.Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy.
In this case, however, respondent has not been tried, much less convicted and sentenced. [Footnote 2/2] Moreover, respondent has not raised the Eighth Amendment issue below.
For these reasons this constitutional argument is not before us.

Blackmun Dissent (Brennan, Marshall, Stevens)

Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting).
The sex or status of the persons who engage in the act is irrelevant as a matter of state law.
In fact, to the extent I can discern a legislative purpose for Georgia's 1968 enactment of § 16-6-2, that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity.
More importantly, the procedural posture of the case requires that we affirm the Court of Appeals' judgment if there is any ground on which respondent may be entitled to relief.
Indeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy.
A State can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus.
I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do.

Stevens Dissent (Brennan, Marshall)

... first, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction?
If not, may the State save the statute by announcing that it will only enforce the law against homosexuals?
Our prior cases make two propositions abundantly clear.
First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.
Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1965).
Moreover, this protection extends to intimate choices by unmarried, as well as married, persons. Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972).
The essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive sexual conduct that others may consider offensive or immoral.
A policy of selective application must be supported by a neutral and legitimate interest -- something more substantial than a habitual dislike for, or ignorance about, the disfavored group.
The Court orders the dismissal of respondent's complaint even though the State's statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State's post hoc explanations for selective application are belied by the State's own actions.

Full Recounting of Facts

A list of the material facts is available above

Majority Full Argument

The core of the rationale is available above