Bowers v. Hardwick
478 U.S. 186 (1986)
Rule of Law:
The U.S. Constitution does not confer a fundamental right to engage in homosexual sodomy. A state law criminalizing such conduct, even when private and consensual, does not violate the substantive due process rights of the Fourteenth Amendment.
Facts:
- Michael Hardwick, an adult male, engaged in a consensual act of sodomy with another adult male.
- The act took place inside the bedroom of Hardwick's private home in Georgia.
- A Georgia police officer, who had entered the home to serve Hardwick with a warrant for a separate, unrelated offense, observed the sexual act.
- Hardwick was arrested and charged with violating Georgia's criminal sodomy statute.
- The local District Attorney subsequently decided not to present the case to a grand jury, but Hardwick remained a practicing homosexual who feared future prosecution under the statute.
Procedural Posture:
- After being charged, Michael Hardwick filed a lawsuit in the U.S. District Court for the Northern District of Georgia against Michael J. Bowers, the Attorney General of Georgia, seeking a declaratory judgment that the state's sodomy statute was unconstitutional.
- The District Court, a court of first instance, granted the state's motion to dismiss the lawsuit for failure to state a claim.
- Hardwick, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Eleventh Circuit, an intermediate appellate court.
- A divided panel of the Eleventh Circuit reversed the District Court's judgment, holding that the Georgia statute violated Hardwick's fundamental constitutional rights.
- Bowers, as petitioner, successfully petitioned the U.S. Supreme Court for a writ of certiorari to review the Eleventh Circuit's decision.
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Issue:
Does a state statute criminalizing consensual sodomy violate the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment when applied to homosexuals?
Opinions:
Majority - Justice White
No. The Federal Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. The right to privacy recognized in prior cases concerning child-rearing, marriage, procreation, and abortion does not extend to all private sexual conduct between consenting adults. Those established rights bear no resemblance to the right asserted here. To be considered fundamental, a right must be 'implicit in the concept of ordered liberty' or 'deeply rooted in this Nation's history and tradition.' Proscriptions against sodomy have ancient roots and were codified in the laws of the original thirteen states and a majority of states when the Fourteenth Amendment was ratified. Therefore, there is no historical or traditional basis for declaring it a fundamental right. The Court must resist creating new fundamental rights not found in the Constitution's text or history, and a state law based on majority notions of morality is sufficient to pass rational basis review.
Concurring - Chief Justice Burger
No. In constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy. Condemnation of these practices is firmly rooted in millennia of Judeo-Christian moral and ethical standards and Western civilization's legal history, from Roman law to English common law. To hold that this conduct is protected as a fundamental right would be to cast aside this extensive history of moral teaching. The legislative authority of a state to enact such a statute is not deprived by the Constitution.
Concurring - Justice Powell
No. There is no fundamental right under the Due Process Clause to engage in consensual sodomy. However, the Georgia statute authorizes a prison sentence of up to 20 years for a single, private, consensual act. A lengthy prison sentence for such conduct would create a serious Eighth Amendment issue regarding cruel and unusual punishment. Because respondent Hardwick has not been tried, convicted, or sentenced, and did not raise an Eighth Amendment claim, that constitutional argument is not before the Court.
Dissenting - Justice Blackmun
Yes. The Georgia statute violates constitutionally protected interests in privacy and freedom of intimate association. This case is not about a 'fundamental right to engage in homosexual sodomy,' but about 'the right to be let alone.' The constitutional right to privacy protects intimate, personal decisions and the sanctity of the home from government intrusion. The statute infringes on the decisional aspect of privacy, which protects an individual's choices about intimate relationships, and the spatial aspect, which provides special protection to activities within the home. The state’s justification, based on the majority’s moral condemnation of the conduct, is insufficient to justify infringing on this fundamental liberty interest.
Dissenting - Justice Stevens
Yes. The Georgia statute, as written, prohibits sodomy regardless of the sex or marital status of the participants. Precedent, such as Griswold v. Connecticut, establishes that a state may not prohibit such conduct between a married couple. If the statute is unconstitutional as applied to the vast majority of Georgia's citizens (heterosexuals, married and unmarried), the state cannot selectively enforce it against homosexuals without a neutral and legitimate justification. The state has offered no such justification beyond the presumed belief that homosexual sodomy is immoral, which is insufficient, especially when the state's own law and prosecutorial actions do not reflect a policy focused exclusively on homosexuals.
Analysis:
This decision significantly narrowed the judicially-created right to privacy, holding that it did not protect private, consensual sexual activity between homosexuals. By refusing to recognize this activity as a fundamental right, the Court subjected the Georgia law to only rational basis review, which it easily passed based on a justification of public morality. The ruling was a major setback for LGBTQ+ rights, validating state laws that criminalized same-sex relationships and influencing legal battles over employment, housing, and family law for years. This precedent stood for 17 years until it was explicitly overruled by the Court in Lawrence v. Texas (2003).
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