Bowers v. Hardwick
478 U.S. 186
Case Year: 1986
Case Ruling: 5-4, Reversed
Opinion Justice: White
Court Opinion Joiner(s):
Burger, O'Connor, Powell, Rehnquist
1st Concurring Opinion
1st Dissenting Opinion
Joiner(s): Brennan, Marshall, Stevens
2nd Concurring Opinion
2nd Dissenting Opinion
Joiner(s): Brennan, Marshall
3rd Concurring Opinion
3rd Dissenting Opinion
Other Concurring Opinions:
In August 1982 a police officer appeared at Michael Hardwick's residence to serve him with an arrest warrant for failure to keep a court date. According to the officer, one of Hardwick's housemates answered the door. He told the officer that he did not know if Hardwick was home, but that the officer was free to enter and look for him. As the officer walked down the hallway, he passed a partially open bedroom door and observed Hardwick engaged in sodomy with another man. The officer arrested Hardwick for violating a Georgia law that prohibited the practice of oral or anal sex. The district attorney decided not to pursue the matter, but Hardwick and his ACLU attorneys challenged the law, asserting that it violated the fundamental right to privacy as articulated in Griswold v. Connecticut and should be subject to strict constitutional scrutiny. After the court of appeals ruled in Hardwick's favor, the state asked the Supreme Court to review the case.
At first, the Supreme Court could not muster the necessary four votes to hear the case. But, after Justice Byron R. White circulated an opinion to his colleagues, dissenting from the denial of certiorari, a sufficient number of justices agreed to review it. In particular, they granted certiorari to address this question: Did the court of appeals err in concluding that Georgia's sodomy statute infringes upon the fundamental rights of homosexuals and in requiring the state to demonstrate a compelling interest to support the constitutionality of the statute? The majority opinion deals exclusively with "consensual homosexual sodomy," expressing "no opinion . . . on other acts of sodomy."
JUSTICE WHITE DELIVERED THE OPINION OF 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. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.
We first register our disagreement . . . with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. . . .
. . . [N]one of the rights announced in . . . [past] cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy. . . .
Precedent aside, however, respondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. . . .
Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. . . . [I]t was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if [they] were sacrificed.". . . [F]undamental liberties . . . are characterized as those . . . that are "deeply rooted in this Nation's history and tradition."
It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights. . . . In fact, until 1961, all 50 States outlawed sodomy, and today 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, 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. Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clause of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.
Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one's home. . . . Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law when they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. 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. We are unwilling to start down that road. . . .
Accordingly, the judgment of the Court of Appeals is
CHIEF JUSTICE BURGER, CONCURRING.
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.
As the Court notes, the proscriptions against sodomy have very "ancient roots." Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
This is essentially not a question of personal "preferences" but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.
JUSTICE POWELL, CONCURRING.
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. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct-certainly a sentence of long duration-would create a serious Eighth Amendment issue. Under the Georgia statute a single act of sodomy, even in the private setting of a home, is a felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, first-degree arson, and robbery.
In this case, however, respondent has not been tried, much less convicted and sentenced. Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us.
JUSTICE BLACKMUN, WITH WHOM JUSTICE BRENNAN, JUSTICE MARSHALL, AND JUSTICE STEVENS JOIN, DISSENTING.
This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, thanStanley v. Georgia (1969) was about a fundamental right to watch obscene movies, or Katz v. United States (1967) was about a fundamental right to place interstate bets from a telephone booth. 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 (1928) (Brandeis, J., dissenting). . . . In its haste to reverse the Court of Appeals and hold that the Constitution does not "confe[r] a fundamental right upon homosexuals to engage in sodomy," the Court relegates the actual statute being challenged to a footnote and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.
First, the Court's almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. . . . The sex or status of the persons who engage in the act is irrelevant as a matter of state law. . . . Michael Hardwick's standing may rest in significant part on Georgia's apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals. But his claim that . . . [the law] involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation.
Second, I disagree with the Court's refusal to consider whether . . . [the law] runs afoul of the . . . Ninth Amendment. . . . Respondent's complaint expressly invoked the Ninth Amendment and he relied heavily before this Court on Griswold v. Connecticut (1965), which identifies that Amendment as one of the specific constitutional provisions giving "life and substance" to our understanding of privacy. . . . I believe that Hardwick has stated a cognizable claim that . . . [the law] interferes with constitutionally protected interests in privacy and freedom of intimate association. . . .
The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference "bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.". . .
In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: "There can be no assumption that today's majority is 'right' and the Amish and others like them are 'wrong.' A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different." Wisconsin v. Yoder (1972). The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.
The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court's treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there. . . .
The Court's interpretation of the pivotal case of Stanley v. Georgia (1969) is entirely unconvincing. Stanley held that Georgia's undoubted power to punish the public distribution of constitutionally unprotected, obscene material did not permit the State to punish the private possession of such material. According to the majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed, sheds no light on cases not involving printed materials. But that is not whatStanley said. Rather, the Stanley Court anchored its holding in the Fourth Amendment's special protection for the individual in his home. . . .
The central place that Stanley gives Justice Brandeis' dissent in Olmstead, a case raising no First Amendment claim, shows that Stanley rested as much on the Court's understanding of the Fourth Amendment as it did on the First. . . . [T]hus I cannot agree with the Court's statement that "[t]he right pressed upon us here has no . . . support in the text of the Constitution." 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. . . .
It took but three years for the Court to see the error in its analysis in Minersville School District v. Gobitis  and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. See West Virginia Board of Education v. Barnette (1943). 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. Because I think the Court today betrays those values, I dissent.
JUSTICE STEVENS, WITH WHOM JUSTICES BRENNAN AND JUSTICE MARSHALL JOIN, DISSENTING.
Because the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: 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? The two questions merit separate discussion.
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 (1965). Moreover, this protection extends to intimate choices by unmarried as well as married persons. . . .
. . . The essential "liberty" that animated the development of the law in cases like Griswold . . . surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.
Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within "the sacred precincts of marital bedrooms," Griswold or, indeed, between unmarried heterosexual adults. . . . If the Georgia statute cannot be enforced as it is written-if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia's citizens-the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in "liberty" that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.
The first possibility is plainly unacceptable. Although the meaning of the principle that "all men are created equal" is not always clear, it surely must mean that every free citizen has the same interest in "liberty" that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.
The second possibility is similarly unacceptable. 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. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable." But the Georgia electorate has expressed no such belief-instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment. . . .
Both the Georgia statute and the Georgia prosecutor thus completely fail to provide the Court with any support for the conclusion that homosexual sodomy, simpliciter, is considered unacceptable conduct in that State, and that the burden of justifying a selective application of the generally applicable law has been met.