Caseflicks

Supreme Court of the United States • 1986

Bowers v. Hardwick

478 U.S. 186 | 106 S. Ct. 2841 | 92 L. Ed. 2d 140 | 1986 U.S. LEXIS 123

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Takeaway

In short, Bowers held that the Constitution did not protect consensual homosexual sodomy as a fundamental liberty and allowed states to criminalize it based on traditional moral judgments; the decision was later overruled by Lawrence v. Texas.

Background

In 1982, Michael Hardwick was charged under Georgia’s sodomy statute after allegedly engaging in consensual sodomy with another adult man in Hardwick’s bedroom. The statute broadly criminalized oral and anal sexual acts and authorized imprisonment from one to twenty years. The district attorney chose not to present the charge to a grand jury unless further evidence emerged.

Hardwick then brought a federal declaratory action challenging the statute as applied to consensual homosexual sodomy. He alleged that, as a practicing homosexual, the statute placed him in imminent danger of arrest. The Federal District Court dismissed the complaint for failure to state a claim, relying on the Court’s earlier summary affirmance in Doe v. Commonwealth’s Attorney.

A divided Eleventh Circuit reversed. It held that Doe did not control and that consensual homosexual activity in private was protected by the Ninth Amendment and the Fourteenth Amendment’s Due Process Clause. The court directed that Georgia would have to demonstrate a compelling interest and narrow tailoring. The Supreme Court granted certiorari and reversed.

Issues

Issue #1

Whether the Due Process Clause protects a fundamental right for homosexual adults to engage in consensual sodomy.

Holding

No. The Constitution does not recognize a fundamental right to engage in consensual homosexual sodomy.

Reasoning

The Court framed the claim narrowly: not as a general right of privacy or intimate association, but as a claimed fundamental right of homosexual persons to engage in sodomy. Under that framing, the privacy decisions involving marriage, procreation, contraception, abortion, child rearing, and family relationships did not establish the asserted right. The Court found no demonstrated connection between homosexual sodomy and the family, marriage, or procreation interests recognized in those cases.

The Court applied its substantive-due-process formulations for identifying fundamental liberties: rights that are implicit in the concept of ordered liberty or deeply rooted in the Nation’s history and tradition. It concluded that consensual homosexual sodomy met neither test because sodomy prohibitions had ancient roots, were offenses at common law, and were widely criminalized when the Bill of Rights and Fourteenth Amendment were ratified.

The Court also stressed institutional restraint. In its view, recognizing an unenumerated fundamental right requires caution because such a decision risks substituting judicial value judgments for the choices of state legislatures. The asserted right lacked sufficient grounding in constitutional text, structure, or historical tradition to overcome that caution.

Issue #2

Whether the privacy of Hardwick’s home independently insulated consensual homosexual sodomy from criminal prohibition.

Holding

No. The fact that the conduct occurred in a home did not create a constitutional right to engage in it.

Reasoning

Hardwick relied on Stanley v. Georgia, which protected private possession of obscene materials in the home. The Court distinguished Stanley as resting firmly on First Amendment interests in receiving information and ideas, whereas the claimed right to homosexual sodomy had no comparable textual constitutional foundation.

The Court reasoned that conduct does not become constitutionally immune merely because it takes place at home. It noted that the law may reach private possession or use of illegal drugs, firearms, and stolen goods. The Court further worried that a broad constitutional protection for consensual adult sexual activity would be difficult to confine without also calling into question laws addressing adultery, incest, and other sexual conduct.

Issue #3

Whether Georgia’s prohibition of consensual homosexual sodomy lacked even a rational basis because it rested on moral disapproval.

Holding

No. A State may rely on moral judgments in enacting criminal laws, and moral disapproval was an adequate basis for Georgia’s statute under the Court’s due-process analysis.

Reasoning

Hardwick argued that the statute lacked a rational basis apart from the majority’s belief that homosexual sodomy was immoral and unacceptable. The Court rejected the premise that moral judgments are categorically insufficient to support legislation, observing that many laws reflect society’s moral choices.

Because the Court declined to treat homosexual sodomy as a fundamental right, it did not apply heightened scrutiny. It concluded that the State’s moral judgment against the conduct supplied a sufficient basis to sustain the law against the due-process challenge.

Concurrences

Chief Justice Burger

Reasoning

Chief Justice Burger joined the Court’s opinion but wrote to emphasize the depth of the historical condemnation of sodomy. He traced prohibitions from Roman law through English common law and Georgia’s own longstanding statute, and he described the condemnation as rooted in Judeo-Christian moral and ethical traditions.

For the Chief Justice, recognizing homosexual sodomy as a fundamental right would discard millennia of moral teaching. He viewed the case principally as one about the State’s legislative authority and found nothing in the Constitution that withdrew Georgia’s power to criminalize the conduct.

Justice Powell

Reasoning

Justice Powell agreed that the Due Process Clause did not establish the fundamental right claimed by Hardwick. He nevertheless noted that Georgia’s authorized penalty—up to twenty years’ imprisonment for a single private, consensual act—raised a serious potential issue under the Eighth Amendment’s prohibition on cruel and unusual punishments.

That Eighth Amendment question was not before the Court because Hardwick had not been tried, convicted, or sentenced, and had not raised the issue below. Justice Powell therefore joined the judgment while reserving the possibility that an actual lengthy sentence under the statute could be unconstitutional.

Dissents

Justice Blackmun

Reasoning

Justice Blackmun argued that the majority distorted the issue by treating the case as one about a specific right to homosexual sodomy. In his view, the case concerned the broader liberty interest in being let alone: the right of adults to make highly personal choices about private, consensual sexual intimacy without government intrusion.

The Georgia statute was written broadly to prohibit specified sexual acts without regard to the sex, marital status, or sexual orientation of the participants. Justice Blackmun maintained that the majority’s exclusive focus on homosexual conduct obscured both the statute’s actual sweep and Hardwick’s claim that the State had invaded protected interests in privacy and intimate association.

He understood the Court’s privacy precedents to protect not only family formation and reproduction, but also the capacity to define one’s identity through intimate personal relationships. Sexual intimacy, he argued, is central to human personality and emotional life, and the fact that an act occurs in the home reinforces rather than diminishes the constitutional interest in autonomy and privacy.

Justice Blackmun also rejected history and moral condemnation as sufficient justifications. Longstanding traditions can conflict with constitutional liberty, as cases involving racial segregation and interracial marriage demonstrate. Religious disapproval, public intolerance, and discomfort with private conduct that harms no one could not, in his view, justify criminal punishment.

Finally, he emphasized the procedural posture. Because the case came on a motion to dismiss, the Court should not have assumed that Georgia’s asserted health and welfare rationales were factually supported. At minimum, Hardwick had pleaded a viable constitutional claim that should have proceeded beyond dismissal.

Justice Stevens

Reasoning

Justice Stevens argued that the Court’s reasoning applied equally to heterosexual and homosexual sodomy because Georgia’s statute prohibited the conduct without distinguishing between same-sex and different-sex partners. The historical sources on which the majority relied likewise condemned heterosexual as well as homosexual sodomy, including conduct within marriage.

He maintained that Griswold, Eisenstadt, and Carey established that married and unmarried adults have protected liberty interests in making private, nonprocreative sexual choices. Georgia therefore could not constitutionally enforce its sodomy law as a total ban on the conduct described in the statute, particularly as to married couples and unmarried heterosexual adults.

If Georgia could not enforce the law generally, Justice Stevens reasoned, it needed a neutral and legitimate justification for selectively applying it to homosexuals. Neither the State nor the Court identified such a justification. Habitual dislike, ignorance, or moral disapproval of a disfavored group could not support selective criminal enforcement.

The State’s long record of nonenforcement further undermined its asserted justification. Justice Stevens concluded that, at the pleading stage, Hardwick had plainly alleged a constitutional claim and that dismissing the complaint was unwarranted.