Bowers v. Hardwick

This case has been overruled by Lawrence v. Texas.

The respondent, Hardwick, alleged that a Georgia state law prohibiting sodomy was unconstitutional.

In 1982, the respondent was charged with violating a Georgia statute that prohibited sodomy after committing that act with another individual in the bedroom of the respondent’s home. The District Attorney later dropped the case before trial. The respondent decided to challenge the law as unconstitutional under the Constitution of the United States. As a practicing homosexual, he claimed the law would continually subject him to arrest for private conduct. The Court of Appeals for the Eleventh Circuit heard the case and declared that the Georgia law violated the respondent’s fundamental rights. The Supreme Court granted certiorari to review the case as other circuits had come to a different conclusion.

The Georgia law read: “a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”

The Court held that the Georgia law prohibiting sodomy was constitutional.

The Court framed the issue on whether there was a constitutionally protected right for homosexuals to practice sodomy. The Court found that there was no such constitutionally protected right. Drawing on precedent, the Court defined fundamental rights as those necessary for liberty and justice and those deeply rooted in history and tradition. The Court reasoned that there was no history or tradition of acceptance for homosexual conduct. Rather, laws banning sodomy were a historical norm and still existed in 24 States. The Court took a very cautious view to expanding the Due Process Clause to allow for a new fundamental right here as that is when the Court “comes nearest to illegitimacy.”

The Court also refused to recognize any protection grounded in the fact that the conduct occurred in the respondent’s home. The Court emphasized that illegal conduct is not made legal merely because it is conducted in the privacy of the home, as demonstrated by laws against drugs, stolen property or sexual crimes.

Concurring Opinions:

Chief Justice Burger issued a concurrence to emphasize the long history of proscriptions against sodomy.

Justice Powell issued a concurrence agreeing with the Court, but stating that the Georgia law, which allowed for a penalty of up to twenty years for a violation, presented a potential violation of the Eighth Amendment, which prohibits cruel and unusual punishment. As the respondent here was not taken to trial and did not raise this in his challenge, it was not for consideration in this case.

Dissenting Opinions:

Justice Blackmun (joined by Justice Brennan, Justice Marshall, and Justice Stevens) issued a dissent heavily criticizing the majority. They found that the right for consideration was not the right to sodomy, but rather the right to be “let alone.” The dissent emphasized that a longstanding history of prohibition is not sufficient, without further justification, to support a current law. It was also noted that the Georgia law not only prohibited homosexual conduct, which was the only context addressed by the majority, but also sexual conduct between heterosexual persons. The dissent also stressed that the majority should have considered the Eighth Amendment (prohibiting cruel and unusual punishment), the Ninth Amendment (that the enumeration of rights in the Constitution does not detract from other rights retained by the people), and the Equal Protection Clause of the Fourteenth Amendment. In looking to precedent, the dissent found that there was protection for a sphere of individual liberty that included decisional freedom for highly personal and life-altering issues and special freedom for particular areas, such as the home.

Justice Stevens (joined by Justice Brennan and Justice Marshall) issued a dissent stating that the State could not prohibit the described conduct at all. There was already precedent granting a sphere of liberty to married persons in their choices regarding sexual conduct. As the law could not be applied in all contexts, the State would need to show a neutral and legitimate interest in applying it only to select groups. The State failed to meet this burden and therefore the law should be unconstitutional.

From the majority opinion:

“[O]therwise 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 where they are committed at home.” Page 3 (195).

“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.” Page 4 (196).

From dissenting opinions:

“’Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of the government’…First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make…Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged…” (Page 203).

“Only the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.’” (Page 205).

“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.” (Page 206)