BOWERS v. HARDWICK
478 U.S. 186, 106 S.Ct. 2841, 92
L.Ed.2d 140 (1986).
[Case involved an adult male who was
charged with violating Georgia's sodomy law for participating in a sexual act with another
adult male in his own home. Sodomy is defined by the law as committing or submitting to
"any sexual act involving the sex organs of one person and the mouth or anus of
another." The respondent challenged the constitutionality of the law in federal
court. The Court of Appeals held that the law "violated respondent's fundamental
rights because his homosexual activity is a private and intimate association that is
beyond the reach of state regulation."]
Justice WHITE delivered the opinion
of the Court
This case does not require a judgment
on whether laws against sodomy between consenting adults in general, or between
homosexuals in particular, are wise or desirable. [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 the Court of Appeals [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. [Pierce and Meyer] were described as dealing with child
rearing and education; [Skinner] with procreation; [Loving] with marriage; [Griswold and
Eisenstadt] with contraception; and [Roe] with abortion. The latter three cases were
interpreted as construing [due process] to confer a fundamental individual right to decide
whether or not to beget or bear a child. Accepting the decisions in these cases and the
above description of them, we think it evident that none of the rights announced in those
cases bears any resemblance to the claimed constitutional right of homosexuals to engage
in acts of sodomy, that is asserted in this case…Moreover, any claim that these cases
nevertheless stand for the proposition that any kind of private sexual conduct between
consenting adults is constitutionally insulated from state proscription is unsupportable.
Indeed, the Court's opinion in Carey twice asserted that the privacy right [did] not reach
so far.
[R]espondent 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] 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]. Among such
cases are those recognizing rights that have little or no textual support in the
constitutional language. Meyer, Prince, and Pierce fall in this category, as do the
privacy cases from Griswold to Carey. 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. In [Palko] it 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." A
different description of fundamental liberties appeared in [Moore], where they are
characterized as those liberties 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. [discussion of
the prevalence of criminalization of sodomy in the US]… 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... 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 his
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... 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 where 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.
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. This is said
to be an inadequate rationale to support the law. 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. Even
respondent makes no such claim, but insists that majority sentiments about the morality of
homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the
sodomy laws of some 25 States should be invalidated on this basis.
[Reversed.]
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." [discussion of prevalence of
subjecting homosexual conduct to state intervention throughout Western Civilization] 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] 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]. 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]. In this case however, respondent has not been tried, much less
convicted and sentenced. Moreover, respondent has not raised the Eighth Amendment issue
[below].
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,
than [Stanley] was about a fundamental right to watch obscene movies. 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." [I] believe we must analyze
respondent's claim in the light of the values that underlie the constitutional right to
privacy. If that right means anything, it means that, before Georgia can prosecute its
citizens for making choices about the most intimate aspects of their lives, it must do
more than assert that the choice they have made is an "'abominable crime not fit to
be named among Christians.'"
[In] construing the right to privacy,
the Court has proceeded along two somewhat distinct, albeit complementary, lines. First,
it has recognized a privacy interest with reference to certain decisions that are properly
for the individual to make. E.g., [Roe; Pierce.] 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. The case before us implicates both the
decisional and the spatial aspects of the right to privacy.
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." While it is true that these cases may be characterized by their connection to
protection of the family, the Court's conclusion that they extend no further than this
boundary ignores the warning in [Moore] against "clos[ing] our eyes to the basic
reasons why certain rights associated with the family have been accorded shelter under
[due process]." We protect those rights not because they contribute, in some direct
and material way, to the general public welfare, but because they form so central a part
of an individual's life. Only the most willful blindness could obscure the fact that
sexual intimacy is "a sensitive, key relationship of human [existence]…” [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 interpretation of the pivotal case of [Stanley] is entirely unconvincing.
[Stanley decision not based solely on the First Amendment.] Rather, the Stanley Court
anchored its holding in the Fourth Amendment's special protection for the individual in
his home. [T]he 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. The Court's failure to comprehend the magnitude of the liberty interests at stake
in this case leads it to slight the question whether petitioner, on behalf of the State,
has justified Georgia's infringement on these interests. I believe that neither of the two
general justifications [that] petitioner has advanced warrants dismissing respondent's
challenge for failure to state a claim.
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… [I]t is not surprising
that the record before us is barren of any evidence to support petitioner's claim. In
light of the state of the record, I see no justification for the Court's attempt to equate
the private, consensual sexual activity at issue here with the 'possession in the home of
drugs, firearms, or stolen goods,' to which Stanley refused to extend its protection.
[The] core of petitioner's defense of [the
law], however, is that respondent and others who engage in the [conduct] interfere with
Georgia's exercise of the “ 'right of the Nation and of the States to maintain a
decent society.' ” Essentially,
petitioner argues, and the Court agrees, that the fact that acts described in [the law]
"for hundreds of years, if not thousands, have been uniformly condemned as
immoral" is a sufficient reason to permit a State to ban them today. The assertion
that "traditional Judeo—Christian values proscribe" the conduct involved
cannot provide an adequate justification for [the law]. That certain, but by no means all,
religious groups condemn the behavior at issue gives the State no license to impose their
judgments on the entire citizenry. The legitimacy of secular legislation depends instead
on whether the State can advance some justification for its law beyond its conformity to
religious doctrine.
[Nor] can [the law] be justified as a
"morally neutral" exercise of Georgia’s power to "protect the public
environment," Paris Adult Theatre I. Certainly, some private behavior can affect the
fabric of society as a whole. [But there is a] difference between laws that protect public
sensibilities and those that enforce private morality…
Justice STEVENS, with whom Justice
BRENNAN and Justice MARSHALL join, dissenting.
Like the statute that is challenged
in this case, the rationale of the Court's opinion applies equally to the prohibited
conduct regardless of whether the parties who engage in it are married or unmarried, or
are of the same or different sexes. Sodomy was condemned as an odious and sinful type of
behavior during the formative period of the common law. That condemnation was equally
damning for heterosexual and homosexual sodomy. Moreover, it provided no special exemption
for married couples. [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.
I. 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 [due
process. Griswold.] Moreover, this protection extends to intimate choices by unmarried as
well as married persons. [Carey; Eisenstadt.] [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. 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 [Eisenstadt].
II. 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.. 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].