Bowers v. Hardwick
After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.
Held: The Georgia statute is constitutional. Pp. 190-196.
(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 190-191.
(b) Against a background in which many States have criminalized sodomy and still do, 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. Pp. 191-194.
(c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 194-195.
(d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, 394 U.S. 557, distinguished. Pp. 195-196.
760 F.2d 1202, reversed.
White, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, and O'Connor, JJ., joined. Burger, C. J., and Powell, J., filed concurring opinions. Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined.
Michael E. Hobbs, Senior Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the briefs were Michael J. Bowers, Attorney General, pro se, Marion O. Gordon, First Assistant Attorney General, and Daryl A. Robinson, Senior Assistant Attorney General.
Laurence H. Tribe argued the cause for respondent Hardwick. With him on the brief were Kathleen M. Sullivan and Kathleen L. Wilde.[*]
Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Howard L. Zwickel, Charles R. Fraser, and Sanford M. Cohen, Assistant Attorneys General, and John Van de Kamp, Attorney General of California; for the American Jewish Congress by Daniel D. Levenson, David Cohen, and Frederick Mandel; for the American Psychological Association et al. by Margaret Farrell Ewing, Donald N. Bersoff, Anne Simon, Nadine Taub, and Herbert Semmel; for the Association of the Bar of the City of New York by Steven A. Rosen; for the National Organization for Women by John S. L. Katz; and for the Presbyterian Church (U. S. A.) et al. by Jeffrey O. Bramlett.
Briefs of amici curiae were filed for the Lesbian Rights Project et al. by Mary C. Dunlap; and for the National Gay Rights Advocates et al. by Edward P Errante, Leonard Graff, and Jay Kohorn.
^ . Briefs of amici curiae urging reversal were filed for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Rutherford Institute et al. by W. Charles Bundren, Guy O. Farley, Jr., George M. Weaver, William B. Hollberg, Wendell R. Bird, John W Whitehead, Thomas O. Kotouc, and Alfred Lindh; and for David Robinson, Jr., pro se.