BOWERS v.
MICHAEL HARDWICK, 478
478
1. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2.
After being charged with violating the
3.
He asserted that he was a practicing homosexual, that the
4.
The primary constitutional question is whether the Constitution confers
a fundamental right upon homosexuals to engage in consensual sodomy. (This is the question so says the opinion
writer for the Court).
5.
Justice White for the Court (NOTE:
Initially the Court declined to accept the case.)
6. The Court of Appeals for the Eleventh held that the
Because other Courts of
Appeals have arrived at judgments contrary to that of the Eleventh Circuit we
granted the Attorney General's petition for certiorari questioning the holding
that the sodomy statute violates the fundamental rights of homosexuals. We
agree with petitioner that the Court of Appeals erred, and hence reverse its
judgment.
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.
None of the rights announced
in those cases bears any resemblance to the [478 U.S. 186, 191] claimed
constitutional right of homosexuals to engage in acts of sodomy that is
asserted in this case. No connection
between family, marriage, or procreation on the one hand and homosexual
activity on the other has been demonstrated, either by the Court of Appeals
or by respondent. 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.
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.
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.
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, 394 U.S. 557 (1969),
where the Court held that the First Amendment prevents conviction for
possessing and reading obscene material in the privacy of one's home: "If
the First Amendment means anything, it means that a State has no business
telling a man, sitting alone in his house, what books he may read or what films
he may watch." However, 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 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.
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.
7. Reversed.
8. There is no constitutional
right under the 14th or 9th Amendment or any other to
engage in sodomy even between consenting adults.
9. The Court refused to expand
the concept of substantive constitutional rights to include sodomy.
10. 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. 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, Ga. Code Ann. 16-6-2 (1984), 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 [478 U.S.
186, 198] felony comparable in terms of the possible sentence imposed to
serious felonies such as aggravated battery, 16-5-24, first-degree arson,
16-7-60, and robbery, 16-8-40.1
In this case, however,
respondent has not been tried, much less convicted and sentenced.2 Moreover,
respondent has not raised the Eighth Amendment issue below. For these reasons
this constitutional argument is not before us.
11. 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, ante, at 191, than Stanley v.
Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene
movies, or Katz v. United States, 389 U.S. 347 (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, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
I believe we must analyze
respondent Hardwick'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 [478 U.S. 186, 200] 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, [478 U.S. 186,
204] 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 v. Wade, 410 U.S. 113 (1973); Pierce v. Society of Sisters,
268 U.S. 510 (1925). 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's interpretation of the pivotal case of Stanley v. Georgia, 394 U.S. 557 (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 what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth Amendment's special protection for the individual in his home. 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.
The assertion that
"traditional Judeo-Christian values proscribe" the conduct involved,
Brief for Petitioner 20, cannot provide an adequate justification for 16-6-2.
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.
A State might define the
contractual commitment necessary to become eligible for these benefits to
include a commitment of fidelity and then punish individuals for breaching that
contract. Moreover, a State might conclude that adultery is likely to injure third persons, in particular, spouses
and children of persons who engage in extramarital affairs. With respect to
incest, a court might well agree with respondent that the nature of familial
relationships renders true consent to incestuous activity sufficiently problematical
that a blanket prohibition of such activity [478
JUSTICE STEVENS, with whom JUSTICE 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.9 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, 381 U.S. 479
(1965). Moreover, this protection extends to intimate choices by unmarried as
well as married person.
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.
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 [478 U.S. 186, 219] 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.