Bowers v. Hardwick

United States Supreme Court

478 U.S. 186; 106 S.Ct. 2841; 92 L.Ed. 2d. 140 (1986)

 

            In this case the Court considers the constitutionality of a state sodomy statute as applied to homosexual conduct.

 

Justice White delivered the opinion of the Court.

 

            In August 1982, respondent was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of respondent’s home. After a preliminary hearing, the District Attorney decided not to present the matter to grand jury unless further evidence developed.

 

            Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution. The District Court granted the defendants’ motion to dismiss [relying on Doe v. Commonwealth’s Attorney (1976)]. ...

 

            A divided panel of the Court of Appeals for the Eleventh Circuit reversed.... Relying on our decisions in Griswold v. Connecticut, ... Eisenstadt v. Baird, ... Stanley v. Georgia, ... and Roe v. Wade, ... the court went on to hold that the Georgia statute violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of the state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The case was remanded for trial, at which, to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end.

 

            Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case, we granted the State’s petition for certiorari. ...

 

            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. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state court decisions invalidating those laws on state constitutional grounds. 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 and with respondent that the Court’s prior cases have construed the Constitution to confer a right of privacy that contends to homosexual sodomy and for all intents and purposes have decided this case. ...

 

            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. 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. Indeed, the Court’s opinion in Carey [v. Population Services] twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. ...

 

            Precedent aside, however, respondent would have us announce, as the Court of Appeals did, 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 of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. ...

 

            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 v. Connecticut ... (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of the record liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland ... where they are characterized [by Justice Powell] 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. ... Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. ... 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. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clause of the Fifth and Fourteenth Amendments. 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: “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.” ...

 

            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. 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. ... 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. ...

 

            Accordingly, the judgment of the Court of Appeals is 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.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. ... During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. ... Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, an heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” ... The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. 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 that 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. ...

 

 

Justice Blackmun, with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.

 

            This case ... is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” ...

 

            The statute at issue denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The Court concludes that [it] is valid essentially because “the laws of ... many States ... still make such conduct illegal and have done so for a very long time.” ... But the fact that the moral judgments expressed by statutes like [such] may be “natural and familiar ... ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” ...

 

            I believe that “[i]t is revolting to have not better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” ... 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 its haste to reverse the Court of Appeals and hold that the Constitution does not “confe[r] a fundamental right upon homosexuals to engage in sodomy,” the Court relegates the actual statute being challenged to a footnote and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.

 

            First, the Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. ... Rather, Georgia has provided that “[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 sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose for Georgia’s 1968 enactment ... that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity. I therefore see no basis for the Court’s decision to treat this case as an “as applied” challenge to Sec. 16-6-2, ... or for Georgia’s attempt, both in its brief and at oral argument, to defend Sec. 16-6-2 solely on the grounds that it prohibits homosexual activity. Michael Hardwick’s standing may rest in significant part on Georgia’s apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals. ... But his claim that Sec. 16-6-2 involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend ... on his sexual orientation.

 

            Until 1968, Georgia defined sodomy as “the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” ... In Thompson v. Aldredge ... (1939), the Georgia Supreme Court held that [the law] did not prohibit lesbian activity. And in Riley v. Garrett ... (1963), the Georgia Supreme Court held that [the law] did not prohibit heterosexual cunnilingus. Georgia passed the act-specific statute currently in force “perhaps in response to the restrictive court decisions such as Riley.” ...

 

            Second, I disagree with the Court’s refusal to consider whether [the sodomy law] runs afoul of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment. ... Respondent’s complaint expressly invoked the Ninth Amendment, ... and he relied heavily before this Court on Griswold v. Connecticut ... (1965), which identifies that Amendment as one of the specific constitutional provisions giving “life and substance” to our understanding of privacy. ... More importantly, the procedural posture of the case requires that we affirm the Court of Appeals’ judgment if there is any ground on which respondent may be entitled to relief. ...

 

            Despite historical views of homosexuality, it is no longer viewed by mental health professionals as a “disease” or disorder. ... But, obviously, neither is it simply a matter of deliberate personal election. Homosexual orientation may well form part of the very fiber of an individual’s personality. Consequently, ... the Eighth Amendment may pose a constitutional barrier to sending an individual to prison for acting on that attraction regardless of the circumstances. An individual’s ability to make constitutionally protected “decisions concerning sexual relations,” ... is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy.

 

            With respect to the Equal Protection Clause’s applicability to [the challenged law], I note that Georgia’s exclusive stress before this Court on its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may arise serious questions of discriminatory enforcement, questions that cannot be disposed of before the Court on a motion to dismiss. ... The legislature having decided that the sex of the participants is irrelevant to the legality of the acts, I do not see why the State can defend [the law] on the ground that individuals singled out for prosecution are of the same sex as their partners. Thus, under the circumstances of this case, a claim under the Equal Protection Clause may well be available without having to reach the more controversial question whether homosexuals are a suspect class. ...

 

            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 v. East Cleveland, ... against “clos[ing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause.” 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. “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.’ ” ...

 

            ... 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 treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there. ...

 

            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. ...

 

 

Justice Stevens, with whom Justice Brennan and Justice Marshall join, dissenting. ...