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Bowers v. Hardwick

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

    Brief Fact Summary. The Respondent, Hardwick (Respondent), was convicted of violating Georgia’s sodomy statute by committing that act with another male in the Respondent’s home. The Respondent challenged the statute’s constitutionality insofar as it criminalized consensual sodomy.

    Synopsis of Rule of Law. There is no constitutional right to homosexual sodomy.

    Facts. The Respondent was arrested in his home while engaging in consensual homosexual contact. The Respondent admits to being a practicing homosexual and thus Georgia’s sodomy statute puts him at imminent risk of arrest.

    Issue. Is there a constitutional right to homosexual sodomy?

    Held. No. Appeals Court ruling reversed.
    Justice Byron White (J. White) argues that the nexus between sex and family, marriage, and procreation found in the previous sexual liberty cases before the United States Supreme Court (Supreme Court) is lacking in the instance of homosexual conduct.
    Furthermore, there is a lengthy history of Anglo-American law criminalizing sodomy. While J. White does not assert whether sodomy laws are wise or even desirable, he asserts that it is not the courts’ place to make that decision, rather it is the States’.

    Dissent.
    Justice Harry Blackmun (J. Blackmun) argues that the Supreme Court has misconstrued the question as whether there is a right to homosexual sodomy, rather than if the State can control all such activity even to heterosexuals and married persons. According to J. Blackmun, the case presents a privacy issue first and foremost.
    Justice John Paul Stevens (J. Stevens) focuses largely on the fact the statute does not create a class of homosexuals to be singled out, but rather affects all sexually active adults, even married couples.
    Concurrence.
    Chief Justice William Burger (J. Burger) concurs noting that he believes this is not a question of preferences, but of the power of the State to enact the statute, which is based in a long historical tradition.
    Justice Lewis Powell (J. Powell) agrees there is no fundamental right implicated, but believes there might be a significant Eighth Amendment Constitutional challenge if one were before the Supreme Court.

    Discussion. Bowers v. Hardwick’s majority argument is easily overturned by the arguments of the dissenters. It is clear that the statute in question is not directed toward homosexual sodomy alone, but sodomy in general. Criminalizing sexual activity between married individuals fits squarely within the reproductive and marital privacy cases of the Supreme Court.


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