Bowers v. Hardwick

Brief Fact Summary.

Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute’s constitutionality in Federal District Court.

Synopsis of Rule of Law.

The Constitution does not protect the right of gay adults to engage in private, consensual sodomy.

Facts.

Georgia police entered Hardwick’s residence to arrest him for failing to appear in court on charges of public drinking. A roommate let the police into Hardwick’s home. As police searched for Hardwick in the house, they found Hardwick and a male companion engaged in oral sex. Hardwick and his partner were arrested on charges of violating a Georgia statute that criminalized sodomy. Hardwick brought suit against the state of Georgia, claiming that the statute violated the Constitution.

Issue.

Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the Georgia statute (and the laws of many states which make such conduct illegal)?

Held.

No, there is no constitutional protection for acts of sodomy, and states can outlaw those practices.

Dissent.

Justice Powell

There is no fundamental right to homosexual sodomy. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment. The Georgia statute at issue here authorizes a court to imprison a person for up to 20 years for a single, private consensual act of sodomy. A prison sentence for such conduct, especially a sentence of long duration, would create a serious Eighth Amendment Here, however, defendant has not been tried, much less convicted and sentenced.

Concurrence.

Justice Powell

There is no fundamental right to homosexual sodomy. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment. The Georgia statute at issue here authorizes a court to imprison a person for up to 20 years for a single, private consensual act of sodomy. A prison sentence for such conduct, especially a sentence of long duration, would create a serious Eighth Amendment Here, however, defendant has not been tried, much less convicted and sentenced.

Discussion.

The fundamental right to privacy as protected by the Constitution’s Due Process Clause, does not confer the right upon homosexuals to engage in sodomy. While the right to privacy protects intimate aspects of marriage, procreation, contraception, family relationships, and child rearing from state interference, it does not protect gay sodomy because “no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” Additionally, the right to engage in homosexual sodomy is not in itself a fundamental right protected by the Due Process Clause, which protects from state interference only activities that are implicit in the concept of ordered liberty. In the history and traditions of American society, the Court could find no law construing homosexual sodomy as a fundamental right deserving of constitutional protection. Instead, the Court observed that (at the time Bowers was written), sodomy was illegal in nearly half the states.