Bowers v. Hardwick

Brief Fact Summary. Respondent, after being charged with violating a Georgia statute criminalizing sodomy, brought an action in the Federal District Court challenging the constitutionality of the statute.

Synopsis of Rule of Law. The United States Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.

Facts. Respondent was charged with violating a Georgia statute that criminalized sodomy and subsequently brought an action in the Federal District Court, challenging the statute as unconstitutional under the Due Process Clause of the Fourteenth Amendment of the Constitution. The Court of Appeals for the Eleventh Circuit found the statute to be unconstitutional, holding that homosexual activity is “a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” The State appeals.

Issue. Does the Federal Constitution confer a fundamental right upon homosexuals to engage in sodomy?

Held. No. Judgment reversed.
The Due Process Clauses of the Fifth and Fourteenth Amendments have been interpreted to include not only procedural rights, but substantive rights as well. Case law has defined these substantive “fundamental liberties” as those that are “implicit in concept of ordered liberty” and “deeply rooted in this Nation’s history and tradition”. Sodomy was once a criminal offense at common law and when the Fourteenth Amendment was ratified, 32 or the 37 States in the Union criminalized sodomy. Therefore there can be no claim that homosexual sodomy is conduct that is “implicit in concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition”.

The belief that homosexual sodomy is immoral serves as a sufficient rational basis to uphold the Georgia statute criminalizing sodomy.

Dissent. This case is not about the fundamental right to engage in sodomy but instead about the values that underlie the right to privacy.
The majority focuses its decision homosexual activity however the statute in question uses broad language that provides that “a person commits the offense of sodomy when he or she performs