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Bowers v. Hardwick

    Brief Fact Summary. Respondent was charged with criminal sodomy for homosexual acts that took place in the privacy of his own home.

    Synopsis of Rule of Law. There is no Constitutional right for homosexuals to engage in sodomy.

    Facts. Respondent was charged with violating the Georgia statute criminalizing sodomy by committing that act with another male in the bedroom of his home. The District Attorney decided not to present the matter to the Grand Jury without further evidence. Respondent then brought suit in Federal court challenging the constitutionality of the statute. The District Court granted a motion to dismiss for failure to state a claim but the Court of Appeals reversed, finding that the statute violated Respondent’s fundamental rights.

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

    Held. No, Judgment of the Court of Appeals is reversed.
    Fundamental liberties are those “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.” Neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy

    There should be great resistance to expand the substantive reach of the Due Process Clause, particularly if it requires redefining the category of rights deemed fundamental. Otherwise, the judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.

    Morality is enough for a rational basis. Law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidating, the courts will be very busy indeed.


    Discussion. There is no fundamental right for homosexuals to engage in sodomy because fundamental rights are those implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed. Because Sodomy has had a long history of being punished, it cannot be said that people have a fundamental right to engage in it.


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