Bowers v. Hardwick
The Supreme Court upheld Georgia's law criminalizing sodomy, ruling that the Constitution does not protect a fundamental right for adults to engage in private, consensual homosexual sodomy.
The 5-4 decision let states continue to criminalize such conduct and rejected the idea that earlier privacy rulings on marriage, contraception, and family life extended that far, a holding that would remain the law for seventeen years.
“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 majority's framing of the narrow constitutional question it set out to answer.
How it got here: A federal trial court dismissed Hardwick's suit; the Eleventh Circuit reversed and found a constitutional right; Georgia's Attorney General sought Supreme Court review.
The Case in Depth
What happened
Michael Hardwick was charged under a Georgia law making sodomy a crime after police found him having sex with another man in his own bedroom. Prosecutors decided not to pursue the charge, but Hardwick sued in federal court, arguing the law violated his constitutional rights by criminalizing private, consensual sexual activity between adults of the same sex.
The question before the Court
Does the Constitution give adults a fundamental right to engage in private, consensual homosexual sodomy?
Why it matters
The ruling meant gay men and women in roughly two dozen states remained subject to criminal prosecution for private, consensual sexual conduct in their own homes. It also signaled that the Court would not readily expand the list of rights protected by the Due Process Clause, shaping later privacy and gay-rights litigation until the decision was eventually overturned.
What changes now
The ruling reversed the Eleventh Circuit and reinstated the dismissal of Hardwick's lawsuit, letting Georgia's sodomy law stand. Because the Court decided the case on the merits, this was a final decision resolving the constitutional question presented, though it applied only to homosexual sodomy prosecutions and left other legal challenges to sodomy laws open. The decision would later be overruled by the Supreme Court in 2003.
What this does not decide
The Court said it was not deciding whether sodomy laws are wise or desirable, was not addressing state legislatures' power to repeal such laws, and expressed no opinion on the statute as applied to heterosexual sodomy — its holding was limited to whether the Constitution bars states from criminalizing consensual homosexual sodomy.
Concurrences and dissents
Concurrence — Justice Burger
Chief Justice Burger joined the majority but wrote separately to stress that condemnation of homosexual sodomy is rooted in millennia of Western legal and religious tradition, tracing prohibitions back to Roman law and English common law. He argued recognizing such a right would cast aside centuries of moral teaching and found nothing in the Constitution preventing Georgia from enacting the statute.
Concurrence — Justice Powell
Justice Powell agreed there was no fundamental due process right at stake, but suggested that a lengthy prison sentence for a single private act of sodomy could raise a serious Eighth Amendment cruel-and-unusual-punishment problem. He noted Hardwick had not been tried or sentenced and had not raised the Eighth Amendment issue, so that question was not before the Court.
Dissent — Justice Blackmun
“The statute at issue, Ga. Code Ann. § 16-6-2 (1984), denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity.”Blackmun's description of what the law actually took away from individuals.
Justice Blackmun argued the case was really about the broader right to be let alone, not a narrow 'right to commit sodomy,' and criticized the majority for ignoring the Ninth Amendment, Eighth Amendment, and Equal Protection claims raised in the complaint. He contended the statute intruded on intimate decisions protected by privacy precedents and that tradition alone cannot justify a law against constitutional attack, comparing the case to Loving v. Virginia.
Dissent — Justice Stevens
Justice Stevens argued the Georgia statute applied equally to heterosexual and homosexual sodomy and that history showed no special exemption even for married couples, meaning the law could not constitutionally be enforced against anyone. He argued Georgia could not selectively enforce an otherwise unconstitutional general law only against homosexuals without a legitimate, neutral justification, which the state had not provided.
How the Court got there
The legal reasoning, step by step
- The Court framed the question narrowly as whether the Constitution grants a fundamental right to engage in homosexual sodomy, rather than a broader question about sexual privacy in general.
- It reviewed its earlier privacy-rights cases on contraception, marriage, and abortion and concluded none of them protected activity resembling homosexual sodomy, since those cases centered on family, marriage, and procreation.
- Applying the test for identifying unenumerated fundamental rights — asking whether a right is 'deeply rooted in this Nation's history and tradition' — the Court found that laws against sodomy have ancient roots and were nearly universal in American law at the time the Constitution and Fourteenth Amendment were adopted.
- The Court rejected the argument that conduct occurring inside the home is automatically protected, noting that other illegal conduct, like drug possession, is still punishable even in the home.
- Because no fundamental right existed, the Court applied the far more lenient rational-basis test, under which a law is valid if the government has any reasonable justification, and found that the Georgia Legislature's moral judgment about sodomy was an adequate basis for the statute.
Doctrinal impact
Cases affected by this decision
Distinguishes Stanley v. Georgia
The Court said Stanley's protection for obscene material in the home rested on the First Amendment and does not extend to sodomy.