BOWERS v. HARDWICK

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

 

[Case involved an adult male who was charged with violating Georgia's sodomy law for participating in a sexual act with another adult male in his own home. Sodomy is defined by the law as committing or submitting to "any sexual act involving the sex organs of one person and the mouth or anus of another." The respondent challenged the constitutionality of the law in federal court. The Court of Appeals held that the law "violated respondent's fundamental rights because his homosexu­al activity is a private and intimate association that is beyond the reach of state regulation."]

 

Justice WHITE delivered the opinion of the Court

 

This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. [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 case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.

 

We first register our disagreement with the Court of Appeals [that] the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. [Pierce and Meyer] were described as dealing with child rearing and education; [Skinner] with procreation; [Loving] with mar­riage; [Griswold and Eisenstadt] with contraception; and [Roe] with abortion. The latter three cases were interpreted as construing [due process] to confer a fundamental individual right to decide whether or not to beget or bear a child. Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy, that is asserted in this case…Moreover, any claim that these cases never­theless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right [did] not reach so far.

 

[R]espondent would have us announce [a] funda­mental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the [Due Process Clauses] which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive [content]. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey. Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In [Palko] it was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if [they] were sacrificed." A different description of fundamental liberties appeared in [Moore], where they are characterized as those liberties that are "deeply rooted in this Nation's history and tradition."

 

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. [discussion of the prevalence of criminalization of sodomy in the US]… Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

 

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution... There should be, therefore, great resis­tance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Other­wise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.

 

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia [1969], where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of his home. [Stanley] did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment... Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

 

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essential­ly moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

[Reversed.]

 

Chief Justice BURGER, concurring.

I join the Court's opinion, but I write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy. As the Court notes, the proscriptions against sodomy have very "ancient roots." [discussion of prevalence of subjecting homosexual conduct to state intervention throughout Western Civilization]  To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. This is essentially not a question of personal "preferences" but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

 

Justice POWELL, concurring.

[I] agree with the Court that there is no fundamental right—i.e., no substantive right under the Due Process Clause—such as that claimed by [respondent]. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct—certainly a sentence of long duration—would create a serious Eighth Amendment [issue]. In this case however, respondent has not been tried, much less convicted and sentenced. Moreover, respondent has not raised the Eighth Amendment issue [below].

 

Justice BLACKMUN, with whom Justice BRENNAN, Justice MAR­SHALL, and Justice STEVENS join, dissenting.

This case is no more about "a fundamental right to engage in homosexual sodomy" as the Court purports to declare, than [Stanley] was about a funda­mental right to watch obscene movies. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." [I] believe we must analyze respondent's claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an "'abominable crime not fit to be named among Christians.'"

 

[In] construing the right to privacy, the Court has proceeded along two somewhat distinct, albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. E.g., [Roe; Pierce.] Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. The case before us implicates both the decisional and the spatial aspects of the right to privacy.

 

The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference "bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." While it is true that these cases may be characterized by their connection to protection of the family, the Court's conclusion that they extend no further than this boundary ignores the warning in [Moore] against "clos[ing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under [due process]." We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. Only the most willful blindness could obscure the fact that sexual intima­cy is "a sensitive, key relationship of human [existence]…”  [The] Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others. [The] behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance.

 

 [The] Court's interpretation of the pivotal case of [Stanley] is entirely unconvincing.
[Stanley decision not based solely on the First Amendment.] Rather, the Stanley Court anchored its holding in the Fourth Amendment's special protection for the individual in his home. [T]he right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy. The Court's failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question whether petitioner, on behalf of the State, has justified Georgia's infringement on these interests. I believe that neither of the two general justifications [that] petitioner has advanced warrants dismissing respondent's challenge for failure to state a claim.

 

 First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for "the general public health and welfare," such as spreading communicable diseases or fostering other criminal activity… [I]t is not surprising that the record before us is barren of any evidence to support petitioner's claim. In light of the state of the record, I see no justification for the Court's attempt to equate the private, consensual sexual activity at issue here with the 'possession in the home of drugs, firearms, or stolen goods,' to which Stanley refused to extend its protection.

         
  [The] core of petitioner's defense of [the law], however, is that respondent and others who engage in the [conduct] interfere with Georgia's exercise of the “ 'right of the Nation and of the States to maintain a decent society.' ”  Essentially, petitioner argues, and the Court agrees, that the fact that acts described in [the law] "for hundreds of years, if not thousands, have been uniformly condemned as immoral" is a sufficient reason to permit a State to ban them today. The assertion that "traditional Judeo—Christian values proscribe" the conduct involved cannot provide an adequate justification for [the law]. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine.  

 

[Nor] can [the law] be justified as a "morally neutral" exercise of Georgia’­s power to "protect the public environment," Paris Adult Theatre I. Certainly, some private behavior can affect the fabric of society as a whole. [But there is a] difference between laws that protect public sensibilities and those that enforce private morality…

 

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

Like the statute that is challenged in this case, the rationale of the Court's opinion applies equally to the prohibited conduct regardless of wheth­er the parties who engage in it are married or unmarried, or are of the same or different sexes. Sodomy was condemned as an odious and sinful type of behavior during the formative period of the common law. That condemnation was equally damning for heterosexual and homosexual sodomy. Moreover, it provided no special exemption for married couples. [Because] the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: First, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? The two questions merit separate discussion.

 

I. Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by [due process. Griswold.] Moreover, this protection extends to intimate choices by unmarried as well as married persons. [Carey; Eisenstadt.] [The] essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral. Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within "the sacred precincts of marital bedrooms," [Griswold] or, indeed, between unmarried heterosexual adults [Eisenstadt].

 

II. If the Georgia statute cannot be enforced as it is written—if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia's citizens—the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in "liberty" that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.

 

The first possibility is plainly unacceptable. Although the meaning of the principle that "all men are created equal" is not always clear, it surely must mean that every free citizen has the same interest in "liberty" that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.

 

The second possibility is similarly unacceptable. A policy of selective application must be supported by a neutral and legitimate interest—some­thing more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable." But the Georgia electo­rate has expressed no such belief—instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unaccept­able. Unless the Court is prepared to conclude that such a law is constitution­al, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored [treatment].

 

Both the Georgia statute and the Georgia prosecutor.. completely fail to provide the Court with any support for the conclusion that homosexual sodomy, simpliciter, is considered unacceptable conduct in that State, and that the burden of justifying a selective application of the generally applicable law has been [met].