Section 1: Citation
Bowers v. Hardwick, 478 U.S. 186 (1986)
Section 2: Facts
Michael Hardwick was observed by a Georgia police officer while engaging in homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that made homosexual sodomy illegal, Hardwick challenged the statute’s constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia’s statute was unconstitutional. Georgia’s Attorney General, Michael J. Bowers, appealed to the Supreme Court
Section 3: Issue(s)
Does the Constitution inherently include a fundamental right upon homosexuals to engage in consensual sodomy, and in doing so make the laws of many states which make such conduct illegal void?
Section 4: Reasoning
JUSTICE WHITE. None of the rights announced in past cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy. Proscription against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when the ratified the Bill of Rights. The right pressed upon here has no firm basis in the Constitution. Allowing homosexual conduct would leave 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.
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Section 5: Decision
Reversed
Section 6: Rule
The Constitution does not inherently include a fundamental right upon homosexuals to engage in consensual sodomy, and in doing so does not make the laws of many states which make such conduct illegal void?
Section 7: Concurring/Dissenting Opinions
CHIEF JUSTICE BURGER, concurring. I agree, but write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy. Blackstone described “the infamous crime of nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.”
JUSTICE POWELL, concurring. I agree that there is no fundamental right under the Due Process Clause. The respondent, however, may be protected under the Eight Amendnment. A Sentence of 20 years would certainly create an Eight amendment issue.
JUSTICE BLACKMUN with JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. This case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be left alone.” The Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Hardwick has made a cognizable claim that the law interferes with constitutionally protected interests in privacy and freedom of intimate association.
JUSTICE STEVENS, with JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. 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? As it may seem, our prior cases thus establish that a State may not prohibit sodomy within “the sacred precincts or marital bedrooms,” or in-between unmarried heterosexual adults.
Section 8: Notes and Comments
I feel that the courts ruling was in error. I feel that it is up to an individual to decide what he/or she does in the privacy of their own home as long as it stays on the legal side of behavior. On this note, I feel that homosexuality is not illegal and the practicing of it shouldn’t be. Any law that prohibits this should be deemed unconstitutional. Even though my moral views are against the support of homosexuality, everyone has a right to practice what they want to in the privacy of their own home.
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