BOWERS v. HARDWICK 478 U.S. 186 (1986)

Hardwick was charged with engaging in homosexual sodomy in violation of a Georgia statute, but after a preliminary hearing the prosecutor declined to pursue the case. Despite the fact that Hardwick was not going to be prosecuted, he brought suit in federal court to have the Georgia sodomy statute declared unconstitutional. The court of appeals held that the Georgia statute violated Hardwick's fundamental rights because homosexual activity is protected by the ninth amendment and the due process clause of the fourteenth amendment.

The Supreme Court disagreed, holding 5–4 that the statue did not violate any fundamental rights protected by the Consitution—in particular, that the act did not violate the right of privacy announced by the court in previous cases.

Writing for the majority, Justice byron r. white contended that previous rulings delineating a constitutional right of privacy could not be used to strike down a law against sodomy. Previous precedents in this field focused on "family, marriage or procreation," said White, and neither Hardwick nor the court of appeals had demonstrated a connection between homosexual activity and these areas. In making his argument from precedent, White explicitly denied that the Court had ever announced a general right of private sexual conduct. Precedent aside, White argued that if the Court itself is to remain constitutionally legitimate, it must be wary of creating new rights that have little or no basis in the text or design of the Constitution. Such rights can be adopted by the Court only if they are so implicit in the concept of ordered liberty or so rooted in the nation's history that they mandate protection; homosexual sodomy meets neither requirement. Given White's framework of analysis, the other arguments marshaled by Harwick also had to fail. The argument that since his conduct took place in the privacy of his home it must be protected fails because one has no right to engage in criminal conduct within one's home. And the argument that the law has no rational basis because it was based solely on the moral views of its supporters fails because "law … is constantly based on notions of morality."

Writing for the dissenters, Justice harry a. blackmun declared what the majority denied—that a general constitutional right of private sexual conduct (or "intimate association") exists. Blackmun thereby shifted the burden of proof from Hardwick to the government. Because intimate association is generally protected by the Constitution, the government must prove that any regulations in this area are valid. Georgia did not do so; hence, the statute was invalid.

The Court's ruling in Bowers engendered a great deal of controversy. Many had wanted the Court to use the case to place discrimination on the basis of sexual orientation in the same category as racial or gender discrimination. Yet it is understandable why the Court did not do so. Gender and race are not clearly analogous to sexual orientation, for neither is defined by conduct in the way that sexual orientation is. Homosexual sodomy has faced public disapproval for centuries because it is behavior that society has judged destructive for a variety of reasons, including its effects on public health, safety, and morality. Whether this judgment is correct or not may be debated, but the Court did not wish to resolve the debate by imposition of its own will in the matter.

John G. West, Jr.
(1992)

(see also: Freedom of Intimate Association; Sexual Orientation; Sexual Preference and the Constitution.)

Bibliography

Weller, Christopher W. 1986 Bowers v. Hardwick: Balancing the Interests of the Moral Order and Individual Liberty. Cumberland Law Review 16:555–592.