Bowers v. Hardwick

Bowers v. Hardwick
Supreme Court of the United States
Argued March 31, 1986 Decided June 30, 1986
Full case name	Michael J. Bowers, Attorney General of Georgia v. Michael Hardwick, et al.
Citations	478 U.S. 186 (more) 106 S. Ct. 2841; 92 L. Ed. 2d 140; 1986 U.S. LEXIS 123; 54 U.S.L.W. 4919
Argument	Oral argument
Case history
Prior	Dismissed, D. Ga.; reversed and remanded, 760 F.2d 1202 (11th Cir. 1985); rehearing en banc denied, 765 F.2d 1123 (11th Cir. 1985); cert. granted, 474 U.S. 943 (1985)
Subsequent	Vacated and remanded, 804 F.2d 622 (11th Cir. 1986)
Holding
A Georgia law classifying homosexual sex as illegal sodomy was valid because there was no constitutionally protected right to engage in homosexual sex. Eleventh Circuit reversed.
Court membership
Chief Justice Warren E. Burger Associate Justices William J. Brennan Jr. · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell Jr. · William Rehnquist John P. Stevens · Sandra Day O'Connor
Case opinions
Majority	White, joined by Burger, Powell, Rehnquist, O'Connor
Concurrence	Burger
Concurrence	Powell
Dissent	Blackmun, joined by Brennan, Marshall, Stevens
Dissent	Stevens, joined by Brennan, Marshall
Laws applied
U.S. Const. amend. XIV; Ga. Code § 16-6-2 (1984)
Overruled by
Lawrence v. Texas, 539 U.S. 558 (2003)

Bowers v. Hardwick, 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, in this case with respect to homosexual sodomy, though the law did not differentiate between homosexual and heterosexual sodomy.^[1] It was overturned in Lawrence v. Texas (2003), though the statute had already been struck down by the Georgia Supreme Court in 1998.

The majority opinion, by Justice Byron White, reasoned that the U.S. Constitution did not confer "a fundamental right to engage in homosexual sodomy".^[1] A concurring opinion by Chief Justice Warren E. Burger cited the "ancient roots" of prohibitions against homosexual sex, quoting William Blackstone's description of homosexual sex as an "infamous crime against nature", worse than rape, and "a crime not fit to be named". Burger concluded: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."^[2]

The senior dissent, by Justice Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun's dissent accused the Court of an "almost obsessive focus on homosexual activity" and an "overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases." In response to invocations of religious taboos against homosexuality, Blackmun wrote: "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."^[3]

Scholarly examinations of the case overwhelmingly sided with the dissenting minority.^[4] Some of the justices, including Lewis F. Powell, later said that they should not have joined the majority, although Powell also indicated in 1990 that the decision was of little importance.^[5][6] Seventeen years after Bowers, the Supreme Court directly overruled its decision in Lawrence v. Texas, holding that anti-sodomy laws are unconstitutional. In Lawrence, the Supreme Court subsequently based its decision on the American tradition of non-interference with private sexual decisions between consenting adults and on the notions of personal autonomy to define one's own relationships.^[7]