Bowers v. Hardwick(1986): Fundamental Rights, Sodomy, 8th A.

t Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexualsodomy with another adult in the bed room of his home. After being charged with violating a Georgia statute that criminalized homosexual sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. The Court of Appeals reversed and remanded, holding that the statute was unconstitutional. Georgia's Atty. Gen., Bowers, appealed. Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

n Majority: WHITE: No. The Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Whiteargued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko) or when they are "deeply rooted in the Nation's history and tradition" (Griswold). The Court held that the right to commit sodomy did not meet either of these standards. Whitefeared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

n Concurring: POWELL: Suggested that had Hardwick been “tried, much less convicted and sentenced” and had he raised the 8^th A., he might have decided differently. Powelllater admitted that he switched his vote to create a majority upholding the Ga. statute. The Court wanted to avoid the issue, and suggested that state legislatures could repeal the old laws, or State Supreme Cts. could strike down the laws on state constitutional grounds.

n Dissent: BLACKMUN, BRENNAN, MARSHALL, STEVENS: “This case is about the right most valued by civilized men,” namely, “the right to be left alone” (Olmstead, Brandeis dissenting) Ga. can not selectively enforce the statute against homosexuals, and there are questions concerning the right to enforce it against all.

Date: 2015-01-02; view: 669