Bowers v. Hardwick

Bowers v. Hardwick, {{ussc|478|186|1986}}, was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later the Supreme Court directly overruled Bowers in the Lawrence v. Texas, 539 U.S. 558 (2003) decision and held that such laws are unconstitutional. (See judicial review.)

Decision

The issue in Bowers involved the right of privacy. Since 1965's Griswold v. Connecticut the Court had held that a right to privacy was implicit in the due process clause of the Fourteenth Amendment to the United States Constitution. In Bowers, the Court held that this right did not extend to private, consensual sexual conduct, at least insofar as it involved same-sex sodomy.

Related Topics:
Privacy - Griswold v. Connecticut - Due process - Fourteenth Amendment to the United States Constitution

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The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution creates "a fundamental right to engage in homosexual sodomy." Justice White's opinion for the majority answered this question in the negative, stating that "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."

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The majority opinion by Justice White was joined by Chief Justice Burger and Justices Lewis F. Powell, Jr., William H. Rehnquist and Sandra Day O'Connor. Justice Powell and Chief Justice Burger also wrote separate concurring opinions. Justices William J. Brennan, Thurgood Marshall and John Paul Stevens joined Justice Blackmun's dissenting opinion. In addition, Justice Stevens wrote his own dissenting opinion, which was joined by Justices Brennan and Marshall.

Related Topics:
Lewis F. Powell, Jr. - William H. Rehnquist - Sandra Day O'Connor - William J. Brennan - Thurgood Marshall - John Paul Stevens

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The short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward sodomy, quoting Sir William Blackstone's characterization of sodomy as "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."

Related Topics:
Warren E. Burger - William Blackstone

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Opponents of sodomy laws criticized Bowers not only for its result but also because of the Court's dismissive treatment of the liberty and privacy interests of gay men and lesbians. A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an "almost obsessive focus on homosexual activity." Justice Blackmun suggested that "nly the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.'"

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Justice Powell was considered the crucial vote during the case, and in a concurring opinion voiced doubts about the constitutionality of Georgia's law as it related to the prison sentence for conviction, but joined the majority opinion upholding the law against a substantive due process attack. Powell reportedly decided to uphold the law because he had never known of any homosexuals, not realizing his own court clerk was gay. After retiring from the Court, Justice Powell publicly said that he regretted his vote in Bowers.

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