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Image of a draft version of Harry Blackmun's dissent in Bowers v. Hardwick.
A draft version of Harry Blackmun's dissent in Bowers v. Hardwick, in which the Court ruled that a Georgia anti-sodomy law was constitutional. The decision was overturned by the 2003 decision Lawrence v. Texas.

Reproduction courtesy of the Library of Congress
Bowers v. Hardwick (1986)

In Bowers v. Hardwick (1986), the Supreme Court ruled that the Constitution does not protect the right of gay adults to engage in private, consensual sodomy. The case began in August 1982, when Atlanta police arrived at the residence of Michael Hardwick to arrest him for failing to appear in court on charges of public drinking. A roommate let the police into Hardwick's home. As the police searched for Hardwick in the house, they noticed a door partly open. Peering in, they found Hardwick and a male companion engaged in oral sex. Hardwick and his partner were arrested on charges of violating the Georgia Sodomy Statute, which stated that "a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another" and "a person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years." Hardwick sued the state of Georgia, claiming that the sodomy statute violated the Constitution. After Hardwick prevailed in a federal appellate court, Georgia appealed to the U.S. Supreme Court, which reviewed the case in 1986.

The Supreme Court, in a 5-4 decision written by Justice Byron White, ruled that the right for gays to engage in sodomy was not protected by the Constitution, that the Georgia law was legal, and that the charges against Hardwick would stand. The Court first argued that the fundamental "right to privacy," as protected by the Constitution's Due Process Clause against the states, does not confer "the right upon homosexuals to engage in sodomy." While the "right to privacy" protects intimate aspects of marriage, procreation, contraception, family relationships, and child rearing from state interference, it does not protect gay sodomy because "no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated."

The Court also ruled that "the right to engage in homosexual sodomy" was not in itself a "fundamental right" protected by the Due Process Clause. The Court argued that the clause zealously protects from state interference only activities that constitute "fundamental rights," that is, activities "implicit in the concept of ordered liberty." In the history and traditions of American society, the Court could find no law construing "homosexual sodomy" as a fundamental right deserving constitutional protection. Instead, the Court observed that sodomy was banned by the original 13 colonies and outlawed by all 50 states until 1961. At the time Bowers was written in 1986, sodomy was illegal in nearly half the states.

Finally, the Court rejected Hardwick's argument that even if homosexual sodomy was not "a fundamental right," it must be protected from "irrational state regulations," arguing that Georgia's law was rational even if its purpose was to "legislate" morality. The Court asserted that all laws are, to a certain degree, rooted in morality, and thus to strike down this one because it is "moral" would necessarily strike down most laws. The Court ruled that the Georgia law was constitutional and the charges against Hardwick could stand. In a strongly worded dissent, Justice Harry Blackmun condemned the decision. He wrote that "this case is about the most comprehensive of rights and the right most valued by civilized men, namely the right to be let alone."

Bowers v. Hardwick, a decision largely contemptuous of homosexual behavior, was a serious legal blow to the gay community. This legal set-back, however, was not long lived. In the 2003 case Lawrence v. Texas, the Court declared a Texas antisodomy statute unconstitutional, ruling that homosexual sodomy is part of the fundamental right of adults to engage in private sexual activity.

Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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