Privacy in Bowers v. Hardwick

Does the constitution give a fundamental right to homosexuals to engage in consensual sodomy, despite state laws against it? Who has the authority to decide what our fundamental rights are? To what extent do private acts effect the public sphere? These were among the many questions raised by the 1986 Supreme Court case Bowers v. Hardwick.

Michael Hardwick was charged in 1982 with violating a Georgia law that criminalized sodomy. After his claim was dismissed by the Federal District Court, he brought suit to the Court of Appeals. The court, citing the precedent of Griswold v. Connecticut and other Supreme Court cases, ruled that the Georgia statute infringed on Hardwick’s fundamental rights because his homosexual activity was a “private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment” (Bowers v. Hardwick, 1986, White, J, opinion of the court). Georgia’s Attorney General then appealed the case to the Supreme Court.

In a 5-4 ruling, the court decided that the right to privacy that previous Supreme Court cases had pulled from the constitution did not extend to homosexual sodomy, and therefore could be outlawed by states. As Justice White said in the opinion of the court, “None of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy … No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable” (Bowers v. Hardwick, 1986, White, J, opinion of the court).

Justice White also stated that the judiciary should act to protect rights from the penumbra of rights only when those rights are “implicit in the concept of ordered liberty” (Palko v. Connecticut) or “deeply rooted in this Nation’s history and tradition” (Griswold v. Connecticut). The majority believed that sodomy did not meet either standard and that forbidding states to outlaw it would overstep their constitutional authority.

Hardwick argued that the law should be different when the homosexual conduct occurred in private. The court, however, ruled that the asserted right to sodomy did not have a similar grounding in the constitution, and that saying it was ok to do in private would open the door to arguments that adultery, incest, and other sexual crimes were justifiable if committed in private.

Georgia’s Attorney General stated that sodomy would have serious negative effects for the public, such as spreading disease or fostering other illegal activity. To strike down Georgia’s statute, he believed, would interfere with the right of the government to maintain a decent society. In contrast, Justice Blackmun wrote in his dissenting opinion that the “Petitioner and the court fail to see the difference between laws that protect public sensibilities and those that enforce private morality.” He went on to say that the fact that the sodomy occurred in private does affect the result, writing that “the same recognition that those decisions are intensely private which justifies protecting them from governmental interference can justify protection individuals from unwilling exposure to the sexual activities of others” (Bowers v. Hardwick, 1986, Blackmun, J, dissenting opinion).

Blackmun believed that the judiciary should protect Hardwick and other’s right to privacy because “individuals define themselves in a significant way through their intimate sexual relationships with others … the court claims that its decision today merely refuses to recognize a fundamental right to engages in homosexual sodomy; what the court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others” (Bowers v. Hardwick, 1986, Blackmun, J, dissenting opinion).