Bowers V. Hardwick - Decision

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 homosexual sex.

The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution confers "a fundamental right upon homosexuals to engage in 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."

The majority opinion was delivered by Justice White, joined by William H. Rehnquist and Sandra Day O'Connor. Chief Justice Burger delivered a concurring opinion in the case. Justice Lewis F. Powell, Jr. delivered a concurring opinion, taking future issue with any legal claims brought against state sodomy laws under the U.S. Eighth Amendment, where the conviction for acts of sodomy result in "cruel or unusual" punishments for those engaging in them: " is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case, Ga.Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct — certainly a sentence of long duration — would create a serious Eighth Amendment issue." Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, dissented, citing that "his case is no more about a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 191, that Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men, namely, the right to be let alone (internal quotations removed." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Justice Stevens, with whom Justices Brennan and Marshall joined in dissent, dissented further from the majority opinion: "the Court orders the dismissal of respondent's complaint even though the State's statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State's post hoc explanations for selective application are belied by the State's own actions. At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss."