In Bowers v. Hardwick, 478 U.S. 186 (1986), an
adult male was charged with violating Georgia’s sodomy law
by committing a sexual act with another male in his own bedroom. The
defendant argued in court that homosexual activity is a private
and intimate association that is protected by the Bill of Rights. The
Supreme Court rejected the argument and upheld Georgia’s
power to regulate sexual behavior, even when it took place in man’s
own bedroom.
Bowers v. Hardwick, 478 U.S. 186 (1986)
In August 1982, respondent Hardwick (hereafter respondent) was
charged with violating the Georgia statute criminalizing sodomy[1] by committing that act with another adult male in the bedroom of
respondent's home. After a preliminary hearing, the District Attorney
decided not to present the matter to the grand jury unless further
evidence developed.
Respondent then brought suit in the Federal District Court, challenging
the constitutionality of the statute insofar as it criminalized
consensual sodomy. He asserted that he was a practicing homosexual,
that the Georgia sodomy statute, as administered by the defendants,
placed him in imminent danger of arrest, and that the statute for
several reasons violates the Federal Constitution. The District
Court granted the defendants' motion to dismiss for failure to
state a claim, relying on Doe v. Commonwealth's Attorney for the
City of Richmond, 403 F.Supp. 1199 (ED Va. 1975), which this Court
summarily affirmed, 425 U.S. 901 (1976).
A divided panel of the Court of Appeals for the Eleventh Circuit
reversed. 760 F.2d 1202 (1985). The court first held that, because
Doe was distinguishable and in any event had been undermined by
later decisions, our summary affirmance in that case did not require
affirmance of the District Court. Relying on our decisions in Griswold
v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S.
438 (1972); Stanley v. Georgia, 394 U.S. 557 (1969); and
Roe v. Wade, 410 U.S. 113 (1973), the court went on to hold that
the Georgia statute violated respondent's fundamental rights because
his homosexual activity is 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.
The case was remanded for trial, at which, to prevail, the State
would have to prove that the statute is supported by a compelling
interest and is the most narrowly drawn means of achieving that
end.
We first register our disagreement with the Court of Appeals and
with respondent that the Court's prior cases have construed the
Constitution to confer a right of privacy that extends to homosexual
sodomy and for all intents and purposes have decided this case.
The reach of this line of cases was sketched in Carey v. Population
Services International, 431 U.S. 678, 685 (1977). Pierce v. Society
of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S.
390 (1923), were described as dealing with child rearing and education;
Prince v. Massachusetts, 321 U.S. 158 (1944), with family relationships;
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), with
procreation; Loving v. Virginia, 388 U.S. 1 (1967), with marriage;
Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra,
with contraception; and Roe v. Wade, 410 U.S. 113 [**2844] (1973),
with abortion. The latter three cases were interpreted as construing
the Due Process Clause of the Fourteenth Amendment to confer a
fundamental individual right to decide whether or not to beget
or bear a child. Carey v. Population Services International, supra,
at 688-689.
Accepting the decisions in these cases and the above description
of them, we think it evident that none of the rights announced
in those cases bears any resemblance to the claimed constitutional
right of homosexuals to engage in acts of sodomy that is asserted
in this case. 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.
Indeed, the Court's opinion in Carey twice asserted that the privacy
right, which the Griswold line of cases found to be one of the
protections provided by the Due Process Clause, did not reach so
far. 431 U.S., at 688, n. 5, 694, n. 17.
Precedent aside, however, respondent would have us announce, as
the Court of Appeals did, a fundamental right to engage in homosexual
sodomy. This we are quite unwilling to do. It is true that despite
the language of the Due Process Clauses of the Fifth and Fourteenth
Amendments, which appears to focus only on the processes by which
life, liberty, or property is taken, the cases are legion in which
those Clauses have been interpreted to have substantive content,
subsuming rights that to a great extent are immune from federal
or state regulation or proscription. Among such cases are those
recognizing rights that have little or no textual support in the
constitutional language. Meyer, Prince, and Pierce fall in this
category, as do the privacy cases from Griswold to Carey.
Striving to assure itself and the public that announcing rights
not readily identifiable in the Constitution's text involves much
more than the imposition of the Justices' own choice of values
on the States and the Federal Government, the Court has sought
to identify the nature of the rights qualifying for heightened
judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325,
326 (1937), it was said that this category includes those fundamental
liberties that are "implicit in the concept of ordered liberty," such
that "neither liberty nor justice would exist if [they] were
sacrificed." A different description of fundamental liberties
appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion
of POWELL, J.), where they are characterized as those liberties
that are "deeply rooted in this Nation's history and tradition." Id.,
at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S.,
at 506.
It is obvious to us that neither of these formulations would extend
a fundamental right to homosexuals to engage in acts of consensual
sodomy. Proscriptions against that conduct have ancient roots.
See generally Survey on the Constitutional Right to Privacy in
the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525
(1986). Sodomy was a criminal offense at common law and was forbidden
by the laws of the original 13 States when they ratified the Bill
of Rights. n5 In 1868, when the Fourteenth Amendment was
ratified, all but 5 of the 37 States in the Union had criminal
sodomy laws. n6 In fact, until 1961, n7 all 50 States outlawed
sodomy, and today, 24 States and the District of Columbia
continue to provide criminal penalties for sodomy performed in
private and between consenting adults. See Survey, U. Miami L.
Rev., supra, at 524, n. 9. Against this background, 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.
Nor are we inclined to take a more expansive view of our authority
to discover new fundamental rights imbedded in the Due Process
Clause. The Court is most vulnerable and comes nearest to illegitimacy
when it deals with judge-made constitutional law having little
or no cognizable roots in the language or design of the Constitution.
That this is so was painfully demonstrated by the face-off between
the Executive and the Court in the 1930's, which resulted in the
repudiation of much of the substantive gloss that the Court had
placed on the Due Process Clauses of the Fifth and Fourteenth Amendments.
There should be, therefore, great resistance to expand the substantive
reach of those Clauses, particularly if it requires redefining
the category of rights deemed to be fundamental. Otherwise, the
Judiciary necessarily takes to itself further authority to govern
the country without express constitutional authority. The claimed
right pressed on us today falls far short of overcoming this resistance.
[1B]
Respondent, however, asserts that the result should be different
where the homosexual conduct occurs in the privacy of the home.
He relies on Stanley v. Georgia, 394 U.S. 557 (1969), where the
Court held that the First Amendment prevents conviction for possessing
and reading obscene material in the privacy of one's home: "If
the First Amendment means anything, it means that a State has no
business telling a man, sitting alone in his house, what books
he may read or what films he may watch." Id., at 565.
Stanley did protect conduct that would not have been protected
outside the home, and it partially prevented the enforcement
of state obscenity laws; but the decision was firmly grounded in
the First Amendment. The right pressed upon us here has no similar
support in the text of the Constitution, and it does not qualify
for recognition under the prevailing principles for construing
the Fourteenth Amendment. Its limits are also difficult to discern.
Plainly enough, otherwise illegal conduct is not always immunized
whenever it occurs in the home. Victimless crimes, such as the
possession and use of illegal drugs, do not escape the law where
they are committed at home. Stanley itself recognized that its
holding offered no protection for the possession in the home of
drugs, firearms, or stolen goods. Id., at 568, n. 11. And if respondent's
submission is limited to the voluntary sexual conduct between consenting
adults, it would be difficult, except by fiat, to limit the claimed
right to homosexual conduct while leaving exposed to prosecution
adultery, incest, and other sexual crimes even though they are
committed in the home. We are unwilling to start down that road.
Even if the conduct at issue here is not a fundamental right,
respondent asserts that there must be a rational basis for the
law and that there is none in this case other than the presumed
belief of a majority of the electorate in Georgia that homosexual
sodomy is immoral and unacceptable. This is said to be an inadequate
rationale to support the law. The law, however, is constantly based
on notions of morality, and if all laws representing essentially
moral choices are to be invalidated under the Due Process Clause,
the courts will be very busy indeed. Even respondent makes no such
claim, but insists that majority sentiments about the morality
of homosexuality should be declared inadequate. We do not agree,
and are unpersuaded that the sodomy laws of some 25 States should
be invalidated on this basis.
DISSENT: JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE
MARSHALL, and JUSTICE STEVENS join, dissenting.
This case is no more about "a fundamental right to engage
in homosexual sodomy," as the Court purports to declare, ante,
at 191, than 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." Olmstead
v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
The statute at issue, Ga. Code Ann. § 16-6-2 (1984), denies
individuals the right to decide for themselves whether to engage
in particular forms of private, consensual sexual activity. The
Court concludes that § 16-6-2 is valid essentially because "the
laws of . . . many States . . . still make such conduct illegal
and have done so for a very long time." Ante, at 190. But
the fact that the moral judgments expressed by statutes like § 16-6-2
may be "'natural and familiar . . . ought not to conclude
our judgment upon the question whether statutes embodying them
conflict with the Constitution of the United States.'" Roe
v. Wade, 410 U.S. 113, 117 (1973), quoting Lochner v. New York,
198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Like Justice Holmes,
I believe that "[it] is revolting to have no better reason
for a rule of law than that so it was laid down in the time of
Henry IV. It is still more revolting if the grounds upon which
it was laid down have vanished long since, and the rule simply
persists from blind imitation of the past." Holmes, The Path
of the Law, 10 Harv. L. Rev. 457, 469 (1897). I believe we must
analyze respondent Hardwick's claim in the light of the values
that underlie the constitutional right to privacy. If that right
means anything, it means that, before Georgia can prosecute its
citizens for making choices about the most intimate aspects of
their lives, it must do more than assert that the choice they have
made is an "'abominable crime not fit to be named among Christians.'" Herring
v. State, 119 Ga. 709, 721, 46 S. E. 876, 882 (1904).
II
"Our cases long have recognized that the Constitution embodies
a promise that a certain private sphere of individual liberty will
be kept largely beyond the reach of government." Thornburgh
v. American College of Obstetricians & Gynecologists, 476 U.S.
747, 772 (1986). In construing the right to privacy, the Court
has proceeded along two somewhat distinct, albeit complementary,
lines. First, it has recognized a privacy interest with reference
to certain decisions that are properly for the individual to make.
E. g., Roe v. Wade, 410 U.S. 113 (1973); Pierce v. Society of Sisters,
268 U.S. 510 (1925). Second, it has recognized a privacy interest
with reference to certain places without regard for the particular
activities in which the individuals who occupy them are engaged.
E. g., United States v. Karo, 468 U.S. 705 (1984); Payton v. New
York, 445 U.S. 573 (1980); Rios v. United States, 364 U.S. 253
(1960). The case before us implicates both the decisional and the
spatial aspects of the right to privacy.
A
The Court concludes today that none of our prior cases dealing
with various decisions that individuals are entitled to make free
of governmental interference "bears any resemblance to the
claimed constitutional right of homosexuals to engage in acts of
sodomy that is asserted in this case." Ante, at 190-191. While
it is true that these cases may be characterized by their connection
to protection of the family, see Roberts v. United States Jaycees,
468 U.S. 609, 619 (1984), the Court's conclusion that they extend
no further than this boundary ignores the warning in Moore v. East
Cleveland, 431 U.S. 494, 501 (1977) (plurality opinion), against "[closing]
our eyes to the basic reasons why certain rights associated with
the family have been accorded shelter under the Fourteenth Amendment's
Due Process Clause." We protect those rights not because they
contribute, in some direct and material way, to the general public
welfare, but because they form so central a part of an individual's
life. "[The] concept of privacy embodies the 'moral fact that
a person belongs to himself and not others nor to society as a
whole.'" Thornburgh v. American College of Obstetricians & Gynecologists,
476 U.S., at 777, n. 5 (STEVENS, J., concurring), quoting Fried,
Correspondence, 6 Phil. & Pub. Affairs 288-289 (1977).
And so we protect the decision whether to marry precisely because
marriage "is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects." Griswold v. Connecticut,
381 U.S., at 486. We protect the decision whether to have a child
because parenthood alters so dramatically an individual's self-definition,
not because of demographic considerations or the Bible's command
to be fruitful and multiply. Cf. Thornburgh v. American College
of Obstetricians & Gynecologists, supra, at 777, n. 6 (STEVENS,
J., concurring). And we protect the family because it contributes
so powerfully to the happiness of individuals, not because of a
preference for stereotypical households. Cf. Moore v. East Cleveland,
431 U.S., at 500-506 (plurality opinion). The Court recognized
in Roberts, 468 U.S., at 619, that the "ability independently
to define one's identity that is central to any concept of liberty" cannot
truly be exercised in a vacuum; we all depend on the "emotional
enrichment from close ties with others." Ibid.
Only 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," Paris Adult Theatre I v. Slaton, 413
U.S. 49, 63 (1973); see also Carey v. Population Services International,
431 U.S. 678, 685 (1977). The fact that individuals define themselves
in a significant way through their intimate sexual relationships
with others suggests, in a Nation as diverse as ours, that there
may be many "right" ways of conducting those relationships,
and that much of the richness of a relationship will come from
the freedom an individual has to choose the form and nature of
these intensely personal bonds. See Karst, The Freedom of Intimate
Association, 89 Yale L. J. 624, 637 (1980); cf. Eisenstadt v. Baird,
405 U.S. 438, 453 (1972); Roe v. Wade, 410 U.S., at 153.
In a variety of circumstances we have recognized that a necessary
corollary of giving individuals freedom to choose how to
conduct their lives is acceptance of the fact that different individuals
will make different choices. For example, in holding that the clearly
important state interest in public education should give way to
a competing claim by the Amish to the effect that extended formal
schooling threatened their way of life, the Court declared: "There
can be no assumption that today's majority is 'right' and the Amish
and others like them are 'wrong.' A way of life that is odd or
even erratic but interferes with no rights or interests of others
is not to be condemned because it is different." Wisconsin
v. Yoder, 406 U.S. 205, 223-224 (1972). The Court claims that its
decision today merely refuses to recognize a fundamental right
to engage 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.
The core of petitioner's defense of § 16-6-2, however,
is that respondent and others who engage in the conduct prohibited
by § 16-6-2 interfere with Georgia's exercise of the "'right
of the Nation and of the States to maintain a decent society,'" Paris
Adult Theatre I v. Slaton, 413 U.S., at 59-60, quoting Jacobellis
v. Ohio, 378 U.S. 184, 199 (1964) (Warren, C. J., dissenting).
Essentially, petitioner argues, and the Court agrees, that the
fact that the acts described in § 16-6-2 "for hundreds
of years, if not thousands, have been uniformly condemned as immoral" is
a sufficient reason to permit a State to ban them today. Brief
for Petitioner 19; see ante, at 190, 192-194, 196.
I cannot agree that either the length of time a majority has held
its convictions or the passions with which it defends them can
withdraw legislation from this Court's scrutiny. See, e. g., Roe
v. Wade, 410 U.S. 113 (1973); Loving v. Virginia, 388 U.S. 1 (1967);
Brown v. Board of Education, 347 U.S. 483 (1954).[2] As Justice
Jackson wrote so eloquently for the Court in West Virginia Board
of Education v. Barnette, 319 U.S. 624, 641-642 (1943), "we
apply the limitations of the Constitution with no fear that freedom
to be intellectually and spiritually diverse or even contrary will
disintegrate the social organization. . . . [Freedom] to differ
is not limited to things that do not matter much. That would be
a mere shadow of freedom. The test of its substance is the right
to differ as to things that touch the heart of the existing order." See
also Karst, 89 Yale L. J., at 627. It is precisely because the
issue raised by this case touches the heart of what makes individuals
what they are that we should be especially sensitive to the rights
of those whose choices upset the majority.
The assertion that "traditional Judeo-Christian values proscribe" the
conduct involved, Brief for Petitioner 20, cannot provide an adequate
justification for § 16-6-2. [**2855] That certain,
but by no means all, religious groups condemn the behavior at issue
gives the State no license to impose their judgments on the entire
citizenry. The legitimacy of secular legislation depends instead
on whether the State can advance some justification for its law
beyond its conformity to religious doctrine. See, e. g., McGowan
v. Maryland, 366 U.S. 420, 429-453 (1961); Stone v. Graham, 449
U.S. 39 (1980). Thus, far from buttressing his case, petitioner's
invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy's
heretical status during the Middle Ages undermines his suggestion
that § 16-6-2 represents a legitimate use of secular coercive
power.[3] A State can no more punish private behavior because [*212] of
religious intolerance than it can punish such behavior because
of racial animus. "The Constitution cannot control such prejudices,
but neither can it tolerate them. Private biases may be outside
the reach of the law, but the law cannot, directly or indirectly,
give them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
No matter how uncomfortable a certain group may make the majority
of this Court, we have held that "[mere] public intolerance
or animosity cannot constitutionally justify the deprivation of
a person's physical liberty." O'Connor v. Donaldson, 422 U.S.
563, 575 (1975). See also Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 [***160] (1985); United States Dept. of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
Nor can § 16-6-2 be justified as a "morally neutral" exercise
of Georgia's power to "protect the public environment," Paris
Adult Theatre I, 413 U.S., at 68-69. Certainly, some private behavior
can affect the fabric of society as a whole. Reasonable people
may differ about whether particular sexual acts are moral or immoral,
but "we have ample evidence for believing that people will
not abandon morality, will not think any better of murder, cruelty
and dishonesty, merely because some private sexual practice which
they abominate is not punished by the law." H. L. A. Hart,
Immorality and Treason, reprinted in The Law as Literature 220,
225 (L. Blom-Cooper ed. 1961). Petitioner and the Court fail to
see the difference between laws that protect public sensibilities
and those that enforce private morality. Statutes banning [*213] public
sexual activity are entirely consistent with protecting the individual's
liberty interest in decisions concerning sexual relations: the
same recognition that those decisions are intensely private which
justifies protecting them from governmental interference can justify
protecting individuals from unwilling exposure to the sexual activities
of others. But the mere fact that intimate behavior may be punished
when it takes place in public cannot dictate how States can regulate
intimate behavior that occurs in intimate places. See Paris Adult
Theatre I, 413 U.S., at 66, n. 13 ("marital intercourse on
a street corner or a theater stage" can be forbidden despite
the constitutional protection identified in Griswold v. Connecticut,
381 U.S. 479 (1965)).[4]
This case involves no real interference with the rights of others,
for the mere knowledge that other individuals do not adhere to
one's value system cannot be a legally cognizable interest, cf.
Diamond v. Charles, 476 U.S. 54, 65-66 (1986), let alone an interest
that can justify invading the houses, hearts, and minds of citizens
who choose to live their lives differently.
[1] Georgia Code Ann. § 16-6-2 (1984) provides,
in pertinent part, as follows:
"(a) 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.
. . .
"(b) A person convicted of the offense of sodomy shall be
punished by imprisonment for not less than one nor more than 20
years. . . ."
[2] The parallel between Loving and this case
is almost uncanny. There, too, the State relied on a religious
justification for its law. Compare 388 U.S., at 3 (quoting trial
court's statement that "Almighty
God created the races white, black, yellow, malay and red, and
he placed them on separate continents. . . . The fact that he separated
the races shows that he did not intend for the races to mix"),
with Brief for Petitioner 20-21 (relying on the Old and New Testaments
and the writings of St. Thomas Aquinas to show that "traditional
Judeo-Christian values proscribe such conduct"). There, too,
defenders of the challenged statute relied heavily on the fact
that when the Fourteenth Amendment was ratified, most of the States
had similar prohibitions. Compare Brief for Appellee in Loving
v. Virginia, O. T. 1966, No. 395, pp. 28-29, with ante, at 192-194,
and n. 6. There, too, at the time the case came before the Court,
many of the States still had criminal statutes concerning the conduct
at issue. Compare 388 U.S., at 6, n. 5 (noting that 16 States still
outlawed interracial marriage), with ante, at 193-194 (noting that
24 States and the District of Columbia have sodomy statutes). Yet
the Court held, not only that the invidious racism of Virginia's
law violated the Equal Protection Clause, see 388 U.S., at 7-12,
but also that the law deprived the Lovings of due process by denying
them the "freedom of choice to marry" that had "long
been recognized as one of the vital personal rights essential to
the orderly pursuit of happiness by free men." Id., at 12.
[3] The theological nature of the origin of
Anglo-American antisodomy statutes is patent. It was not until
1533 that sodomy was made a secular offense in England. 25 Hen.
VIII, ch. 6. Until that time, the offense was, in Sir James Stephen's
words, "merely ecclesiastical." 2 J. Stephen, A History
of the Criminal Law of England 429-430 (1883). Pollock and Maitland
similarly observed that "[the] crime against nature . . .
was so closely connected with heresy that the vulgar had but one
name for both." 2 F. Pollock & F. Maitland, The History
of English Law 554 (1895). The transfer of jurisdiction over prosecutions
for sodomy to the secular courts seems primarily due to the alteration
of ecclesiastical jurisdiction attendant on England's break with
the Roman Catholic Church, rather than to any new understanding
of the sovereign's interest in preventing or punishing the behavior
involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797).
[4] At oral argument a suggestion appeared that,
while the Fourth Amendment's special protection of the home might
prevent the State from enforcing § 16-6-2 against individuals
who engage in consensual sexual activity there, that protection
would not make the statute invalid. See Tr. of Oral Arg. 10-11.
The suggestion misses the point entirely. If the law is not invalid,
then the police can invade the home to enforce it, provided, of
course, that they obtain a determination of probable cause from
a neutral magistrate. One of the reasons for the Court's holding
in Griswold v. Connecticut, 381 U.S. 479 (1965), was precisely
the possibility, and repugnancy, of permitting searches to obtain
evidence regarding the use of contraceptives. Id., at 485-486.
Permitting the kinds of searches that might be necessary to obtain
evidence of the sexual activity banned by § 16-6-2 seems no
less intrusive, or repugnant. Cf. Winston v. Lee, 470 U.S. 753
(1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (CA7
1983). |