Bowers v. Hardwick Primary Source eText

Primary Source

(American Decades Primary Sources: 1980-1989)

Supreme Court decision

By: Byron White, Warren Burger, Lewis F. Powell, and Harry Blackmun

Date: June 30, 1986

Source: White, Byron, Warren Burger, Lewis F. Powell, and Harry Blackmun. Bowers v. Hardwick, 478 U.S. 186. Available online at; website home page: (accessed April 19, 2003).

About the Authosr: Byron White (1917–2002), a Rhodes scholar and talented athlete in college, graduated from Yale University and served on the Supreme Court from 1962 to 1993. Warren Burger (1907–1995) was appointed chief justice of the Supreme Court in 1969 and served until 1986. Lewis F. Powell (1907–1998) served on the Court from 1971 to 1987. Harry Blackmun (1908–1999) was appointed to the Supreme Court in 1970 and remained there until 1994.


For much of the history of the United States, homosexual behavior has been illegal. Sodomy was a crime in all thirteen states when the Constitution was enacted. These laws were not enforced very consistently, but their existence was a constant threat to homosexuals. Thus they were inhibited in their lifestyle, forced either to hide their true nature or else avoid the public eye entirely.

In the mid-twentieth century, attitudes toward homosexuals began to change in the United States. The Kinsey Reports of the 1940s and 1950s revealed that homosexuality was more common than was previously believed. They also showed that many Americans, both hetero-and homosexual, engaged in illegal sexual behavior like sodomy and oral sex. In part because of these revelations, a so-called sexual revolution swept the United States in the 1960s and 1970s, and sodomy laws began to be loosened.

Many states, though, did not repeal their laws against sodomy, including Georgia, which imposed a twenty-year jail term, even for conduct between consenting adults. While serving an outdated, unrelated warrant, a police officer arrested Michael Hardwick for sodomy, but later the charges were dropped. Hardwick used this arrest to challenge Georgia's sodomy law, and this challenge reached the Supreme Court.


In Bowers v. Hardwick, the Supreme Court narrowly sustained Georgia's sodomy law by a 5 to 4 decision, holding homosexual sodomy, even if engaged in consensually and privately, had no constitutional safeguards. Burger concurred, arguing strongly that there was no fundamental right to something banned in "Judeo-Christian moral and ethical standards." Justice Powell stuck a middle ground, holding that there was no fundamental right but that the punishment of twenty years in jail was excessive, and that if Georgia had imposed such a jail term on Hardwick, he might have voted to reverse. The dissent argued that part of our essential freedom to choose is the freedom to make different choices, even sexual ones. The Georgia sodomy law was eventually struck down, not by a federal court, but by the Georgia Supreme Court, which held that it violated Georgia's state constitution.

Homosexuality and personal freedom returned to the forefront of the news in the 1990s when President Clinton (served 1993–2001) attempted to first reverse the ban on gays in the military but then announced a "don't ask, don't tell" policy aimed at keeping the issue private. In the 2002–2003 term, the Court overturned a conviction under a Texas law that makes homosexual sodomy a misdemeanor, with a $200 fine, and does not criminalize heterosexual sodomy. The ruling essentially struck down all sodomy laws as violations of the Due Process Clause, and characterized such laws as thinly veiled attempts to criminalize homosexuality.

Primary Source: Bowers v. Hardwick [excerpt]

SYNOPSIS: Writing for the majority, Justice White first says the only issue is whether there is a constitutional right to conduct sodomy; he holds that there is not, and that this practice does not fall under the types of liberty deemed fundamental to the Constitution. Justice Burger argues that sodomy has always been criminalized and there is nothing in the Constitution to change that. Justice Powell suggests that the law is constitutional but that the twenty-year sentence far outweighs the seriousness of the crime. In his dissent, Justice Blackmun argues that the Georgia law is unconstitutional because people deserve to be "left alone."

Justice White delivered the opinion of the Court.…

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.…

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.…

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.…

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 …A different description of fundamental liberties appeared in Moore v. East Cleveland …where they are characterized as those liberties that are "deeply rooted in this Nation's history and tradition.". . .

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.… Sodomy was a criminal offense at com mon law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.… 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.… 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.

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home.…

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.… 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.

Accordingly, the judgment of the Court of Appeals is


Chief Justice Burger, concurring.

I join the Court's opinion, but I write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.

As the Court notes …the proscriptions against sodomy have very "ancient roots." …Homosexual sodomy was a capital crime under Roman law.… Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." …To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

This is essentially not a question of personal "preferences" but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

Justice Powell, concurring.

I join the opinion of the Court. I agree with the Court that there is no fundamental right—i. e., no substantive right under the Due Process Clause—such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals. This 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 …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. Under the Georgia statute a single act of sodomy, even in the private setting of a home, is a felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery …first-degree arson, …and robbery. . .

In this case, however, respondent has not been tried, much less convicted and sentenced. Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us.…

Justice Blackmun, with whom Justice Brennan,
Justice Marshall, and Justice Stevens join,

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare …than Stanley v. Georgia …was about a fundamental right to watch obscene movies.… 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.". . .

But the fact that the moral judgments expressed …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." …Like Justice Holmes, I believe that "[i]t 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." …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.". . .

I need not reach either the Eighth Amendment or the Equal Protection Clause issues because I believe that Hardwick has stated a cognizable claim that 16-6-2 interferes with constitutionally protected interests in privacy and freedom of intimate association. But neither the Eighth Amendment nor the Equal Protection Clause is so clearly irrelevant that a claim resting on either provision should be peremptorily dismissed. The Court's cramped reading of the issue before it makes for a short opinion, but it does little to make for a persuasive one.…

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.". . .

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.… 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 right of the people to be secure in their …houses," expressly guaranteed by the Fourth Amendment, is perhaps the most "textual" of the various constitutional provisions that inform our understanding of the right to privacy, and thus I cannot agree with the Court's statement that "[t]he right pressed upon us here has no …support in the text of the Constitution." …Indeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy.…

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 security.… 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, …cannot provide an adequate justification.… 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.… 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. A State can no more punish private behavior because 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." …No matter how uncomfortable a certain group may make the majority of this Court, we have held that "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty.". . .

Statutes banning 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.…

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 …let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.…

It took but three years for the Court to see the error in its analysis in Minersville School District v. Gobitis, …and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute.… I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

Further Resources


Baird, Robert M., and M. Katherine Baird. Homosexuality: Debating the Issues. Amherst, N.Y.: Prometheus Books, 1995.

D'Emilio, John, William B. Turner, and Urvashi Vaid. Creating Change: Sexuality, Public Policy, and Civil Rights. New York: St. Martin's Press, 2000.

Irons, Peter H., and Stephanie Guitton. May It Please the Court: The Most Significant Oral Arguments Made Before the Supreme Court Since 1955. New York: New Press, 1984.

Jeffries, John Calvin. Justice Lewis F. Powell, Jr. New York: Scribner's, 1994.


Breyer, Stephen G. "In Memoriam, Justice Harry A. Blackmun: Principle and Compassion." Columbia Law Review 99, no. 6, October 1999, 1393–1408.


Sodomy Laws. Available online at; website home page: (accessed February 13, 2003).