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Bowers v. Hardwick
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| Bowers v. Hardwick | |
| Reference: 478 U.S. 186 | |
| Term: 1986 | |
| Important Dates | |
| Argued: March 31, 1986 Decided: June 30, 1986 | |
| Outcome | |
| United States Court of Appeals for the Eleventh Circuit reversed | |
| Majority | |
| Chief Justice William Rehnquist • Sandra Day O'Connor Byron White | |
| Concurring | |
| Warren Burger • Lewis Powell | |
| Dissenting | |
| William J. Brennan • Thurgood Marshall • Harry Blackmun • John Paul Stevens | |
Bowers v. Hardwick was a case decided on June 30, 1986, by the United States Supreme Court, that held that the Constitution did not prohibit states from making laws punishing sodomy. The Supreme Court overturned this decision in Lawrence v. Texas.[1]
Why it matters: The Supreme Court ruled 5-4 that the Constitution did not prohibit states from passing laws to punish sodomy. Justice Byron White wrote the majority opinion and argued that the Bill of Rights did not contain any language that prohibited states from laws punishing sodomy. He argued that if the Supreme Court ruled otherwise, it would create "judge-made constitutional law."[1]
Background
| Federalism |
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| •Key terms • Court cases •Major arguments • State responses to federal mandates • Federalism by the numbers • Index of articles about federalism |
Michael Hardwick was issued a citation in July 1982 for public drinking. After he missed his court date a police officer obtained a warrant for Hardwick's arrest. Hardwick then settled by paying a $50 fine at a court office. On August 3, 1982, police officers arrived at Hardwick's home and served him the invalid warrant. The officers entered Hardwick's home, opened Hardwick's bedroom door, and observed Hardwick and another man engaged in consensual sex.[2]
The officers arrested both men for sodomy which was a felony under Georgia law and was punishable by one to twenty years in prison. District Attorney Lewis Slaton did not prosecute the sodomy charge, arguing that the warrant was expired and the state law was not meant to punish consensual sexual activity.[3]
Hardwick sued the Attorney General of Georgia, Mike Bowers (D), and asked for a declaratory judgment that the state law was unconstitutional. The American Civil Liberties Union (ACLU) represented Hardwick. The case was filed in the United States District Court for the Northern District of Georgia and was dismissed. Hardwick appealed to the United States Court of Appeals for the Eleventh Circuit which reversed the lower court and found that the Georgia sodomy law infringed Hardwick's constitutional rights. Georgia appealed and the Supreme Court of the United States granted certiorari on November 4, 1985.[4]
Oral argument
Oral argument was held on March 31, 1986. The case was decided on June 30, 1986.[1][4]
Decision
The Supreme Court decided 5-4 that U.S. Constitution did not prohibit states from passing laws punishing sodomy on June 30, 1986.[1]
Justice Byron White wrote the majority opinion and was joined by Justices Chief Justice William Rehnquist and Sandra Day O'Connor.
Justices Warren Burger and Lewis Powell wrote concurring opinions.
Justices William J. Brennan, Thurgood Marshall, Harry Blackmun, and John Paul Stevens dissented.[1]
Opinions
Majority opinion
The Supreme Court, on June 30, 1986, held 5-4 that the Georgia state law punishing sodomy was constitutional.[1]
Justice Byron White, writing for the majority, argued that the due process clause did not protect the right to privacy at the time that it was adopted and warned that there should be resistance to expanding the due process clause to include new fundamental rights:[4]
| “ | There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. | ” |
Justice White argued that the due process clause could not have been written to include the protection to practice sodomy because many states criminalized sodomy when the due process clause was written:[4]
| “ | Against a background in which many States have criminalized sodomy and still do, 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. | ” |
Concurring opinions
Justice Warren Burger and Justice Lewis Powell wrote separate concurring opinions.[1]
Justice Burger's concurring opinion
Justice Burger wrote separately "to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy."[4] He argued that declaring the state law unconstitutional would cast aside millennia of moral teaching: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."[4]
Justice Powell's concurring opinion
Justice Powell wrote a separate concurring opinion and agreed with the majority that there is no substantive right to privacy protected under the due process clause: "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."[4] Justice Powell argued that the sentence of imprisonment for up to twenty years might conflict with the Eighth Amendment:
| “ | In my view, a prison sentence for such conduct—certainly a sentence of long duration—would create a serious Eighth Amendment issue. 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. | ” |
Dissenting opinions
Justice Harry Blackmun and John Paul Stevens wrote separate dissenting opinions.[1]
Justice Blackmun's dissent
Justice Blackmun argued that the "majority has distorted the question this case presents."[6] Justice Blackmun argued that the majority obsessively focussed on homosexuality instead of considering the right to privacy:
| “ | [T]he Court's almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. | ” |
Justice Stevens' dissent
Justice Stevens argued that the Supreme Court was wrong not to consider the constitutionality of the state law. Stevens argued that the Supreme Court dismissed the respondent's constitutional claims because it only considered the state law's application to homosexual conduct:
| “ | 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. | ” |
Impact
After Bowers was decided several state legislatures repealed their state laws criminalizing sodomy. The Georgia Supreme Court in 1998 struck down its state sodomy law in the case Powell v. State.[7]
The U.S. Supreme Court, in Lawrence v. Texas explicitly overturned Bowers v. Hardwick. Justice Anthony Kennedy wrote the majority opinion and held that Texas's state sodomy law violated the due process clause of the Fourteenth Amendment.[8]
See also
External links
- Full text of case syllabus and opinions (Justia)
- Supreme Court of the United States
- Search Google News for this topic
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Oyez, Bowers v. Hardwick, accessed October 3, 2022
- ↑ Internet Archive, Dishonorable Passions, William N. Eskridge, accessed October 3, 2022
- ↑ Internet Archive, Dishonorable Passions, William N. Eskridge, accessed October 3, 2022
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 JUSTIA, Bowers v. Hardwick, accessed October 3, 2022
- ↑ 5.0 5.1 5.2 5.3 5.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Cornell Law School, Bowers v. Hardwick, accessed October 3, 2022
- ↑ JUSTIA, Powell v. State, accessed December 12, 2022
- ↑ JUSTIA, Lawrence v. Texas, accessed December 12, 2022
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