Bowers v. Hardwick,
478
Justice WHITE
delivered the opinion of the Court.
In August 1982, respondent Hardwick
(hereafter respondent) was charged with violating the
Respondent then brought suit in the
A divided panel of the Court of Appeals
for the Eleventh Circuit reversed.
[W]e granted the Attorney General's
petition for certiorari questioning the holding that the sodomy statute
violates the fundamental rights of homosexuals. We agree with petitioner that
the Court of Appeals erred, and hence reverse its judgment.
This case does not require a judgment on
whether laws against sodomy between consenting adults in general, or between
homosexuals in particular, are wise or desirable. It raises no question about
the right or propriety of state legislative decisions to repeal their laws that
criminalize homosexual sodomy, or of state-court decisions invalidating those
laws on state constitutional grounds. 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.
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
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.
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
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 common law and was forbidden by the laws of
the original thirteen States when they ratified the Bill of Rights. In 1868,
when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the
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.
* * *
We . . . 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
Reversed.
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 2844, than Stanley v. Georgia 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
The statute at issue 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." But the fact that
the moral judgments expressed by statutes like §
I
In its haste to reverse the Court of
Appeals and hold that the Constitution does not "confe[r]
a fundamental right upon homosexuals to engage in sodomy," the Court
relegates the actual statute being challenged to a footnote and ignores the
procedural posture of the case before it. A fair reading of the statute
and of the complaint clearly reveals that the majority has distorted the
question this case presents.
First, the Court's almost obsessive focus
on homosexual activity is particularly hard to justify in light of the broad
language
Second, I disagree with the Court's
refusal to consider whether §
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.
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." 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
"clos[ing] 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. "[T]he concept of privacy embodies the 'moral fact
that a person belongs to himself and not others nor to
society as a whole.' " Thornburgh v.
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.
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."
* * *
* * *
The core of petitioner's defense of §
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. . . . 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 for §
* * *
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. . . .
I dissent.