Bowers v. Hardwick

478 U.S. 186 (1986).

A United States Supreme Court decision from 1986 that upheld a Georgia law criminalizing certain types of private, consensual sexual activity (oral and anal sex) between adults. The case became a landmark decision in LGBT rights, as it was the first Supreme Court ruling to address the issue of sodomy between two consenting adults in private setting. The ruling was ultimately overturned in 2003 by the Supreme Court‘s decision in Lawrence v. Texas.


Sterling v. Borough of Minersville, 232 F.3d 190, 194-95 (3d Cir. 2000):

In Bowers vHardwick, the Supreme Court overturned a decision of the Court of Appeals of the Eleventh Circuit that had invalidated a Georgia statute that made consensual homosexual sodomy a criminal offense. The majority rejected the claim that the Constitution confers a “fundamental right to homosexuals to engage in consensual sodomy.”

While Bowers indicates that the Court is resistant to bestowing the protection of the Constitution on some sexual behavior, its ruling focused on the practice of homosexual sodomy and is not determinative of whether the right to privacy protects an individual from being forced to disclose his sexual orientation. In other words, the decision did not purport to punish homosexual status. Such a determination would in fact be contrary to the Court’s holding in Robinson v. California, that the Eighth and Fourteenth Amendments forbid punishment of status as opposed to conduct. We do not read Bowers as placing a limit on privacy protection for the intensely personal decision of sexual preference.

Marcum v. McWhorter, 308 F.3d 635, 641 (6th Cir. 2002):

In Bowers v. Hardwick, the Supreme Court rejected the proposition that “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.” Rather, the Court characterized the fundamental liberties recognized in prior decisions qualifying for heightened judicial scrutiny as those that are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [they] were sacrificed” and “deeply rooted in this Nation’s history and tradition.” The Court held that neither of these formulations extended a fundamental right to homosexuals to engage in acts of consensual sodomy, noting that sodomy was a criminal offense at common law and was forbidden by the laws of the thirteen states when they ratified the Bill of Rights. Accordingly, it held that a right to engage in this conduct was not deeply rooted in the Nation’s history and tradition or implicit in the concept of ordered liberty. Furthermore, the Court expressed its reluctance to “take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause,” observing that “[t]he 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.”

State v. Romano, 114 Hawai’i 1, 10-11 (2007):

In Lawrence v. Texas, the Supreme Court reconsidered its earlier holding in Bowers v. Hardwick, where “Hardwick, in his own bedroom, [was observed] engaging in [sodomy] with another adult male.” In doing so the majority adopted the dissent of Justice Stevens in Bowers, where a sodomy statute similar to that in Texas was upheld by the Bowers majority. In his dissent, Justice Stevens rested on two contentions.

First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended, to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married, persons.

The majority in Lawrence decided that “Justice Stevens’ analysis . . . should have been controlling in Bowers and should control here.”

Thus, Lawrence invalidated a criminal statute prohibiting the “particular practice” of sodomy because it involved the “intimacies of . . . physical relationship” and such “intimate choices” should be left to unmarried as well as married persons. Lawrence, then, was concerned with specific conduct seemingly aimed at persons engaged in homosexual relationships. Consequently, Lawrence precludes government interference or regulation of intimate sexual practices or conduct with respect to homosexual as well as heterosexual adults. Such intimate practices or conduct are not at issue in the instant case o prohibited by HRS § 712-1200, the prostitution statute. Lawrence, then, is not federal precedent for the proposition that “private sexual activity” “associated [with a] monetary component,” “abridged” the “right to privacy” as the dissent argues.

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