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BOWERS,
Attorney General of SUPREME
COURT OF THE UNITED STATES 478 Decided:
JUSTICE WHITE delivered the
opinion of the Court. In August 1982, respondent
Hardwick (hereafter respondent) was charged with violating the n1 Georgia Code Ann. § "(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. . . ." Respondent then brought
suit in the n2 John and Mary Doe were also plaintiffs in the
action. They alleged that they wished
to engage in sexual activity proscribed by §
16-6-2 in the privacy of their home, App. 3, and that they had been
"chilled and deterred" from engaging in such activity by both the
existence of the statute and Hardwick's arrest. The only claim properly
before the Court, therefore, is Hardwick's challenge to the 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. Because other Courts of
Appeals have arrived at judgments contrary to that of the Eleventh Circuit in
this case, n3 we 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. n4 n3
See Baker v. Wade, 769 F.2d 289, rehearing denied, 774 F.2d 1285 (CA5 1985)
(en banc); Dronenburg v. Zech, 239 U. S. App. D. C.
229, 741 F.2d 1388, rehearing denied, 241 U. S. App. D. C. 262, 746 F.2d 1579
(1984). n4 Petitioner also
submits that the Court of Appeals erred in holding that the District Court
was not obligated to follow our summary affirmance
in Doe. We need not resolve this
dispute, for we prefer to give plenary consideration to the merits of this case
rather than rely on our earlier action in Doe. See Usery v.
Turner Elkhorn Mining Co., 428 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. 431 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. 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. n5
Criminal sodomy laws in effect in 1791: Sodomy
was a crime at common law in At
the time of ratification of the Bill of Rights, At
the time of the ratification of the Bill of Rights, n6 Criminal sodomy statutes
in effect in 1868: Alabama: Ala. Rev. Code § 3604 (1867). Arizona (Terr.): Howell Code, ch. 10, § 48 (1865). California: 1 Cal. Gen. Laws, para. 1450,
§ 48 (1865). Colorado (Terr.): Colo. Rev.
Stat., ch. 22, § §
45, 46 (1868). Illinois: Ill. Rev. Stat., div. 5, §
§ 49, 50 (1845). Virginia: Va. Code, ch. 149, § 12 (1868). West Virginia: W. Va. Code,
ch. 149, § 12 (1868). n7 In 1961, 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. 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." 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 n8 Respondent does not defend the judgment below
based on the Ninth Amendment, the Equal Protection Clause, or the Eighth
Amendment. Accordingly, the judgment
of the Court of Appeals is Reversed. 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, ante,
at 192, the proscriptions against sodomy have very "ancient roots."
Decisions of individuals relating to homosexual conduct have been subject to
state intervention throughout the history of Western civilization. Condemnation of those practices is firmly
rooted in Judeao-Christian moral and ethical
standards. Homosexual sodomy was a
capital crime under Roman law. See
Code Theod. 9.7.6; Code Just. 9.9.31. See also D.
Bailey, Homosexuality and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers
of the ecclesiastical courts were transferred to the King's Courts, the first
English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. 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." 4 W. Blackstone, Commentaries *215. The common law of 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 n1 Among those States that continue to make
sodomy a crime, In this case, however,
respondent has not been tried, much less convicted and sentenced. n2 Moreover, respondent has not raised the Eighth
Amendment issue below. For these
reasons this constitutional argument is not before us. n2 It was conceded at oral argument that, prior
to the complaint against respondent Hardwick, there had been no reported
decision involving prosecution for private homosexual sodomy under this
statute for several decades. See
Thompson v. Aldredge, 187 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. 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 § I In its haste to reverse the
Court of Appeals and hold that the Constitution does not "[confer] a
fundamental right upon homosexuals to engage in sodomy," ante, at 190,
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 n1 Until 1968, Second, I disagree with the
Court's refusal to consider whether § n2
In Robinson v. California, 370 U.S. 660 (1962), the Court held that the
Eighth Amendment barred convicting a defendant due to his "status"
as a narcotics addict, since that condition was "apparently an illness
which may be contracted innocently or involuntarily." "Analysis
of this difficult case is not advanced by preoccupation with the label
'condition.' In Robinson the Court dealt with 'a statute which makes the
"status" of narcotic addiction a criminal offense . . . .' 370 Despite historical views of
homosexuality, it is no longer viewed by mental health professionals as a
"disease" or disorder. See
Brief for American Psychological Association and American Public Health Association
as Amici Curiae 8-11. But, obviously, neither is it simply a
matter of deliberate personal election.
Homosexual orientation may well form part of the very fiber of an
individual's personality.
Consequently, under JUSTICE WHITE's analysis
in Powell, the Eighth Amendment may pose a constitutional barrier to sending
an individual to prison for acting on that attraction regardless of the
circumstances. An individual's ability
to make constitutionally protected "decisions concerning sexual
relations," Carey v. Population Services International, 431 With respect to the Equal
Protection Clause's applicability to §
16-6-2, I note that Georgia's exclusive stress before this Court on
its interest in prosecuting homosexual activity despite the gender-neutral
terms of the statute may raise serious questions of discriminatory
enforcement, questions that cannot be disposed of before this Court on a
motion to dismiss. See Yick Wo
v. Hopkins, 118 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." 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. 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 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." B The behavior for which
Hardwick faces prosecution occurred in his own home, a place to which the
Fourth Amendment attaches special significance. The Court's treatment of this aspect of the
case is symptomatic of its overall refusal to consider the broad principles
that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than
the mere aggregation of a number of entitlements to engage in specific
behavior, so too, protecting the physical integrity of the home is more than
merely a means of protecting specific activities that often take place there. Even when our understanding of the contours
of the right to privacy depends on "reference to a 'place,'" Katz
v. United States, 389 U.S., at 361 (Harlan, J., concurring), "the
essence of a Fourth Amendment violation is 'not the breaking of [a person's]
doors, and the rummaging of his drawers,' but rather is 'the invasion of his
indefeasible right of personal security, personal liberty and private
property.'" The Court's interpretation
of the pivotal case of "'The
makers of our Constitution undertook to secure conditions favorable to the pursuit
of happiness. They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part
of the pain, pleasure and satisfactions of life are to be found in material
things. They sought to protect Americans
in their beliefs, their thoughts, their emotions and their sensations.' "These are the rights that appellant is asserting in the case
before us. He is asserting the right
to read or observe what he pleases -- the right to satisfy his intellectual
and emotional needs in the privacy of his own home." 394 The central place that III The Court's failure to
comprehend the magnitude of the liberty interests at stake in this case leads
it to slight the question whether petitioner, on behalf of the State, has
justified First, petitioner asserts
that the acts made criminal by the statute may have serious adverse
consequences for "the general public health and welfare," such as
spreading communicable diseases or fostering other criminal activity. Brief for Petitioner 37. Inasmuch as this case was dismissed by the
District Court on the pleadings, it is not surprising that the record before
us is barren of any evidence to support petitioner's claim. n3 In light of the state of the record, I see no justification for the Court's attempt to
equate the private, consensual sexual activity at issue here with the
"possession in the home of drugs, firearms, or stolen goods," ante,
at 195, to which n3
Even if a court faced with a challenge to §
16-6-2 were to apply simple rational-basis scrutiny to the statute, Georgia
would be required to show an actual connection between the forbidden acts and
the ill effects it seeks to prevent.
The connection between the acts prohibited by § 16-6-2 and the harms identified by
petitioner in his brief before this Court is a subject of hot dispute, hardly
amenable to dismissal under Federal Rule of Civil Procedure 12(b)(6). Compare, e. g., Brief for Petitioner 36-37
and Brief for David Robinson, Jr., as Amicus Curiae 23-28, on the one hand,
with People v. Onofre, 51 N. Y. 2d 476, 489, 415 N.
E. 2d 936, 941 (1980); Brief for the Attorney General of the State of New
York, joined by the Attorney General of the State of California, as Amici Curiae 11-14; and Brief for the American
Psychological Association and American Public Health Association as Amici Curiae 19-27, on the other. n4
Although I do not think it necessary to decide today issues that are not even
remotely before us, it does seem to me that a court could find simple,
analytically sound distinctions between certain private, consensual sexual
conduct, on the one hand, and adultery and incest (the only two vaguely
specific "sexual crimes" to which the majority points, ante, at
196), on the other. For example,
marriage, in addition to its spiritual aspects, is a civil contract that
entitles the contracting parties to a variety of governmentally provided
benefits. A State might define the
contractual commitment necessary to become eligible for these benefits to
include a commitment of fidelity and then punish individuals for breaching
that contract. Moreover, a State might
conclude that adultery is likely to injure third persons, in particular,
spouses and children of persons who engage in extramarital affairs. With respect to incest, a court might well
agree with respondent that the nature of familial relationships renders true
consent to incestuous activity sufficiently problematical that a blanket
prohibition of such activity is warranted.
See Tr. of Oral 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 § 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
n5 The parallel between Loving and this case is
almost uncanny. There, too, the State
relied on a religious justification for its law. Compare 388 The assertion that
"traditional Judeo-Christian values proscribe" the conduct
involved, Brief for Petitioner 20, cannot provide an adequate justification
for § n6 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 Nor can § n7
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 § 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. IV It took but three years for
the Court to see the error in its analysis in Minersville School District v. Gobitis, 310 U.S. 586 (1940), 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. See West Virginia Board of
Education v. Barnette, 319 U.S. 624 (1943). 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. JUSTICE STEVENS, with whom
JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. Like the statute that is
challenged in this case, n1 the rationale of the Court's opinion applies equally
to the prohibited conduct regardless of whether the parties who engage in it
are married or unmarried, or are of the same or different sexes. n2 Sodomy was condemned as an odious and sinful type of
behavior during the formative period of the common law. n3 That condemnation was equally
damning for heterosexual and homosexual sodomy. n4
Moreover, it provided no special
exemption for married couples. n5 The license to
cohabit and to produce legitimate offspring simply did not include any
permission to engage in sexual conduct that was considered a "crime
against nature." n1 See Ga. Code Ann. § n2
The Court states that 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." Ante, at 190. In reality, however, it is the
indiscriminate prohibition of sodomy, heterosexual as well as homosexual, that has been present "for a very long
time." See nn. 3, 4, and 5, infra. Moreover, the reasoning the Court employs
would provide the same support for the statute as it is written as it does
for the statute as it is narrowly construed by the Court. n3
See, e. g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed. 1787) ("All
unnatural carnal copulations, whether with man or beast, seem to come under
the notion of sodomy, which was felony by the antient
common law, and punished, according to some authors, with burning; according
to others, . . . with burying alive"); 4 W. Blackstone, Commentaries
*215 (discussing "the infamous crime against nature, committed either
with man or beast; a crime which ought to be strictly and impartially proved,
and then as strictly and impartially punished"). n4
See 1 E. East, Pleas of the Crown 480 (1803) ("This offence, concerning
which the least notice is the best, consists in a carnal knowledge committed
against the order of nature by man with man, or in the same unnatural manner
with woman, or by man or woman in any manner with beast"); J. Hawley &
M. McGregor, The Criminal Law 287 (3d ed. 1899) ("Sodomy is the carnal
knowledge against the order of nature by two persons with each other, or of a
human being with a beast. . . . The
offense may be committed between a man and a woman, or between two male
persons, or between a man or a woman and a beast"). n5
See J. May, The Law of Crimes § 203
(2d ed. 1893) ("Sodomy, otherwise called buggery, bestiality, and the
crime against nature, is the unnatural copulation of two persons with each
other, or of a human being with a beast. . . . It may be committed by a man with a man, by
a man with a beast, or by a woman with a beast, or by a man with a woman --
his wife, in which case, if she consent, she is an
accomplice"). The history of the n6 The predecessor of the current n7 See Thompson v. Aldredge,
187 n8 A review of the statutes cited by the majority
discloses that, in 1791, in 1868, and today, the vast majority of sodomy
statutes do not differentiate between homosexual and heterosexual sodomy. Because the Georgia statute
expresses the traditional view that sodomy is an immoral kind of conduct
regardless of the identity of the persons who engage in it, I believe that a
proper analysis of its constitutionality requires consideration of two questions:
First, may a State totally prohibit the described conduct by means of a
neutral law applying without exception to all persons subject to its
jurisdiction? If not, may the State save the statute by announcing that it
will only enforce the law against homosexuals? The two questions merit
separate discussion. I Our prior cases make two
propositions abundantly clear. 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. n9 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. Griswold v.
Connecticut, 381 U.S. 479 (1965). Moreover, this protection extends to
intimate choices by unmarried as well as married persons. Carey v. Population Services International,
431 U.S. 678 (1977); Eisenstadt v. Baird, 405 U.S.
438 (1972). n9 See Loving v. In consideration of claims
of this kind, the Court has emphasized the individual interest in privacy,
but its decisions have actually been animated by an even more fundamental
concern. As I wrote some years ago: "These cases do not
deal with the individual's interest in protection from unwarranted public
attention, comment, or exploitation. They deal, rather, with the individual's
right to make certain unusually important decisions that will affect his own,
or his family's, destiny. The Court
has referred to such decisions as implicating 'basic values,' as being
'fundamental,' and as being dignified by history and tradition. The character of the Court's language in
these cases brings to mind the origins of the American heritage of freedom --
the abiding interest in individual liberty that makes certain state intrusions
on the citizen's right to decide how he will live his own life
intolerable. Guided by history, our
tradition of respect for the dignity of individual choice in matters of
conscience and the restraints implicit in the federal system, federal judges
have accepted the responsibility for recognition and protection of these
rights in appropriate cases." Fitzgerald v. Society has every right to
encourage its individual members to follow particular traditions in
expressing affection for one another and in gratifying their personal
desires. It, of course, may prohibit
an individual from imposing his will on another to satisfy his own selfish
interests. It also may prevent an individual
from interfering with, or violating, a legally sanctioned and protected
relationship, such as marriage. And it may explain the relative advantages
and disadvantages of different forms of intimate expression. But when individual married couples are isolated
from observation by others, the way in which they voluntarily choose to
conduct their intimate relations is a matter for them -- not the State -- to
decide. n10 The essential "liberty" that
animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage
in nonreproductive, sexual conduct that others may
consider offensive or immoral. n10 Indeed, the Georgia Attorney General concedes
that Paradoxical as it may seem,
our prior cases thus establish that a State may not prohibit sodomy within
"the sacred precincts of marital bedrooms," Griswold, 381 U.S., at
485, or, indeed, between unmarried heterosexual adults. Eisenstadt,
405 U.S., at 453. In all events, it is perfectly clear that the State of II If the The first possibility is
plainly unacceptable. Although the meaning of the principle that "all
men are created equal" is not always clear, it surely must mean that
every free citizen has the same interest in "liberty" that the
members of the majority share. From
the standpoint of the individual, the homosexual and the heterosexual have
the same interest in deciding how he will live his own life, and, more
narrowly, how he will conduct himself in his personal and voluntary associations
with his companions. State intrusion
into the private conduct of either is equally burdensome. The second possibility is
similarly unacceptable. A policy of selective application must be supported
by a neutral and legitimate interest -- something more substantial than a
habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has
identified any such interest in this case.
The Court has posited as a justification for the Nor, indeed, does the n11 Ante, at 198, n. 2 (POWELL, J.,
concurring). See also Tr. of Oral Arg. 4-5 (argument of Georgia Attorney General) (noting,
in response to question about prosecution "where the activity took place
in a private residence," the "last case I can recall was back in
the 1930's or 40's"). n12 It is, of course, possible to argue that a
statute has a purely symbolic role.
Cf. Carey v. Population
Services International, 431 Both the III 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. n13 n13 Indeed, at this stage,
it appears that the statute indiscriminately authorizes a policy of selective
prosecution that is neither limited to the class of homosexual persons nor
embraces all persons in that class, but rather applies to those who may be
arbitrarily selected by the prosecutor for reasons that are not revealed
either in the record of this case or in the text of the statute. If that is true, although the text of the
statute is clear enough, its true meaning may be "so intolerably vague
that evenhanded enforcement of the law is a virtual impossibility."
Marks v. I respectfully dissent. |
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