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BOWERS,
Attorney General of Georgia v. HARDWICK
et al.
SUPREME
COURT OF THE UNITED STATES
478 U.S.
186; 106 S. Ct.
2841
Decided:
June
30, 1986
JUSTICE WHITE delivered the
opinion of the Court.
In August 1982, respondent
Hardwick (hereafter respondent) was charged with violating the Georgia
statute criminalizing sodomy n1 by committing that act with another adult
male in the bedroom of respondent's home.
After a preliminary hearing, the District Attorney decided not to
present the matter to the grand jury unless further evidence developed.
n1 Georgia Code Ann. § 16-6-2 (1984) provides, in pertinent part, as
follows:
"(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 Federal District Court,
challenging the constitutionality of the statute insofar as it criminalized
consensual sodomy. n2 He asserted that he was a
practicing homosexual, that the Georgia
sodomy statute, as administered by the defendants, placed him in imminent
danger of arrest, and that the statute for several reasons violates the
Federal Constitution. The District
Court granted the defendants' motion to dismiss for failure to state a claim,
relying on Doe v. Commonwealth's Attorney for the City of Richmond,
403 F.Supp. 1199 (ED Va. 1975), which this Court summarily
affirmed, 425 U.S. 901 (1976).
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. Id., at
5. The District Court held, however,
that because they had neither sustained, nor were in immediate danger of
sustaining, any direct injury from the enforcement of the statute, they did
not have proper standing to maintain the action. Id., at
18. The Court of Appeals affirmed the
District Court's judgment dismissing the Does' claim for lack of standing,
760 F.2d 1202, 1206-1207 (CA11 1985), and the Does do not challenge that
holding in this Court.
The only claim properly
before the Court, therefore, is Hardwick's challenge to the Georgia
statute as applied to consensual homosexual sodomy. We express no opinion on
the constitutionality of the Georgia
statute as applied to other acts of sodomy.
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 U.S. 1,
14 (1976); Massachusetts
Board of Retirement v. Murgia, 427 U.S.
307, 309, n. 1 (1976); Edelman v. Jordan,
415 U.S.
651, 671 (1974). Cf. Hicks v. Miranda,
422 U.S.
332, 344 (1975).
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 U.S.
678, 685 (1977). Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923),
were described as dealing with child rearing and education; Prince v.
Massachusetts, 321 U.S. 158 (1944), with family relationships; Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535 (1942),
with procreation; Loving v. Virginia, 388 U.S. 1 (1967), with marriage; Griswold
v. Connecticut, supra, and Eisenstadt v. Baird,
supra, with contraception; and Roe v. Wade, 410 U.S. 113 (1973), with
abortion. The latter three cases were
interpreted as construing the Due Process Clause of the Fourteenth Amendment
to confer a fundamental individual right to decide whether or not to beget or
bear a child. Carey v. Population
Services International, supra, at 688-689.
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 U.S., at
688, n. 5, 694, n. 17.
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 U.S.
319, 325, 326 (1937), it was said that this category includes those
fundamental liberties that are "implicit in the concept of ordered
liberty," such that "neither liberty nor justice would exist if
[they] were sacrificed." A different description of fundamental
liberties appeared in Moore v. East
Cleveland, 431 U.S.
494, 503 (1977) (opinion of POWELL, J.), where they are characterized as
those liberties that are "deeply rooted in this Nation's history and
tradition." Id., at
503 (POWELL, J.). See also Griswold v.
Connecticut,
381 U.S., at
506.
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. Miami L.
Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was
forbidden by the laws of the original 13 States when they ratified the Bill of
Rights. n5 In 1868, when the Fourteenth Amendment
was ratified, all but 5 of the 37 States in the Union had
criminal sodomy laws. n6 In fact, until 1961, n7 all 50 States outlawed
sodomy, and today, 24 States and the District of Columbia continue to provide
criminal penalties for sodomy performed in private and between consenting
adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. 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.
n5
Criminal sodomy laws in effect in 1791:
Connecticut: 1
Public Statute Laws of the State of Connecticut,
1808, Title LXVI, ch. 1, § 2 (rev. 1672).
Delaware: 1
Laws of the State of Delaware,
1797, ch. 22, § 5 (passed 1719).
Georgia had
no criminal sodomy statute until 1816, but sodomy was a crime at common law,
and the General Assembly adopted the common law of England as
the law of Georgia in
1784. The First Laws of the State of Georgia,
pt. 1, p. 290 (1981).
Maryland had
no criminal sodomy statute in 1791. Maryland's
Declaration of Rights, passed in 1776, however, stated that "the
inhabitants of Maryland are
entitled to the common law of England,"
and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of
United States
Constitutions 372 (1975).
Massachusetts:
Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.
New
Hampshire passed its first sodomy
statute in 1718. Acts and Laws of New
Hampshire 1680-1726, p. 141 (1978).
Sodomy
was a crime at common law in New
Jersey at the time of the
ratification of the Bill of Rights.
The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New
York: Laws of New
York, ch. 21
(passed 1787).
At
the time of ratification of the Bill of Rights, North
Carolina had adopted the English
statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the
Parliament of England in
Force in the State of North-Carolina, ch. 17, p. 314 (Martin ed. 1792).
Pennsylvania:
Laws of the Fourteenth General Assembly of the Commonwealth of
Pennsylvania, ch. CLIV, § 2 (passed 1790).
Rhode
Island passed its first sodomy
law in 1662. The Earliest Acts and
Laws of the Colony of Rhode Island and
Providence
Plantations 1647-1719, p. 142 (1977).
South
Carolina: Public Laws of the State
of South Carolina, p.
49 (1790).
At
the time of the ratification of the Bill of Rights, Virginia had
no specific statute outlawing sodomy, but had adopted the English common law.
9 Hening's Laws of Virginia, ch.
5, § 6, p.
127 (1821) (passed 1776).
n6 Criminal sodomy statutes
in effect in 1868:
Alabama: Ala. Rev. Code § 3604 (1867).
Arizona (Terr.): Howell Code, ch. 10, § 48 (1865).
Arkansas: Ark.
Stat., ch. 51, Art. IV, § 5 (1858).
California: 1 Cal. Gen. Laws, para. 1450,
§ 48 (1865).
Colorado (Terr.): Colo. Rev.
Stat., ch. 22, § §
45, 46 (1868).
Connecticut:
Conn. Gen. Stat., Tit. 122, ch. 7, § 124 (1866).
Delaware:
Del. Rev. Stat., ch. 131, § 7 (1893).
Florida:
Fla. Rev. Stat., div. 5, §
2614 (passed 1868) (1892).
Georgia: Ga.
Code § § 4286, 4287, 4290 (1867).
Kingdom of
Hawaii:
Haw. Penal Code, ch. 13, § 11 (1869).
Illinois: Ill. Rev. Stat., div. 5, §
§ 49, 50 (1845).
Kansas (Terr.): Kan.
Stat., ch. 53, § 7 (1855).
Kentucky: 1 Ky.
Rev. Stat., ch. 28, Art. IV, § 11 (1860).
Louisiana:
La. Rev. Stat., Crimes and Offences, § 5 (1856).
Maine:
Me. Rev. Stat., Tit. XII, ch. 160, § 4 (1840).
Maryland: 1 Md.
Code, Art. 30, § 201
(1860).
Massachusetts:
Mass. Gen. Stat., ch. 165, § 18 (1860).
Michigan:
Mich. Rev. Stat., Tit. 30, ch. 158, § 16 (1846).
Minnesota: Minn.
Stat., ch. 96, § 13 (1859).
Mississippi:
Miss. Rev. Code, ch. 64, § LII, Art. 238 (1857).
Missouri: 1 Mo.
Rev. Stat., ch. 50, Art. VIII, § 7 (1856).
Montana (Terr.): Mont.
Acts, Resolutions, Memorials, Criminal Practice Acts, ch.
IV, § 44
(1866).
Nebraska (Terr.): Neb. Rev. Stat., Crim.
Code, ch. 4, § 47 (1866).
Nevada (Terr.): Nev.
Comp. Laws, 1861-1900, Crimes and Punishments, § 45.
New Hampshire: N.
H. Laws, Act. of June 19, 1812,
§ 5 (1815).
New Jersey: N.
J. Rev. Stat., Tit. 8, ch. 1, § 9 (1847).
New York: 3
N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 5, § 20 (5th ed.
1859).
North Carolina: N.
C. Rev. Code, ch. 34, § 6 (1855).
Oregon:
Laws of Ore.,
Crimes -- Against Morality, etc., ch. 7, § 655 (1874).
Pennsylvania:
Act of Mar.
31, 1860, § 32, Pub. L. 392, in 1 Digest of Statute
Law of Pa.
1700-1903, p. 1011 (Purdon 1905).
Rhode Island: R.
I. Gen. Stat., ch. 232, § 12 (1872).
South Carolina:
Act of 1712, in 2 Stat. at Large of S. C. 1682-1716, p. 493 (1837).
Tennessee: Tenn.
Code, ch. 8, Art. 1, § 4843 (1858).
Texas:
Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887)
(passed 1860).
Vermont:
Acts and Laws of the State of Vt. (1779).
Virginia: Va. Code, ch. 149, § 12 (1868).
West Virginia: W. Va. Code,
ch. 149, § 12 (1868).
Wisconsin (Terr.): Wis.
Stat. § 14,
p. 367 (1839).
n7 In 1961, Illinois
adopted the American Law Institute's Model Penal Code, which decriminalized
adult, consensual, private, sexual conduct. Criminal Code of 1961, § § 11-2, 11-3, 1961
Ill. Laws, pp. 1985, 2006 (codified as amended at Ill. Rev. Stat., ch. 38, paras. 11-2, 11-3
(1983) (repealed 1984)). See American
Law Institute, Model Penal Code § 213.2 (Proposed Official Draft
1962).
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." Id., at
565.
Stanley did
protect conduct that would not have been protected outside the home, and it
partially prevented the enforcement of state obscenity laws; but the decision
was firmly grounded in the First Amendment. The right pressed upon us here
has no similar support in the text of the Constitution, and it does not qualify
for recognition under the prevailing principles for construing the Fourteenth
Amendment. Its limits are also difficult to discern. 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. Stanley
itself recognized that its holding offered no protection for the possession
in the home of drugs, firearms, or stolen goods. Id., at
568, n. 11. 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. n8
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 England,
including its prohibition of sodomy, became the received law of Georgia and
the other Colonies. In 1816 the
Georgia Legislature passed the statute at issue here, and that statute has
been continuously in force in one form or another since that time. 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, Ga. Code Ann. § 16-6-2
(1984), 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, § 16-5-24, first-degree arson, § 16-7-60, and robbery, § 16-8-40. n1
n1 Among those States that continue to make
sodomy a crime, Georgia
authorizes one of the longest possible sentences. See Ala. Code § 13A-6-65(a)(3) (1982) (1-year maximum);
Ariz. Rev. Stat. Ann. § § 13-1411, 13-1412 (West Supp. 1985) (30
days); Ark. Stat. Ann. § 41-1813
(1977) (1-year maximum); D. C. Code §
22-3502 (1981) (10-year maximum); Fla. Stat. § 800.02 (1985) (60-day maximum); Ga. Code
Ann. § 16-6-2 (1984) (1 to 20 years);
Idaho Code § 18-6605 (1979) (5-year
minimum); Kan. Stat. Ann. § 21-3505
(Supp. 1985) (6-month maximum); Ky. Rev. Stat. § 510.100 (1985) (90 days to 12 months); La.
Rev. Stat. Ann. § 14:89 (West 1986)
(5-year maximum); Md. Ann. Code, Art. 27, § § 553-554 (1982) (10-year maximum); Mich.
Comp. Laws § 750.158 (1968) (15-year
maximum); Minn. Stat. § 609.293 (1984)
(1-year maximum); Miss. Code Ann. §
97-29-59 (1973) (10-year maximum); Mo. Rev. Stat. § 566.090 (Supp. 1984) (1-year maximum);
Mont. Code Ann. § 45-5-505 (1985)
(10-year maximum); Nev. Rev. Stat. §
201.190 (1985) (6-year maximum); N. C. Gen. Stat. § 14-177 (1981) (10-year maximum); Okla.
Stat., Tit. 21, § 886 (1981) (10-year
maximum); R. I. Gen. Laws § 11-10-1
(1981) (7 to 20 years); S. C. Code §
16-15-120 (1985) (5-year maximum); Tenn. Code Ann. § 39-2-612 (1982) (5 to 15 years); Tex. Penal
Code Ann. § 21.06 (1974) ($ 200
maximum fine); Utah Code Ann. §
76-5-403 (1978) (6-month maximum); Va. Code § 18.2-361 (1982) (5-year maximum).
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 Ga.
467, 200 S. E. 799 (1939). Moreover, the State has declined to present the
criminal charge against Hardwick to a grand jury, and this is a suit for
declaratory judgment brought by respondents challenging the validity of the
statute. The history of nonenforcement suggests the moribund character today of
laws criminalizing this type of private, consensual conduct. Some 26 States have repealed similar
statutes. But the constitutional
validity of the Georgia
statute was put in issue by respondents, and for the reasons stated by the
Court, I cannot say that conduct condemned for hundreds of years has now
become a fundamental right.
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. United
States, 277 U.S.
438, 478 (1928) (Brandeis, J., dissenting).
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 § 16-6-2 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.'"
Roe v. Wade, 410 U.S.
113, 117 (1973), quoting Lochner v. New
York, 198 U.S. 45,
76 (1905) (Holmes, J., dissenting).
Like Justice Holmes, I believe that "[it] 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." Holmes, The Path
of the Law, 10 Harv. L. Rev. 457, 469 (1897). 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.'"
Herring v. State, 119 Ga.
709, 721, 46 S. E. 876, 882 (1904).
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 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. Cf. ante, at 188, n. 2. Rather, Georgia has
provided that "[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." Ga.
Code Ann. § 16-6-2(a)
(1984). The sex or status of the persons
who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a
legislative purpose for Georgia's
1968 enactment of § 16-6-2,
that purpose seems to have been to broaden the coverage of the law to reach
heterosexual as well as homosexual activity. n1 I therefore
see no basis for the Court's decision to treat this case as an "as
applied" challenge to § 16-6-2,
see ante, at 188, n. 2, or for Georgia's
attempt, both in its brief and at oral argument, to defend § 16-6-2 solely on the grounds that it
prohibits homosexual activity. Michael
Hardwick's standing may rest in significant part on Georgia's
apparent willingness to enforce against homosexuals a law it seems not to
have any desire to enforce against heterosexuals. See Tr. of Oral Arg.
4-5; cf. 760 F.2d 1202, 1205-1206
(CA11 1985). But his claim that § 16-6-2
involves an unconstitutional intrusion into his privacy and his right of
intimate association does not depend in any way on his sexual orientation.
n1 Until 1968, Georgia
defined sodomy as "the carnal knowledge and connection against the order
of nature, by man with man, or in the same unnatural manner with woman."
Ga. Crim. Code § 26-5901 (1933). In Thompson v. Aldredge,
187 Ga.
467, 200 S. E. 799 (1939), the Georgia
Supreme Court held that §
26-5901 did not prohibit lesbian activity. And in Riley v. Garrett, 219 Ga.
345, 133 S. E. 2d 367 (1963), the Georgia Supreme Court held that § 26-5901 did not
prohibit heterosexual cunnilingus. Georgia
passed the act-specific statute currently in force "perhaps in response
to the restrictive court decisions such as Riley," Note, The Crimes
Against Nature, 16 J. Pub. L. 159, 167, n. 47 (1967).
Second, I disagree with the
Court's refusal to consider whether § 16-6-2</ |
