Bowers v. Hardwick
Bowers v. Hardwick was a landmark Supreme Court case decided in 1986 that addressed the issue of privacy rights in relation to homosexual practices. The case arose when Michael Hardwick was arrested in Georgia for violating the state's antisodomy law while in the privacy of his own home. With the support of the American Civil Liberties Union, Hardwick challenged the constitutionality of this law, arguing that it infringed upon his right to privacy. However, the Supreme Court, in a narrow 5-4 decision, upheld the Georgia statute, emphasizing a cautious approach to expanding liberties based on substantive due process. Justice Byron R. White, writing for the majority, argued that such rights must be "deeply rooted" in American history and tradition, noting that many states had criminalized homosexual conduct as recently as the 1960s. The ruling drew criticism and raised discussions about the protection of privacy rights for LGBTQ+ individuals, highlighting the ongoing struggle for gay rights in the United States. The case remains significant in the context of discussions around privacy, civil rights, and the evolution of legal protections for LGBTQ+ people.
Bowers v. Hardwick
Date: June 30, 1986
Citation: 478 U.S. 186
Issues: Gay and lesbian rights; right of privacy
Significance: The Supreme Court held that the U.S. Constitution does not protect a right to engage in consensual homosexual conduct.
By 1986 the Supreme Court had established that the due process clauses of the Fifth and Fourteenth Amendments protect a fundamental right to generic privacy, especially in personal choices relating to marriage, procreation, and child rearing.
Proponents of gay rights argued that the right of privacy should be extended to provide protection for homosexual practices, which would invalidate all legislation proscribing such practices. Michael Hardwick, in the privacy of his own bedroom, was arrested for violating Georgia’s antisodomy law. Hardwick, with the assistance of the American Civil Liberties Union, used the arrest to challenge the constitutionality of the Georgia statute.
By a 5-4 vote, the Court upheld the statute. Speaking for the majority, Justice Byron R. White argued that the Court should be cautious about expanding the number of liberties based on the doctrine of substantive due process, and that the liberties protected under the doctrine should be limited to those that are “implicit in the concept of ordered liberty” and those that are “deeply rooted in this Nation’s history and tradition.” White noted that as late as 1961, all fifty states had criminalized homosexual conduct and that half of the states continued to do so. He warned against “judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”
In a concurring opinion, Justice Lewis F. Powell, Jr., wrote that the actual imposition of a criminal penalty for homosexual conduct would be contrary to the principles of the Eighth Amendment. After retiring, Powell told law students that he had “probably made a mistake” in voting with the majority.