A Georgia police officer attempted to arrest a Mr. Hardwick for whom they had a warrant for a traffic offense, when the officer broke into his home and found him in in flagrante delicto with another man in bed. He was also arrested for violating Georgia's anti-sodomy law. Those charges were dropped, but apparently he was upset over the matter and sued claiming the law violated his right to privacy and as such the law was unconstitutional. A Federal Appeals court agreed. But then the U.S. Supreme Court, in the case of Bowers v. Hardwick 478 U.S. 186 (1986)*, ruled that the law was constitutional and that even in private, homosexual sodomy could be prosecuted.
(In my opinion, one of those great cases where the Supreme Court shows its wisdom, like Dred Scott v. Sanford. Or lack thereof. See update below on how this case was later revisited and essentially overturned.)
Ironically, three years later, in Powell v. Georgia S98A0755 (Nov. 23, 1998), 270 Ga. 327, 510 S.E. 2d 18* the Supreme Court of the State of Georgia would rule that the law making consentual sodomy in private was unconstitutional in violation of the State Constitution's protection of the right to privacy.
UPDATE: In 2003, the U.S. Supreme Court would revisit the Bowers case in Lawrence v. Texas ___ US ___, 02-102 (June 26, 2003), and decide that a Texas law that prohibits gays from engaging in consentual sodomy in private was unconstitutional because it did not prohibit heterosexuals from engaging in the very same conduct.
See Also: Sex-related Court Cases, Sex Laws in the Fifty States, Landmark Case
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U.S. Supreme Court
BOWERS v. HARDWICK
478 U.S. 186 (1986)*
BOWERS, ATTORNEY GENERAL OF GEORGIA
v.
HARDWICK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 85-140.
Argued March 31, 1986
Decided June 30, 1986
After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.
Held:
The Georgia statute is constitutional. Pp. 190-196.
(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 190-191. (b) Against a background in which many States have criminalized sodomy and still do, 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. Pp. 191-194. (c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 194-195. (d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, distinguished. Pp. 195-196. (e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. P. 196.
760 F.2d 1202, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C. J., post, p. 196, and POWELL, J., post, p. 197, filed concurring opinions. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 199. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 214.
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