U.S. Supreme Court
BOWERS v. HARDWICK, 478 U.S. 186 (1986)
478 U.S. 186
BOWERS, ATTORNEY GENERAL OF GEORGIA v. HARDWICK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
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
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, 394 U.S. 557,
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. [478 U.S. 186,
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.
Michael E. Hobbs, Senior Assistant Attorney General of Georgia, argued the cause for
petitioner. With him on the briefs were Michael J. Bowers, Attorney General, pro se,
Marion O. Gordon, First Assistant Attorney General, and Daryl A. Robinson, Senior
Assistant Attorney General.
Laurence H. Tribe argued the cause for respondent Hardwick. With him on the brief were
Kathleen M. Sullivan and Kathleen L. Wilde. *
[ Footnote * ] Briefs of amici curiae
urging reversal were filed for the Catholic League for Religious and Civil Rights by
Steven Frederick McDowell; for the Rutherford Institute et al. by W. Charles Bundren, Guy
O. Farley, Jr., George M. Weaver, William B. Hollberg, Wendell R. Bird, John W Whitehead,
Thomas O. Kotouc, and Alfred Lindh; and for David Robinson, Jr., pro se. Briefs of amici
curiae urging affirmance were filed for the State of New York et al. by Robert Abrams,
Attorney General of New York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Howard
L. Zwickel, Charles R. Fraser, and Sanford M. Cohen, Assistant Attorneys General, and John
Van de Kamp, Attorney General of California; for the American Jewish Congress by Daniel D.
Levenson, David Cohen, and Frederick Mandel; for the American Psychological Association et
al. by Margaret Farrell Ewing, Donald N. Bersoff, Anne Simon, Nadine Taub, and Herbert
Semmel; for the Association of the Bar of the City of New York by Steven A. Rosen; for the
National Organization for Women by John S. L. Katz; and for the Presbyterian Church (U.S.
A.) et al. by Jeffrey O. Bramlett. Briefs of amici curiae were filed for the Lesbian
Rights Project et al. by Mary C. Dunlap; and for the National Gay Rights Advocates et al.
by Edward P Errante, Leonard Graff, and Jay Kohorn.
JUSTICE WHITE delivered the opinion of the Court.
In August 1982, respondent Hardwick (hereafter respondent) was charged with violating
the Georgia statute criminalizing [478 U.S.
186, 188] sodomy 1 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.
Respondent then brought suit in the Federal District Court, challenging the
constitutionality of the statute insofar as it criminalized consensual sodomy. 2 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). [478 U.S. 186, 189]
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.
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, 3 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. 4 [478
U.S. 186, 190]
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.
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 [478 U.S. 186, 191] 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
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 [478 U.S. 186, 192]
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. 5 In 1868,
when the Fourteenth Amendment was [478 U.S.
186, 193] ratified, all but 5 of the 37 States in the Union had criminal
sodomy laws. 6 In fact, until 1961, 7 all 50 States outlawed sodomy, and today,
24 States and the District of Columbia [478
U.S. 186, 194] 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.
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 [478
U.S. 186, 195] 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 for 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 [478
U.S. 186, 196] 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. 8
Accordingly, the judgment of the Court of Appeals is
[ Footnote 1 ] 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. . . ."
[ Footnote 2 ] 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.
[ Footnote 3 ] 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
[ Footnote 4 ] 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).
[ Footnote 5 ] 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). [478 U.S. 186, 193]
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).
[ Footnote 6 ] 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, 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). [478 U.S. 186,
194] 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
[ Footnote 7 ] 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, Sections 11-2, 11-3 (1983)
(repealed 1984)). See American Law Institute, Model Penal Code 213.2 (Proposed Official
[ Footnote 8 ] Respondent does not
defend the judgment below based on the Ninth Amendment, the Equal Protection Clause, or
the Eighth Amendment.
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
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 [478 U.S. 186, 197] 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 [478 U.S. 186, 198] 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. 1
In this case, however, respondent has not been tried, much less convicted and
sentenced. 2 Moreover, respondent has not
raised the Eighth Amendment issue below. For these reasons this constitutional argument is
not before us.
[ Footnote 1 ] 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
[ Footnote 2 ] 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. [478 U.S. 186, 199]
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS
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
"[i]t 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 [478 U.S. 186, 200] 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).
In its haste to reverse the Court of Appeals and hold that the Constitution does not
"confe[r] 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. 1 I therefore see no basis
for the [478 U.S. 186, 201] 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.
Second, I disagree with the Court's refusal to consider whether 16-6-2 runs afoul of
the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment.
Ante, at 196, n. 8. Respondent's complaint expressly invoked the Ninth Amendment, see App.
6, and he relied heavily before this Court on Griswold v. Connecticut, 381
U.S. 479, 484 (1965), which identifies that Amendment as one of the specific
constitutional provisions giving "life and substance" to our understanding of
privacy. See Brief for Respondent Hardwick 10-12; Tr. of Oral Arg. 33. More importantly,
the procedural posture of the case requires that we affirm the Court of Appeals' judgment
if there is any ground on which respondent may be entitled to relief. This case is before
us on petitioner's motion to dismiss for failure to state a claim, Fed. Rule Civ. Proc.
12(b)(6). See App. 17. It is a well-settled principle of law that "a complaint should
not be dismissed merely because a plaintiff's allegations do not support the particular
legal theory he advances, for the court is under a duty to examine the complaint to
determine if the allegations provide for relief on any possible theory." [478 U.S. 186, 202] Bramlet v.
Wilson, 495 F.2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co., 484 F.2d 767,
773 (CA7 1973); Due v. Tallahassee Theaters, Inc., 333 F.2d 630, 631 (CA5 1964); United
States v. Howell, 318 F.2d 162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal
Practice and Procedure 1357, pp. 601-602 (1969); see also Conley v. Gibson, 355
U.S. 41, 45 -46 (1957). Thus, even if respondent did not advance claims based on the
Eighth or Ninth Amendments, or on the Equal Protection Clause, his complaint should not be
dismissed if any of those provisions could entitle him to relief. I need not reach either
the Eighth Amendment or the Equal Protection Clause issues because I believe that Hardwick
has stated a cognizable claim that 16-6-2 interferes with constitutionally protected
interests in privacy and freedom of intimate association. But neither the Eighth Amendment
nor the Equal Protection Clause is so clearly irrelevant that a claim resting on either
provision should be peremptorily dismissed. 2 The Court's cramped reading of the [478 U.S. 186, 203] issue before it makes
for a short opinion, but it does little to make for a persuasive one.
"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. American College of Obstetricians & Gynecologists, 476
U.S. 747, 772 (1986). In construing the right to privacy, the Court has proceeded
along two somewhat distinct, [478 U.S. 186,
204] albeit complementary, lines. First, it has recognized a privacy
interest with reference to certain decisions that are properly for the individual to make.
E. g., Roe v. Wade, 410
U.S. 113 (1973); Pierce v. Society of Sisters, 268
U.S. 510 (1925). Second, it has recognized a privacy interest with reference to
certain places without regard for the particular activities in which the individuals who
occupy them are engaged. E. g., United States v. Karo, 468
U.S. 705 (1984); Payton v. New York, 445
U.S. 573 (1980); Rios v. United States, 364
U.S. 253 (1960). The case before us implicates both the decisional and the spatial
aspects of the right to privacy.
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 "clos[ing] 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. "[T]he concept of
privacy embodies the 'moral fact that a person belongs to himself and not others nor to
society as a whole.'" Thornburgh v. American College of Obstetricians &
U.S., at 777 , n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil.
& Pub. Affairs 288-289 (1977). And so we protect the decision whether to [478 U.S. 186, 205] marry
precisely because marriage "is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects." Griswold v. Connecticut, 381
U.S., at 486 . We protect the decision whether to have a child because parenthood
alters so dramatically an individual's self-definition, not because of demographic
considerations or the Bible's command to be fruitful and multiply. Cf. Thornburgh v.
American College of Obstetricians & Gynecologists, supra, at 777, n. 6 (STEVENS, J.,
concurring). And we protect the family because it contributes so powerfully to the
happiness of individuals, not because of a preference for stereotypical households. Cf.
Moore v. East Cleveland, 431
U.S., at 500 -506 (plurality opinion). The Court recognized in Roberts, 468
U.S., at 619 , that the "ability independently to define one's identity that is
central to any concept of liberty" cannot truly be exercised in a vacuum; we all
depend on the "emotional enrichment from close ties with others." Ibid.
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
U.S. 438, 453 (1972); Roe v. Wade, 410
U.S., at 153 .
In a variety of circumstances we have recognized that a necessary corollary of giving
individuals freedom to choose [478 U.S. 186,
206] 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." Wisconsin v. Yoder, 406
U.S. 205, 223 -224 (1972). The Court claims that its decision today merely refuses to
recognize a fundamental right to engage in homosexual sodomy; what the Court really has
refused to recognize is the fundamental interest all individuals have in controlling the
nature of their intimate associations with others.
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 indefensible right of personal security, personal
liberty and private property.'" California v. Ciraolo, 476
U.S. 207, 226 (1986) (POWELL, J., dissenting), [478 U.S. 186, 207] quoting Boyd v. United States, 116
U.S. 616, 630 (1886).
The Court's interpretation of the pivotal case of Stanley v. Georgia, 394
U.S. 557 (1969), is entirely unconvincing. Stanley held that Georgia's undoubted power
to punish the public distribution of constitutionally unprotected, obscene material did
not permit the State to punish the private possession of such material. According to the
majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed,
sheds no light on cases not involving printed materials. Ante, at 195. But that is not
what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth
Amendment's special protection for the individual in his home:
"'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
U.S., at 564 -565, quoting Olmstead v. United States, 277
U.S., at 478 (Brandeis, J., dissenting).
The central place that Stanley gives Justice Brandeis' dissent in Olmstead, a case
raising no First Amendment claim, shows that Stanley rested as much on the Court's
understanding of the Fourth Amendment as it did on the First. Indeed, in Paris Adult
Theatre I v. Slaton, 413
U.S. 49 (1973), the Court suggested that reliance on the Fourth [478 U.S. 186, 208] Amendment not only
supported the Court's outcome in Stanley but actually was necessary to it: "If
obscene material unprotected by the First Amendment in itself carried with it a `penumbra'
of constitutionally protected privacy, this Court would not have found it necessary to
decide Stanley on the narrow basis of the 'privacy of the home,' which was hardly more
than a reaffirmation that `a man's home is his castle.'" 413
U.S., at 66 . "The right of the people to be secure in their . . . houses,"
expressly guaranteed by the Fourth Amendment, is perhaps the most "textual" of
the various constitutional provisions that inform our understanding of the right to
privacy, and thus I cannot agree with the Court's statement that "[t]he right pressed
upon us here has no . . . support in the text of the Constitution," ante, at 195.
Indeed, the right of an individual to conduct intimate relationships in the intimacy of
his or her own home seems to me to be the heart of the Constitution's protection of
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 Georgia's infringement on these interests. I believe that neither of the two
general justifications for 16-6-2 that petitioner has advanced warrants dismissing
respondent's challenge for failure to state a claim.
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 pleading, it is not
surprising that the record before us is barren of any evidence to support petitioner's
claim. 3 In light of the state of the
record, I see [478 U.S. 186, 209]
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 Stanley refused to extend its protection. 394
U.S., at 568 , n. 11. None of the behavior so mentioned in Stanley can properly be
viewed as "[v]ictimless," ante, at 195: drugs and weapons are inherently
dangerous, see, e. g., McLaughlin v. United States, 476
U.S. 16 (1986), and for property to be "stolen," someone must have been
wrongfully deprived of it. Nothing in the record before the Court provides any
justification for finding the activity forbidden by 16-6-2 to be physically dangerous,
either to the persons engaged in it or to others. 4 [478 U.S. 186, 210]
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 Theater 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 16-6-2 "for hundreds of
years, if not thousands, have been uniformly condemned as immoral" is a sufficient
reason to permit a State to ban them today. Brief for Petitioner 19; see ante, at 190,
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
security. See, e. g., Roe v. Wade, 410
U.S. 113 (1973); Loving v. Virginia, 388
U.S. 1 (1967); Brown v. Board of Education, 347
U.S. 483 (1954). 5 As Justice
Jackson wrote so eloquently [478 U.S. 186,
211] for the Court in West Virginia Board of Education v. Barnette, 319
U.S. 624, 641 -642 (1943), "we apply the limitations of the Constitution with no
fear that freedom to be intellectually and spiritually diverse or even contrary will
disintegrate the social organization. . . . [F]reedom to differ is not limited to things
that do not matter much. That would be a mere shadow of freedom. The test of its substance
is the right to differ as to things that touch the heart of the existing order." See
also Karst, 89 Yale L. J., at 627. It is precisely because the issue raised by this case
touches the heart of what makes individuals what they are that we should be especially
sensitive to the rights of those whose choices upset the majority.
The assertion that "traditional Judeo-Christian values proscribe" the conduct
involved, Brief for Petitioner 20, cannot provide an adequate justification for 16-6-2.
That certain, but by no means all, religious groups condemn the behavior at issue gives
the State no license to impose their judgments on the entire citizenry. The legitimacy of
secular legislation depends instead on whether the State can advance some justification
for its law beyond its conformity to religious doctrine. See, e. g., McGowan v. Maryland, 366
U.S. 420, 429 -453 (1961); Stone v. Graham, 449
U.S. 39 (1980). Thus, far from buttressing his case, petitioner's invocation of
Leviticus, Romans, St. Thomas Aquinas, and sodomy's heretical status during the Middle
Ages undermines his suggestion that 16-6-2 represents a legitimate use of secular coercive
power. 6 A State can no more punish
private behavior because [478 U.S. 186, 212]
of religious intolerance than it can punish such behavior because of
racial animus. "The Constitution cannot control such prejudices, but neither can it
tolerate them. Private biases may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect." Palmore v. Sidoti, 466
U.S. 429, 433 (1984). No matter how uncomfortable a certain group may make the
majority of this Court, we have held that "[m]ere public intolerance or animosity
cannot constitutionally justify the deprivation of a person's physical liberty."
O'Connor v. Donaldson, 422
U.S. 563, 575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432 (1985); United States Dept. of Agriculture v. Moreno, 413
U.S. 528, 534 (1973).
Nor can 16-6-2 be justified as a "morally neutral" exercise of Georgia's
power to "protect the public environment," Paris Adult Theatre I, 413
U.S., at 68 -69. Certainly, some private behavior can affect the fabric of society as
a whole. Reasonable people may differ about whether particular sexual acts are moral or
immoral, but "we have ample evidence for believing that people will not abandon
morality, will not think any better of murder, cruelty and dishonesty, merely because some
private sexual practice which they abominate is not punished by the law." H. L. A.
Hart, Immorality and Treason, reprinted in The Law as Literature 220, 225 (L. Blom-Cooper
ed. 1961). Petitioner and the Court fail to see the difference between laws that protect
public sensibilities and those that enforce private morality. Statutes banning [478 U.S. 186, 213] public
sexual activity are entirely consistent with protecting the individual's liberty interest
in decisions concerning sexual relations: the same recognition that those decisions are
intensely private which justifies protecting them from governmental interference can
justify protecting individuals from unwilling exposure to the sexual activities of others.
But the mere fact that intimate behavior may be punished when it takes place in public
cannot dictate how States can regulate intimate behavior that occurs in intimate places.
See Paris Adult Theatre I, 413
U.S., at 66 , n. 13 ("marital intercourse on a street corner or a theater
stage" can be forbidden despite the constitutional protection identified in Griswold
v. Connecticut, 381
U.S. 479 (1965)). 7
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.
It took but three years for the Court to see the error in its analysis in Minersville
School District v. Gobitis, 310 U.S. [478
U.S. 186, 214] 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.
[ Footnote 1 ] 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 [478 U.S. 186, 201] 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).
[ Footnote 2 ] In Robinson v.
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."
Id., at 667. In Powell v. Texas, 392
U.S. 514 (1968), where the Court refused to extend Robinson to punishment of public
drunkenness by a chronic alcoholic, one of the factors relied on by JUSTICE MARSHALL, in
writing the plurality opinion, was that Texas had not "attempted to regulate
appellant's behavior in the privacy of his own home." Id., at 532. JUSTICE WHITE
wrote separately: "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
U.S., at 666 . By precluding criminal conviction for such a `status' the Court was
dealing with a condition brought about by acts remote in time from the application of the
criminal sanctions contemplated, a condition which was relatively permanent in duration,
and a condition of great magnitude and significance in terms of human behavior and values
. . . . If it were necessary to distinguish between 'acts' and 'conditions' for purposes
of the Eighth Amendment, I would adhere to the concept of `condition' implicit in the
opinion in Robinson . . . . The proper subject of inquiry is whether volitional acts
brought about the `condition' and whether those acts are [478 U.S. 186, 203] sufficiently proximate to the 'condition'
for it to be permissible to impose penal sanctions on the `condition.'" Id., at
550-551, n. 2. 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
U.S. 678, 711 (1977) (POWELL, J., concurring in part and concurring in judgment), is
rendered empty indeed if he or she is given no real choice but a life without any physical
intimacy. 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
U.S. 356, 373 -374 (1886). The legislature having decided that the sex of the
participants is irrelevant to the legality of the acts, I do not see why the State can
defend 16-6-2 on the ground that individuals singled out for prosecution are of the same
sex as their partners. Thus, under the circumstances of this case, a claim under the Equal
Protection Clause may well be available without having to reach the more controversial
question whether homosexuals are a suspect class. See, e. g., Rowland v. Mad River Local
School District, 470
U.S. 1009 (1985) (BRENNAN, J., dissenting from denial of certiorari); Note, The
Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98
Harv. L. Rev. 1285 (1985).
[ Footnote 3 ] 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 [478
U.S. 186, 209] 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.
[ Footnote 4 ] 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 [478 U.S. 186, 210] is warranted. See Tr.
of Oral Arg. 21-22. Notably, the Court makes no effort to explain why it has chosen to
group private, consensual homosexual activity with adultery and incest rather than with
private, consensual heterosexual activity by unmarried persons or, indeed, with oral or
anal sex within marriage.
[ Footnote 5 ] The parallel
between Loving and this case is almost uncanny. There, too, the State relied on a
religious justification for its law. Compare 388
U.S., at 3 (quoting trial court's statement that "Almighty God created the races
white, black, yellow, malay and red, and he placed them on separate continents. . . . The
fact that he separated the races shows that he did not intend for the races to mix"),
with Brief for Petitioner 20-21 (relying on the Old and New Testaments and the writings of
St. Thomas Aquinas to show that "traditional Judeo-Christian values proscribe such
conduct"). There, too, defenders of the challenged statute relied heavily on the fact
that when the Fourteenth Amendment was ratified, most of the States had similar
prohibitions. Compare Brief for Appellee in Loving v. Virginia, O. T. 1966, No. 395, pp.
28-29, with ante, at 192-194, and n. 6. There, too, at the time the case came before the
Court, many of the States still had criminal statutes concerning the conduct at issue.
U.S., at 6 , n. 5 (noting that 16 States still outlawed interracial marriage), with
ante, at 193-194 (noting that 24 States and the District of Columbia have sodomy [478 U.S. 186, 211] statutes).
Yet the Court held, not only that the invidious racism of Virginia's law violated the
Equal Protection Clause, see 388
U.S., at 7 -12, but also that the law deprived the Lovings of due process by denying
them the "freedom of choice to marry" that had "long been recognized as one
of the vital personal rights essential to the orderly pursuit of happiness by free
men." Id., at 12.
[ Footnote 6 ] 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 England. 25 Hen. VIII, ch. 6. Until that
time, the offense [478 U.S. 186, 212]
was, in Sir James Stephen's words, "merely ecclesiastical." 2J. Stephen,
A History of the Criminal Law of England 429-430 (1883). Pollock and Maitland similarly
observed that "[t]he crime against nature . . . was so closely connected with heresy
that the vulgar had but one name for both." 2 F. Pollock & F. Maitland, The
History of English Law 554 (1895). The transfer of jurisdiction over prosecutions for
sodomy to the secular courts seems primarily due to the alteration of ecclesiastical
jurisdiction attendant on England's break with the Roman Catholic Church, rather than to
any new understanding of the sovereign's interest in preventing or punishing the behavior
involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797).
[ Footnote 7 ] 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 repugnance, 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 16-6-2 seems no less intrusive, or repugnant. Cf. Winston v. Lee, 470
U.S. 753 (1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (CA7 1983).
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Like the statute that is challenged in this case, 1 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. 2 Sodomy was condemned as an odious and sinful type
of behavior during the formative period of the common law. 3 [478 U.S. 186, 215] That condemnation was equally damning for
heterosexual and homosexual sodomy. 4 Moreover,
it provided no special exemption for married couples. 5 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."
The history of the Georgia statute before us clearly reveals this traditional
prohibition of heterosexual, as well as homosexual, sodomy. 6 Indeed, at one point in the 20th century, Georgia's
law was construed to permit certain sexual conduct between homosexual women even though
such conduct was prohibited between heterosexuals. 7 The history of the statutes cited by the majority
as proof for the proposition that sodomy is not constitutionally protected, ante, at
192-194, [478 U.S. 186, 216] and
nn. 5 and 6, similarly reveals a prohibition on heterosexual, as well as homosexual,
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.
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. 9 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). [478 U.S. 186, 217]
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. Porter Memorial Hospital, 523 F.2d 716, 719-720
(CA7 1975) (footnotes omitted), cert. denied, 425
U.S. 916 (1976).
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 [478 U.S. 186, 218]
State - to decide. 10 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.
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 Georgia may not
totally prohibit the conduct proscribed by 16-6-2 of the Georgia Criminal Code.
If the Georgia statute cannot be enforced as it is written - if the conduct it seeks to
prohibit is a protected form of liberty for the vast majority of Georgia's citizens - the
State must assume the burden of justifying a selective application of its law. Either the
persons to whom Georgia seeks to apply its statute do not have the same interest in
"liberty" that others have, or there must be a reason why the State may be
permitted to apply a generally applicable law to certain persons that it does not apply to
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 [478 U.S. 186, 219] 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 Georgia statute "the presumed belief of a majority of the
electorate in Georgia that homosexual sodomy is immoral and unacceptable." Ante, at
196. But the Georgia electorate has expressed no such belief - instead, its
representatives enacted a law that presumably reflects the belief that all sodomy is
immoral and unacceptable. Unless the Court is prepared to conclude that such a law is
constitutional, it may not rely on the work product of the Georgia Legislature to support
its holding. For the Georgia statute does not single out homosexuals as a separate class
meriting special disfavored treatment.
Nor, indeed, does not Georgia prosecutor even believe that all homosexuals who violate
this statute should be punished. This conclusion is evident from the fact that the
respondent in this very case has formally acknowledged in his complaint and in court that
he has engaged, and intends to continue to engage, in the prohibited conduct, yet the
State has elected not to process criminal charges against him. As JUSTICE POWELL points
out, moreover, Georgia's prohibition on private, consensual sodomy has not been enforced
for decades. 11 The record of
nonenforcement, in this case and in the last several decades, belies the Attorney
General's representations [478 U.S. 186,
220] about the importance of the State's selective application of its
generally applicable law. 12
Both the Georgia statute and the Georgia prosecutor thus completely fail to provide the
Court with any support for the conclusion that homosexual sodomy, simpliciter, is
considered unacceptable conduct in that State, and that the burden of justifying a
selective application of the generally applicable law has been met.
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. 13
I respectfully dissent.
[ Footnote 1 ] See Ga. Code Ann.
16-6-2(a) (1984) ("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
[ Footnote 2 ] 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
[ Footnote 3 ] 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 [478 U.S. 186, 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").
[ Footnote 4 ] 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").
[ Footnote 5 ] 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").
[ Footnote 6 ] The predecessor of
the current Georgia statute provided: "Sodomy is the carnal knowledge and connection
against the order of nature, by man with man, or in the same unnatural manner with
woman." Ga. Code, Tit. 1, Pt. 4, 4251 (1861). This prohibition of heterosexual sodomy
was not purely hortatory. See, e. g., Comer v. State, 21 Ga. App. 306, 94 S. E. 314 (1917)
(affirming prosecution for consensual heterosexual sodomy).
[ Footnote 7 ] See Thompson v.
Aldredge, 187 Ga. 467, 200 S. E. 799 (1939).
[ Footnote 8 ] 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
[ Footnote 9 ] See Loving v. Virginia,
U.S. 1 (1967). Interestingly, miscegenation was once treated as a crime similar to
sodomy. See Hawley & McGregor, The Criminal Law, at 287 (discussing crime of sodomy);
id., at 288 (discussing crime of miscegenation).
[ Footnote 10 ] Indeed, the Georgia
Attorney General concedes that Georgia's statute would be unconstitutional if applied to a
married couple. See Tr. of Oral Arg. 8 (stating that application of the statute to a
married couple "would be unconstitutional" because of the "right of marital
privacy as identified by the Court in Griswold"). Significantly, Georgia passed the
current statute three years after the Court's decision in Griswold.
[ Footnote 11 ] 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").
[ Footnote 12 ] It is, of course,
possible to argue that a statute has a purely symbolic role. Cf. Carey v. Population
Services International, 431
U.S. 678, 715 , n. 3 (1977) (STEVENS, J., concurring in part and concurring in
judgment) ("The fact that the State admittedly has never brought a prosecution under
the statute . . . is consistent with appellants' position that the purpose of the statute
is merely symbolic"). Since the Georgia Attorney General does not even defend the
statute as written, however, see n. 10, supra, the State cannot possibly rest on the
notion that the statute may be defended for its symbolic message.
[ Footnote 13 ] 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. United States, 430
U.S. 188, 198 (1977) (STEVENS, J., concurring in part and dissenting in part). [478 U.S. 186, 221]
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