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Bowers v. Hardwick
[478 U.S. 186]
Burger Court,  Decided 5-4,  6/30/1986
Read the actual decision


Chief Justice Warren BurgerBowers was the first Supreme Court case to test whether the relatively newly discovered right of privacy uncovered in Griswold extended to consensual homosexual acts committed in the privacy of one's home.

At issue was Georgia's statute outlawing sodomy, and one Hardwick, a gay bartender caught in the act in his own bedroom by a police officer there to serve a warrant in an unrelated case. Although the state declined to prosecute, they refused to drop the charges, and Hardwick appealed to the Supreme Court, claiming that his right to privacy had been invaded.

The Court disagreed. In his majority opinion, Justice Byron White reiterated that earlier decisions on sexual privacy were limited to heterosexual couples engaged in matters of "family, marriage or procreation", and to assume that constitutional protection is to be applied to any consensual sexual act regardless of contrary state law is "unsupportable". Refuting plaintiff's claims, he further argued that to assume homosexual acts are a basic right "'deeply rooted in this nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."

The dissent in this case, led by Justice Blackmun, felt, among other things, that state statutes assigning long prison terms -- Georgia's carried up to twenty years -- for private acts of sodomy posed serious risks of violating the Eighth Amendment, that they constituted excessive punishment. Justice Powell was originally attracted to this idea, and would have constituted a majority in favor of overturning, but changed his vote in the end. He felt that, since Hardwick had not been prosecuted, the Eighth could not be applied to this case, and he did not want to overturn based upon the privacy issue.

In his written dissent, Justice Blackmun was upset with the majority because they would not consider the case on the basis of the Eighth, as well as the Ninth and Fourteenth Amendments. In trying to broaden the Court's view of the issues, Justice Blackmun made a pregnant point -- that the case was not so much about any fundamental right to engage in homosexual activity as it was about the "most comprehensive of rights and the right most valued by civilized men the right to be let alone".

Bowers, much like Griswold and Stanley (a case dealing with private reading of pornography) before it, attempts to deal with the thorny interplay of privacy and the right to "be let alone" in a free society, and the need to maintain societal decency on the other. One is inherently an important individual right, while the other necessarily reflects the impact an individual's act may have on the moral sustenance or decay of the society which he shares with the rest of us.


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Other decisions pertaining to Gay Rights:

Boy Scouts of America v. Dale    [530 U.S. 640 (2000)]  Rehnquist Court

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