PSC
314: Political theory and Constitutional Law.
Supreme Court Opinions:
GIDEON v. WAINWRIGHT,
372 U.S. 335 (1963)
Compiled (thanks) by Dr. Jeremy
Lewis | Revised 11 Feb.
2003.
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, 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, 187]
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.
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, 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.
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 [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 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 [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
Reversed.
Footnotes
[ 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 (1984).
[ 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
(1839).
[ 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, 11-2, 11-3 (1983) (repealed 1984)). See American Law
Institute, Model
Penal Code 213.2 (Proposed
Official Draft 1962).
[ 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 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 [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
maximum).
[ 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
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 "[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).
I
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.
II
"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.
A
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 & Gynecologists,
476 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.
B
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 privacy.
III
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, 192-194,
196.
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.
IV
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. California, 370 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 International,
431 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.
Compare 388 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,
sodomy. 8
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.
I
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.
II
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 others.
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.
III
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 another").
[ 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 Court.
[ 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 sodomy.
[ Footnote 9 ] See Loving
v. Virginia, 388 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]