Master U.S. Supreme Court held there is no fundamental due process right to engage in consensual homosexual sodomy, upholding Georgia’s sodomy statute (later overruled by Lawrence v. Texas). with this comprehensive case brief.
Bowers v. Hardwick is a landmark pre-Lawrence substantive due process case in which the U.S. Supreme Court rejected a constitutional right to engage in consensual homosexual sodomy. Decided in 1986, at the height of the culture wars and AIDS crisis, the decision crystallized a narrow approach to identifying fundamental rights under the Fourteenth Amendment: only those rights deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty would receive substantive due process protection. By defining the asserted liberty interest narrowly as a claimed right of homosexuals to engage in sodomy, the Court concluded that such conduct had long been criminalized and therefore was not constitutionally protected.
For nearly two decades, Bowers authorized states to enforce sodomy statutes against consenting adults in private and was routinely cited to reject claims seeking constitutional protection for same-sex intimacy. The case is significant not only for its result but also for its methodology—how courts frame the asserted right, what counts as history and tradition, and the role of morality as a legitimate basis for criminal legislation. In 2003, Lawrence v. Texas expressly overruled Bowers, but law students still study Bowers to understand the evolution of substantive due process, the power of issue framing, and the interplay between liberty and equality in constitutional law.
478 U.S. 186 (1986)
Michael Hardwick was cited for public drinking in Georgia and failed to appear in court. A warrant issued for his failure to appear. When a police officer went to Hardwick’s home to serve the warrant, Hardwick’s roommate let the officer inside and directed him to Hardwick’s bedroom, where the officer observed Hardwick engaged in consensual oral sex with another adult male. The officer arrested both men under Georgia’s sodomy statute, Ga. Code Ann. § 16-6-2, which criminalized oral and anal sex regardless of the sex of the participants and carried potential penalties of one to twenty years’ imprisonment. The local prosecutor later declined to pursue the sodomy charge, but Hardwick filed a federal civil action seeking declaratory and injunctive relief against the state attorney general (Bowers) and the county sheriff, arguing the statute was unconstitutional as applied to private, consensual adult conduct in the home. The district court dismissed the complaint for failure to state a claim. The Eleventh Circuit reversed, holding that the statute violated Hardwick’s fundamental right to privacy. The U.S. Supreme Court granted certiorari.
Does the Due Process Clause of the Fourteenth Amendment confer a fundamental right to engage in consensual homosexual sodomy such that Georgia’s sodomy statute is unconstitutional as applied to private adult conduct in the home?
Substantive due process protects only those fundamental rights and liberties that are deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty. Where no fundamental right is implicated, legislation is upheld if it is rationally related to a legitimate state interest, and moral disapproval can constitute such an interest. Consensual homosexual sodomy is not a fundamental right protected by the Due Process Clause.
No. The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy, and Georgia’s sodomy statute, as applied to consensual homosexual conduct in the home, does not violate the Due Process Clause. The Eleventh Circuit’s judgment was reversed.
Majority (Justice White): The Court framed the question narrowly as whether the Constitution protects a right of homosexuals to engage in sodomy. Fundamental rights under substantive due process are limited to those rooted in history and tradition and implicit in ordered liberty. Because homosexual sodomy has historically been criminalized at common law and by a majority of states, it cannot be considered a fundamental right. The Court distinguished prior privacy cases—Griswold (marital contraception), Eisenstadt (contraception for unmarried persons), Carey (access to contraceptives), Roe (abortion), and Stanley (possession of obscene materials at home)—as concerning procreation, family, marriage, or decisions of a fundamentally different character than private sexual conduct per se. Absent a fundamental right, the statute need only satisfy rational basis review, which it did because the state may legislate on the basis of moral judgments about sexual conduct. Chief Justice Burger, concurring: Emphasized the longstanding condemnation of homosexual sodomy in Western civilization and American history, asserting that this consistent tradition reinforced the conclusion that no fundamental right was at stake. Justice Powell, concurring in the judgment: Agreed that no fundamental right was implicated and thus rational basis review applied, but suggested the penalties authorized by Georgia (up to 20 years) might raise Eighth Amendment proportionality concerns in a different case. He stressed that the case did not require invalidating the statute on due process grounds. Dissent (Justice Blackmun, joined by Brennan, Marshall, and Stevens): Argued that the majority mischaracterized the liberty interest. The correct question was whether the Constitution protects the right of individuals to be free from unwarranted government intrusion into intimate, personal decisions regarding sexual intimacy—the “right to be let alone.” On that broader understanding, the case fit within the privacy/liberty line of Griswold, Eisenstadt, and related precedents protecting intimate decisions. The dissent contended that mere moral disapproval is insufficient to overcome a fundamental liberty interest. Justice Stevens, dissenting separately (joined by Brennan and Marshall): Contended that Georgia’s statute could not be applied consistently with Griswold to married couples engaging in the same acts; therefore, the state lacked a rational basis for applying the law to unmarried persons or selectively to homosexuals. He criticized the majority’s narrow framing and reliance on historical moral condemnation.
Bowers entrenched a restrictive approach to substantive due process and validated the use of morality as a rational basis for criminal laws regulating intimate conduct. For nearly 17 years, it provided constitutional cover for state sodomy laws and was invoked to deny broader constitutional protection for same-sex relationships. The case is a staple in constitutional law courses because it illustrates how the framing of the asserted right can determine the outcome, how courts use history and tradition to limit liberty claims, and how doctrinal developments can later displace precedent. In Lawrence v. Texas (2003), the Supreme Court expressly overruled Bowers, recognizing that adults have a protected liberty interest in private, consensual sexual intimacy and rejecting moral disapproval as sufficient justification for criminalization.
No. Georgia’s statute criminalized oral and anal sex regardless of the sex of the participants; it was facially applicable to heterosexual and homosexual conduct alike. In Bowers, however, the challenge was presented as applied to consensual homosexual activity in a private home.
Rational basis review. The Court held that consensual homosexual sodomy is not a fundamental right under the Due Process Clause. Without a fundamental right, the statute needed only a rational relation to a legitimate state interest, which the Court found satisfied by the state’s moral judgments about sexual conduct.
No. The Court decided the case on substantive due process grounds. Because the statute applied on its face to both heterosexual and homosexual conduct, an equal protection claim was not squarely presented. Later cases—most notably Romer v. Evans (1996) and Lawrence v. Texas (2003)—addressed equality and liberty concerns surrounding laws targeting gay and lesbian people.
No. Any Fourth Amendment issues were not before the Supreme Court in Bowers. The criminal charge was not pursued, and the federal case proceeded as a civil, as-applied constitutional challenge to the sodomy statute. The Court assumed the posture presented and addressed only the due process claim.
Lawrence reframed the liberty interest as adults’ right to engage in private, consensual intimate conduct free from government intrusion, rejected the majority’s narrow characterization in Bowers, and held that moral disapproval alone does not justify criminalizing such conduct. It expressly overruled Bowers and invalidated state sodomy laws under the Due Process Clause.
Bowers v. Hardwick stands as a powerful example of how doctrinal tests and the framing of constitutional questions shape outcomes in substantive due process cases. By focusing narrowly on “homosexual sodomy” and relying on historical criminalization and moral disapproval, the Court found no fundamental right and sustained Georgia’s statute under rational basis review.
Although later repudiated by Lawrence v. Texas, Bowers remains pedagogically important. It highlights the tension between tradition and evolving conceptions of liberty, illustrates the role of courts in defining the scope of constitutional privacy, and underscores how subsequent jurisprudence can correct or abandon earlier methodologies and results.