# Bowers v. Hardwick

> Supreme Court of the United States · September 11, 1986 · 478 U.S. 186

URL: https://www.frixlaw.com/law-library/cases/9430654

## Case

- **Full name:** BOWERS, ATTORNEY GENERAL OF GEORGIA v. HARDWICK Et Al.
- **Court:** Supreme Court of the United States
- **Decided:** September 11, 1986
- **Citations:** 478 U.S. 186; 106 S. Ct. 2841; 92 L. Ed. 2d 140; 1986 U.S. LEXIS 123
- **Precedential status:** Published
- **Opinion:** Concurrence by Burger
- **Judges:** White, Burger, Powell, Rehnquist, O'Connor, Blackmun, Brennan, Marshall, Stevens
- **Cited by:** 757 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
- Negative treatments: 3
- Distinguished by: 2
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9430654

## How later opinions describe it (automated extraction)

- concluding that sexual orientation discrimination is subject to heightened scrutiny, despite case law to contrary, because those cases “rely so heavily on Bowers ”
- Explaining with regard to the First Amendment privacy, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.”
- stating that “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”

## Opinion text

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 *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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9430654. Public record. Not legal advice.