# Bowers v. Hardwick

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

URL: https://www.frixlaw.com/law-library/cases/9430655

## 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 Powell
- **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/9430655

## 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

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 *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.
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).
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9430655. Public record. Not legal advice.