A Personal Analysis
Facts of the Case
Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute’s constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia’s statute was unconstitutional. Georgia’s Attorney General at the time, Michael J. Bowers, appealed to the Supreme Court.
Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?
“It is my opinion that the Supreme Court’s decision in the case of Bowers v Hardwick (1986) failed [miserably] to achieve justice. I wonder if others felt this too.” I really was amazed when I read the Supreme Court’s 5-4 decision [written by Justice Byron White] which ruled that “the right for gays to engage in sodomy was not protected by the Constitution, that the Georgia law was legal, and that the charges against Hardwick would stand.”
In further review of this case, the Court first argued that the fundamental “right to privacy,” as protected by the Constitution’s Due Process Clause against the states, does not confer “the right upon homosexuals to engage in sodomy.” Yet, while the “right to privacy” protects intimate aspects of marriage, procreation, contraception, family relationships, and child rearing from state interference, it does not protect gay sodomy because “no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” The Court in this case also ruled that “the right to engage in homosexual sodomy” was “not” in itself a “fundamental right” protected by the Due Process Clause. They argued that the clause protects the states interference only in activities that constitute “fundamental rights,” [in other words] activities that are “implicit in the concept of ordered liberty.” The Court also stated that it “could find no law in the history and traditions of American society,” construing “homosexual sodomy” as a fundamental right deserving constitutional protection, and further, that sodomy had been banned by the original 13 colonies and was outlawed in all 50 states until 1961. Further, at the time that Bowers was written in 1986, sodomy was illegal in nearly half of all the states!
Bowers v Hardwick was a serious and hard blow to the gay community. This legal set-back though did not last too long, as in 2003 in the case Lawrence v Texas, the Court declared a Texas anti-sodomy statute “unconstitutional,” in ruling that homosexual sodomy “is” part of the fundamental right of adults to engage in private sexual activity.
After previous rulings in Griswold v Connecticut (1965) and Roe v Wade (1973), which held a person’s fundamental right to privacy is protected by the constitution; “I feel strongly that the decision/ruling in Bowers v Hardwick (1986), was a huge set-back affecting and this ruling truly failed to achieve justice for not only gays, but for all citizens. I can only wonder if it had been looked at in a different context, would the outcome be different.”