Bowers v. Hardwick

Following is the case brief for Bowers v. Hardwick, 478 U.S. 186 (1986).

Case Summary of Bowers v. Hardwick:

  • Respondent Hardwick was charged under a Georgia anti-sodomy law for engaging in homosexual sodomy in his own home.
  • Although he was not prosecuted for the violation, Hardwick sought a judgment in Federal District Court declaring that Georgia’s law was unconstitutional.
  • The Eleventh Circuit Court of Appeals agreed that the law was in violation of the Ninth and Fourteenth Amendments.
  • The U.S. Supreme Court reversed.  The Court concluded that there is no fundamental right to homosexual sodomy.

Bowers v. Hardwick Case Brief

Statement of the Facts:

In 1982, respondent Hardwick was charged with violating Georgia’s anti-sodomy law after a law enforcement officer saw him committing sodomy in his home with another man.  The local prosecutor declined to prosecute the case.  Hardwick, however, was concerned that as a gay man he would always be under the threat of prosecution from the law.  Accordingly, Hardwick sued in Federal District Court, asking that Georgia’s anti-sodomy law be declared unconstitutional.

Procedural History:

The District Court dismissed Hardwick’s declaratory judgment action.  The Eleventh Circuit Court of Appeals reversed, holding that the Georgia law violated the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.  The State of Georgia appealed.  Because other Courts of Appeal were in conflict with the Eleventh Circuit’s holding, the U.S. Supreme Court granted certiorari.

Issue and Holding:

Is there a fundamental constitutional right for homosexuals to engage in sodomy?  No.


The judgment of the Eleventh Circuit Court of Appeals is reversed.

Rule of Law or Legal Principle Applied:

There is no fundamental right to engage in homosexual sodomy.


The Court has sought to identify those fundamental rights that require heightened judicial protection under the Constitution.  Homosexual sodomy is not among those fundamental rights. That activity is neither “implicit in the concept of ordered liberty,” nor “deeply rooted in this Nation’s history and tradition.”

In fact, until 1961, all 50 states outlawed sodomy, thereby demonstrating that such a right is not deeply rooted in the culture of this Nation.  The privacy rights recognized by this Court in the past, involving family relationships or procreation, have no resemblance to the right asserted in the present case.  The fact that the act in question took place in a private home does not change that conclusion.

Further, the Court should resist recognizing new fundamental rights under the Due Process clause. This is to avoid the Court losing legitimacy by straying too far from the concepts rooted in the Constitution.  Here, the right asserted does not compel the Court to overcome that resistance.

Concurring and Dissenting Opinions:

Concurring Opinion (Burger):

Throughout history, society has condemned homosexual activity.  Thus, finding homosexual sodomy to be a fundamental right tosses aside centuries of moral teaching.

Concurring Opinion (Powell):

Justice Powell agreed that there is no fundamental right as asserted by Hardwick.  However, the Georgia anti-sodomy law may be vulnerable based on the Eighth Amendment’s prohibition of cruel and unusual punishment.  Sodomy that is consensual could result in 20 years in prison under the Georgia law.

Dissenting Opinion (Blackmun):

In a strongly worded dissent, Justice Blackmun attacked the Court’s opinion by first noting that it misstates the issue in the case.  The case is not about whether homosexual sodomy is a fundamental right.  Rather, the case is about whether citizens of the U.S. have the right to engage in the most intimate of activities, in their own home, without the interference of the Government.  Justice Blackmun finds that nothing could be more fundamental to the letter and spirit of the Constitution.  Simply stated, the case is about the most fundamental of rights — the right to be left alone.

Noting the majority’s “almost obsessive” focus on homosexual conduct, Justice Blackmun points out that Georgia’s law prohibits both homosexual and heterosexual sodomy.  Most importantly, sexual intimacy is a vital component to human existence.  Therefore, it should be accorded the privacy protection the Court has recognized in other Due Process cases.

Dissenting Opinion (Stevens):

The Georgia law amounts to selective enforcement solely against homosexuals.  Other Court opinions make Georgia’s law invalid with regard to heterosexual conduct.  Thus, Georgia should make a showing as to why discriminating against homosexuals is consistent with the Constitution.


This case was a severe setback for the gay rights movement when it was decided in 1986. However, the setback was not permanent.  In 2003, the Court in Lawrence v. Texas, 539 U.S. 558 (2003), expressly overruled the Bowers decision, stating “Bowers was not correct when it was decided, and it is not correct today. . . . Bowers v. Hardwick should be and now is overruled.”

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