In
August 1982, a police officer with a warrant for Michael Hardwick's arrest
(on a public drinking charge that Hardwick had already resolved) arrived
at his house in Atlanta, Georgia.Another
resident of the house allowed the officer to enter to look for Hardwick.Walking
down the hallway, he saw, through a partially open door, Hardwick and a
male companion engaged in a sexual act, and promptly arrested Hardwick
for criminal sodomy.Georgia decided
not to prosecute, but Hardwick would not be free of possible indictment
until the statute of limitations ran out four years later.At
the urging of the American Civil Liberties Union, Hardwick brought suit
in federal district court against Georgia Attorney General Michael Bowers
(and others).At the time of the
case, perhaps half the states had repealed criminal sodomy laws, but most
southern states had not.The Georgia
statute dated back to 1816, but had been amended as late as 1968 (to make
it clear that it covered hetrosexually as well as homosexual acts.)Hardwick
lost in the federal district court (based on the 1974 Virginia appellate
court decision in Doe v. Commonwealth's Attorney), but won an appellate
court victory. (The decision was written by Frank Johnson, the federal
judge who had enforced desegregation decisions in Alabama during the 1960s).Georgia
appealed to the U.S. Supreme Court[Note:
edited and footnotes omitted.]
Justice
White:
….This
case does not require a judgment on whether laws against sodomy between
consenting adults in general, or between homosexuals in particular, are
wise or desirable. It raises no question about the right or propriety of
state legislative decisions to repeal their laws that criminalize homosexual
sodomy, or of state-court decisions invalidating those laws on state constitutional
grounds. The issue presented is whether the Federal Constitution confers
a fundamental right upon homosexuals to engage in sodomy and hence invalidates
the laws of the many States that still make such conduct illegal and have
done so for a very long time. The case also calls for some judgment about
the limits of the Court's role in carrying out its constitutional mandate.
We
first register our disagreement with the Court of Appeals and with respondent
that the Court's prior cases have construed the Constitution to confer
a right of privacy that extends to homosexual sodomy and for all intents
and purposes have decided this case. The reach of this line of cases was
sketched in Carey v. Population Services International, 431 U.S. 678, 685
(1977). Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v.
Nebraska, 262 U.S. 390 (1923), were described as dealing with child rearing
and education; Prince v. Massachusetts, 321 U.S. 158 (1944), with family
relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942),
with procreation; Loving v. Virginia, 388 U.S. 1 (1967), with marriage;
Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception;
and Roe v. Wade, 410 U.S. 113 (1973), with abortion. The latter three cases
were interpreted as construing the Due Process Clause of the Fourteenth
Amendment to confer a fundamental individual right to decide whether or
not to beget or bear a child. Carey v. Population Services International,
supra, at 688-689.
Accepting
the decisions in these cases and the above description of them, we think
it evident that none of the rights announced in those cases bears any resemblance
to the [478 U.S. 186, 191]claimed
constitutional right of homosexuals to engage in acts of sodomy that is
asserted in this case. No connection between family, marriage, or procreation
on the one hand and homosexual activity on the other has been demonstrated,
either by the Court of Appeals or by respondent. Moreover, any claim that
these cases nevertheless stand for the proposition that any kind of private
sexual conduct between consenting adults is constitutionally insulated
from state proscription is unsupportable. Indeed, the Court's opinion in
Carey twice asserted that the privacy right,
which
the Griswold line of cases found to be one of the protections provided
by the Due Process Clause, did not reach so far. 431 U.S., at 688 , n.
5, 694, n. 17.
Precedent
aside, however, respondent would have us announce, as the Court of Appeals
did, a fundamental right to engage in homosexual sodomy. This we are quite
unwilling to do. It is true that despite the language of the Due Process
Clauses of the Fifth and Fourteenth Amendments, which appears to focus
only on the processes by which life, liberty, or property is taken, the
cases are legion in which those Clauses have been interpreted to have substantive
content, subsuming rights that to a great extent are immune from federal
or state regulation or proscription. Among such cases are those recognizing
rights that have little or no textual support in the constitutional language.
Meyer, Prince, and Pierce fall in this category, as do the privacy cases
from
Griswold
to Carey.
Striving
to assure itself and the public that announcing rights not readily identifiable
in the Constitution's text involves much more than the imposition of the
Justices' own choice of values on the States and the Federal Government,
the Court has sought to identify the nature of the rights qualifying for
heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319,
325 , 326 (1937), it was said that this category includes those fundamental
liberties that are "implicit in the concept of ordered liberty," such that
"neither [478 U.S. 186, 192]liberty
nor justice would exist if [they] were sacrificed." A different description
of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S.
494, 503 (1977) (opinion of POWELL, J.), where they are
characterized
as those liberties that are "deeply rooted in this Nation's history and
tradition." Id., at 503 (POWELL, J.). See also Griswold v. Connecticut,
381 U.S., at 506 .
It
is obvious to us that neither of these formulations would extend a fundamental
right to homosexuals to engage in acts of consensual sodomy. Proscriptions
against that conduct have ancient roots. See generally Survey on the Constitutional
Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L.
Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was
forbidden by the laws of the original 13 States when they ratified the
Bill of Rights. (5)In 1868, when
the Fourteenth Amendment was [478 U.S. 186, 193]ratified,
all but 5 of the 37 States in the Union had criminal sodomy laws. (6) In
fact, until 1961, 7 all 50 States outlawed sodomy, and today, 24 States
and the District of Columbia [478 U.S. 186, 194]continue
to provide criminal penalties for sodomy performed in private and between
consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against
this background, to claim that a right to engage in such conduct is "deeply
rooted in this Nation's history and tradition" or "implicit in the concept
of ordered liberty" is, at best, facetious.
Nor
are we inclined to take a more expansive view of our authority to discover
new fundamental rights imbedded in the Due Process Clause. The Court is
most vulnerable and comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the language
or design of the Constitution. That this is so was painfully demonstrated
by the face-off between the Executive and the Court in the 1930's, which
resulted in the repudiation [478 U.S. 186, 195]of
much of the substantive gloss that the Court had placed on the Due Process
Clauses of the Fifth and Fourteenth Amendments. 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.
Otherwise, the Judiciary necessarily takes to itself further authority
to govern the country without express constitutional authority. The claimed
right pressed on us today falls for short of overcoming this resistance.
Respondent,
however, asserts that the result should be different where the homosexual
conduct occurs in the privacy of the home. He relies on Stanley v. Georgia,
394 U.S. 557 (1969), where the Court held that the First Amendment prevents
conviction for possessing and reading obscene material in the privacy of
one's home: "If the First Amendment means anything, it means that a State
has no business telling a man, sitting alone in his house, what books he
may read or what films he may watch." Id., at 565.
Stanley
did protect conduct that would not have been protected outside the home,
and it partially prevented the enforcement of state obscenity laws; but
the decision was firmly grounded in the First Amendment. The right pressed
upon us here has no similar support in the text of the Constitution, and
it does not qualify for recognition under the prevailing principles for
construing the Fourteenth Amendment. Its limits are also difficult to discern.
Plainly enough, otherwise illegal conduct is not always immunized whenever
it occurs in the home. Victimless crimes, such as the possession and use
of illegal drugs, do not escape the law where
they
are committed at home. Stanley itself recognized that its holding offered
no protection for the possession in the home of drugs, firearms, or stolen
goods. Id., at 568, n. 11. And if respondent's submission is limited to
the voluntary sexual conduct between consenting adults, it would be difficult,
except by fiat, to limit the claimed right to homosexual conduct [478 U.S.
186, 196]while leaving exposed
to prosecution adultery, incest, and other sexual crimes even though they
are committed in the home. We are unwilling to start down that road.
JUSTICE
BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS
join, dissenting.
This
case is no more about "a fundamental right to engage in homosexual sodomy,"
as the Court purports to declare, ante, at 191, than Stanley v. Georgia,
394 U.S. 557 (1969), was about a fundamental right to watch obscene movies,
or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental
right to place interstate bets from a telephone booth. Rather, this case
is about "the most comprehensive of rights and the right most valued by
civilized men," namely, "the right to be let alone." Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
The
statute at issue, Ga. Code Ann. 16-6-2 (1984), denies individuals the right
to decide for themselves whether to engage in particular forms of private,
consensual sexual activity. The Court concludes that 16-6-2 is valid essentially
because "the laws of .. . many States . . . still make such conduct illegal
and have done so for a very long time." Ante, at 190. But the fact that
the moral judgments expressed by statutes like 16-6-2 may be "`natural
and familiar . . . ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United
States.'" Roe v. Wade, 410 U.S. 113, 117 (1973), quoting Lochner v. New
York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Like Justice Holmes,
I believe that "[i]t is revolting to have no better reason for a rule of
law than that so it was laid down in the time of Henry IV. It is still
more revolting if the grounds upon which it was laid down have vanished
long since, and the rule simply persists from blind imitation of the past."
Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). I believe
we must analyze respondent Hardwick's claim in the light of the values
that underlie the constitutional right to privacy. If that right means
anything, it means that, before Georgia can prosecute its citizens for
making choices about the most intimate [478 U.S. 186, 200]aspects
of their lives, it must do more than assert that the choice they have made
is an "`abominable crime not fit to be named among Christians.'" Herring
v. State, 119 Ga. 709, 721, 46 S. E. 876, 882 (1904).
I
In
its haste to reverse the Court of Appeals and hold that the Constitution
does not "confe[r] a fundamental right upon homosexuals to engage in sodomy,"
ante, at 190, the Court relegates the actual statute being challenged to
a footnote and ignores the procedural posture of the case before it. A
fair reading of the statute and of the complaint clearly reveals that the
majority has distorted the question this case presents.
….
the Court's almost obsessive focus on homosexual activity is particularly
hard to justify in light of the broad language Georgia has used. Unlike
the Court, the Georgia Legislature has not proceeded on the assumption
that homosexuals are so different from other citizens that their lives
may be controlled in a way that would not be tolerated if it limited the
choices of those other citizens. Cf. ante, at 188, n. 2. Rather, Georgia
has provided that "[a] person commits the offense of sodomy when he performs
or submits to any sexual act involving the sex organs of one person and
the mouth or anus of another." Ga. Code Ann.16-6-2(a) (1984). The sex or
status of the persons who engage in the act is irrelevant as a matter of
state law. In fact, to the extent I can discern a legislative purpose for
Georgia's 1968 enactment of 16-6-2, that purpose seems to have been to
broaden the coverage of the law to reach heterosexual as well as homosexual
activity. (1) I therefore see no basis for the [478 U.S. 186, 201]Court's
decision to treat this case as an "as applied" challenge to 16-6-2, see
ante, at 188, n. 2, or for Georgia's attempt, both in its brief and at
oral argument, to defend 16-6-2 solely on the grounds that it prohibits
homosexual activity. Michael Hardwick's standing may rest in significant
part on Georgia's apparent willingness to enforce against homosexuals a
law it seems not to have any desire to enforce against heterosexuals. See
Tr. of Oral Arg. 4-5; cf. 760 F.2d 1202, 1205-1206 (CA11 1985). But his
claim that 16-6-2 involves an unconstitutional intrusion into his privacy
and his right of intimate association does not depend in any way on his
sexual orientation.
"Our
cases long have recognized that the Constitution embodies a promise that
a certain private sphere of individual liberty will be kept largely beyond
the reach of government." Thornburgh v. American College of Obstetricians
& Gynecologists,476 U.S. 747,
772 (1986). In construing the right to privacy, the Court has proceeded
along two somewhat distinct, [478 U.S. 186, 204]albeit
complementary, lines. First, it has recognized a privacy interest with
reference to certain decisions that are properly for the individual to
make. E. g., Roe v. Wade, 410 U.S. 113 (1973); Pierce v. Society of Sisters,
268 U.S. 510 (1925). Second, it has recognized a privacy interest with
reference to certain places without regard for the particular activities
in which the individuals who occupy them are engaged. E. g., United States
v. Karo, 468 U.S. 705 (1984); Payton v. New York, 445 U.S. 573 (1980);
Rios v. United States, 364 U.S. 253 (1960). The case before us implicates
both the decisional and the spatial aspects of the right to privacy.
The
Court concludes today that none of our prior cases dealing with various
decisions that individuals are entitled to make free of governmental interference
"bears any resemblance to the claimed constitutional right of homosexuals
to engage in acts of sodomy that is asserted in this case." Ante, at 190-191.
While it is true that these cases may be characterized by their connection
to protection of the family, see Roberts v. United States Jaycees, 468
U.S. 609, 619 (1984), the Court's conclusion that they extend no further
than this boundary ignores the warning in Moore v. East Cleveland, 431
U.S. 494, 501 (1977) (plurality opinion), against "clos[ing] our eyes to
the basic reasons why certain rights associated with the family have been
accorded shelter under the Fourteenth Amendment's Due Process Clause."
We protect those rights not because they contribute, in some direct and
material way, to the general public welfare, but because they form so central
a part of an individual's life. "[T]he concept of privacy embodies the
`moral fact that a person belongs to himself and not others nor to society
as a whole.'" Thornburgh v. American College of Obstetricians & Gynecologists,
476 U.S., at 777 , n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence,
6 Phil. & Pub. Affairs 288-289 (1977). And so we protect the decision
whether to [478 U.S. 186, 205]marry
precisely because marriage "is an association that promotes a way of life,
not causes; a harmony in living, not political faiths; a bilateral loyalty,
not commercial or social projects." Griswold v. Connecticut, 381 U.S.,
at 486 . We protect the decision whether to have a child because parenthood
alters so dramatically an individual's self-definition, not because of
demographic considerations or the Bible's command to be fruitful and multiply.
Cf. Thornburgh v. American College of Obstetricians & Gynecologists,
supra, at 777, n. 6 (STEVENS, J., concurring). And we protect the family
because it contributes so powerfully to the happiness of individuals, not
because of a preference for stereotypical households. Cf. Moore v. East
Cleveland, 431 U.S., at 500 -506 (plurality opinion). The Court recognized
in Roberts, 468 U.S., at 619 , that the "ability independently to define
one's identity that is central to any concept of liberty" cannot truly
be exercised in a vacuum; we all depend on the "emotional enrichment from
close ties with others." Ibid.
Only
the most willful blindness could obscure the fact that sexual intimacy
is "a sensitive, key relationship of human existence, central to family
life, community welfare, and the development of human personality," Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973); see also Carey v. Population
Services International, 431 U.S. 678, 685 (1977). The fact that individuals
define themselves in a significant way through their intimate sexual relationships
with others suggests, in a Nation as diverse as ours, that there may be
many "right" ways of conducting those relationships, and that much of the
richness of a relationship will come from the freedom an individual has
to choose the form and nature of these intensely personal bonds. See Karst,
The Freedom of Intimate Association,
89 Yale L. J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U.S. 438, 453
(1972); Roe v. Wade, 410 U.S., at 153 .
The
behavior for which Hardwick faces prosecution occurred in his own home,
a place to which the Fourth Amendment attaches special significance. The
Court's treatment of this aspect of the case is symptomatic of its overall
refusal to consider the broad principles that have informed our treatment
of privacy in specific cases. Just as the right to privacy is more than
the mere aggregation of a number of entitlements to engage in specific
behavior, so too, protecting the physical integrity of the home is more
than merely a means of protecting specific activities that often take place
there. Even when our understanding of the contours of the right to privacy
depends on "reference to a `place,'" Katz v. United States, 389 U.S., at
361 (Harlan, J., concurring), "the essence of a Fourth Amendment violation
is `not the breaking of [a person's] doors, and the rummaging of his drawers,'
but rather is `the invasion of his indefensible right of personal security,
personal liberty and private property.'" California v. Ciraolo, 476 U.S.
207, 226 (1986) (POWELL, J., dissenting), [478 U.S. 186, 207]quoting
Boyd v. United States, 116 U.S. 616, 630 (1886).
The
Court's interpretation of the pivotal case of Stanley v. Georgia, 394 U.S.
557 (1969), is entirely unconvincing. Stanley held that Georgia's undoubted
power to punish the public distribution of constitutionally unprotected,
obscene material did not permit the State to punish the private possession
of such material. According to the majority here, Stanley relied entirely
on the First Amendment, and thus, it is claimed, sheds no light on cases
not involving printed materials. Ante, at 195. But that is not what Stanley
said. Rather, the Stanley Court anchored its holding in the Fourth Amendment's
special protection for the individual in his
home:
"`The
makers of our Constitution undertook to secure conditions favorable to
the pursuit of happiness. They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They knew that only a part
of the pain, pleasure and satisfactions of life are to be found in material
things. They sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations.'.
. . . . "These are the rights that appellant is asserting in the case before
us. He is asserting the right to read or observe what he pleases - the
right to satisfy his intellectual and emotional needs in the privacy of
his own home." 394 U.S., at 564 -565, quoting Olmstead v. United States,
277 U.S., at 478 (Brandeis, J., dissenting).
The
central place that Stanley gives Justice Brandeis' dissent in Olmstead,
a case raising no First Amendment claim, shows that Stanley rested as much
on the Court's understanding of the Fourth Amendment as it did on the First.
Indeed, in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), the Court
suggested that reliance on the Fourth [478 U.S. 186, 208]Amendment
not only supported the Court's outcome in Stanley but actually was necessary
to it: "If obscene material unprotected by the First Amendment in itself
carried with it a `penumbra' of constitutionally protected privacy, this
Court would not have found it necessary to decide Stanley on the narrow
basis of the `privacy of the home,' which was hardly more than a reaffirmation
that `a man's home is his castle.'" 413 U.S., at 66 . "The right of the
people to be secure in their . . . houses," expressly guaranteed by the
Fourth Amendment, is perhaps the most "textual" of the various constitutional
provisions that inform our understanding of the right to privacy, and thus
I cannot agree with the Court's statement that "[t]he right pressed upon
us here has no . . . support in the text of the Constitution," ante, at
195. Indeed, the right of an individual to conduct intimate relationships
in the intimacy of his or her own home seems to me to be the heart of the
Constitution's protection of privacy.
The
Court's failure to comprehend the magnitude of the liberty interests at
stake in this case leads it to slight the question whether petitioner,
on behalf of the State, has justified Georgia's infringement on these interests.
I believe that neither of the two general justifications for 16-6-2 that
petitioner has advanced warrants dismissing respondent's challenge for
failure to state a claim.
First,
petitioner asserts that the acts made criminal by the statute may have
serious adverse consequences for "the general public health and welfare,"
such as spreading communicable diseases or fostering other criminal activity.
Brief for Petitioner 37.Inasmuch
as this case was dismissed by the District Court on the pleading, it is
not surprising that the record before us is barren of any evidence to support
petitioner's claim. 3 In light of the state of the record, I see [478 U.S.
186, 209]no justification for the
Court's attempt to equate the private, consensual sexual activity at issue
here with the "possession in the home of drugs, firearms, or stolen goods,"
ante, at 195, to which Stanley refused to extend its protection. 394 U.S.,
at 568 , n. 11. None of the behavior so mentioned in Stanley can properly
be viewed as "[v]ictimless," ante, at 195: drugs and weapons are inherently
dangerous, see, e. g., McLaughlin v. United States, 476 U.S. 16 (1986),
and for property to be "stolen," someone must have been wrongfully deprived
of it. Nothing in the record before the Court provides any justification
for finding the activity forbidden by 16-6-2 to be physically dangerous,
either to the persons engaged in it or to others.[478
U.S. 186, 210]
The
core of petitioner's defense of 16-6-2, however, is that respondent and
others who engage in the conduct prohibited by 16-6-2 interfere with Georgia's
exercise of the "`right of the Nation and of the States to maintain a decent
society,'" Paris Adult Theater I v. Slaton, 413 U.S., at 59 -60, quoting
Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Warren, C. J., dissenting).
Essentially, petitioner argues, and the Court agrees, that the fact that
the acts described in 16-6-2 "for hundreds of years, if not thousands,
have been uniformly condemned as immoral" is a sufficient reason to permit
a State to ban them today. Brief for Petitioner 19; see ante, at 190, 192-194,
196.
I
cannot agree that either the length of time a majority has held its convictions
or the passions with which it defends them can withdraw legislation from
this Court's security. See, e. g., Roe v. Wade, 410 U.S. 113 (1973); Loving
v. Virginia, 388 U.S. 1 (1967); Brown v. Board of Education, 347 U.S. 483
(1954). 5 As Justice Jackson wrote so eloquently [478 U.S. 186, 211]for
the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624,
641 -642 (1943), "we apply the limitations of the Constitution with no
fear that freedom to be intellectually and spiritually diverse or even
contrary will disintegrate the social organization. . . . [F]reedom to
differ is not limited to things that do not matter much. That would be
a mere shadow of freedom. The test of its substance is the right to differ
as to things that touch the heart of the existing order." See also Karst,
89 Yale L. J., at 627. It is precisely because the issue raised by this
case touches the heart of what makes individuals what they are that we
should be especially sensitive to the rights of those whose choices upset
the majority. ….
It
took but three years for the Court to see the error in its analysis in
Minersville School District v. Gobitis, 310 U.S. [478 U.S. 186, 214]586
(1940), and to recognize that the threat to national cohesion posed by
a refusal to salute the flag was vastly outweighed by the threat to those
same values posed by compelling such a salute. See West Virginia Board
of Education v. Barnette, 319 U.S. 624 (1943). I can only hope that here,
too, the Court soon will reconsider its analysis and conclude that depriving
individuals of the right to choose for themselves how to conduct their
intimate relationships poses a far greater threat to the values most deeply
rooted in our Nation's history than tolerance of nonconformity could ever
do. Because I think the Court today betrays those values, I dissent.