## Facts

- A Georgia police officer observed Michael Hardwick engaging in consensual homosexual sodomy with another adult in Hardwick’s home.
- Hardwick was charged under Ga. Code Ann. § 16-6-2, which criminalized sodomy.
- Hardwick filed suit in federal court challenging the statute as unconstitutional as applied to consensual adult conduct, alleging continuing risk of arrest.
- The federal district court dismissed for failure to state a claim.
- The Eleventh Circuit reversed, concluding the statute burdened a fundamental right related to private, intimate association and required strict scrutiny.

## Issues

1. Whether the Due Process Clause recognizes a fundamental right for homosexuals to engage in consensual sodomy, rendering Georgia’s sodomy statute unconstitutional.
2. If no fundamental right is recognized, whether Georgia may criminalize such conduct based on moral judgments under rational basis review.
3. Whether the fact that the conduct occurred in the home changes the constitutional analysis.

## Decision

- The Supreme Court reversed the Eleventh Circuit and upheld the Georgia statute.
- The Court held the Constitution does not confer a fundamental right upon homosexuals to engage in consensual sodomy.
- The Court declined to treat prior privacy decisions concerning marriage, family, and procreation as supporting a general constitutional protection for all private consensual sexual conduct.
- The Court concluded that history and longstanding state prohibitions on sodomy weighed strongly against recognizing the asserted right as fundamental.
- The Court held that the home setting did not alter the outcome and distinguished precedents protecting possession of obscene materials in the home.
- Applying rational basis review, the Court accepted moral disapproval as a legitimate basis for the criminal prohibition.

## Legal Principles

- Claimed substantive due process rights are recognized as fundamental only when deeply rooted in the Nation’s history and tradition and implicit in ordered liberty.
- Prior privacy precedents protecting decisions about marriage, procreation, contraception, and family relationships do not establish a general right to engage in any private consensual sexual conduct.
- The location of conduct in the home does not, by itself, constitutionalize conduct otherwise subject to criminal prohibition.
- When a claimed liberty interest is not fundamental, a state law need only satisfy rational basis review; moral judgments may supply a legitimate governmental interest.

## Conclusion

The Court held that consensual homosexual sodomy is not a fundamental right protected by the Due Process Clause and that Georgia could criminalize such conduct under rational basis review, including on the basis of moral disapproval.


Bowers v. Hardwick, 478 U.S. 186 (1986)