Bowers v. Hardwick

In Bowers, the Supreme Court retreated from its earlier position that consensual sexual activity that is not obscene was protected by a constitutional right to privacy.

Michael Hardwick was a gay Atlanta bartender who was convicted under a Georgia anti-sodomy statute after he was discovered engaging in oral sex with another man. A police officer, who had come to serve Hardwick with a warrant for not having paid a fine for drinking in public, was admitted into Hardwick's home by another tenant who did not know whether Hardwick was there. The police officer then entered Hardwick's bedroom, where he found Hardwick and his partner having sex. Hardwick was arrested and charged with criminal sodomy.

The district attorney decided not to prosecute the case against Hardwick until he had further evidence, but Hardwick brought suit in federal district court challenging the constitutionality of the state law insofar as it made consensual sodomy a criminal offense. After his case was dismissed, he appealed this ruling to the U.S. Court of Appeals for the Eleventh Circuit, which found that the law violated Hardwick's right to privacy and ordered the lower court to try the case. Before the trial could go forward, Michael Bowers, the Georgia attorney general, petitioned the U.S. Supreme Court for a review of the circuit court's ruling.

Justice White wrote the majority opinion for the Court, upholding the Georgia anti-sodomy statute. Although in cases like Griswold v. Connecticut (1965; establishing the right of married couples to use contraceptives) and Roe v. Wade (1973; establishing a woman's right to abortion) the Court had upheld a constitutional right to privacy where sexual matters were concerned, White now distinguished those precedents from the case before the Court.

Accepting the decisions in these cases . . . we think it evident that none of the rights announced in those cases bears any resemblance to the 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 . . . 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.