Bowers v. Hardwick
Significance: The Supreme Court held that the U.S. Constitution does not protect a right to engage in consensual homosexual conduct.
By 1986 the Supreme Court had established that the due process clauses of the Fifth and Fourteenth Amendments protect a fundamental right to generic privacy, especially in personal choices relating to marriage, procreation, and child rearing. Proponents of gay rights argued that the right of privacy should be extended to provide protection for homosexual practices, which would invalidate all legislation proscribing such practices. Michael Hardwick, in the privacy of his own bedroom, was arrested for violating Georgia's antisodomy law. Hardwick, with the assistance of the American Civil Liberties Union, used the arrest to challenge the constitutionality of the Georgia statute. By a 5-4 vote, the Court upheld the statute. Speaking for the majority, Justice Byron R. White argued that the Court should be cautious about expanding the number of liberties based on the doctrine of substantive due process, and that the liberties protected under the doctrine should be limited to those that are “implicit in the concept of ordered liberty” and those that are “deeply rooted in this Nation's history and tradition.” White noted that as late as 1961, all fifty states had criminalized homosexual conduct and that half of the states continued to do so. He warned against “judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” In a concurring opinion, Justice Lewis F. Powell, Jr., wrote that the actual imposition of a criminal penalty for homosexual conduct would be contrary to the principles of the Eighth Amendment. After retiring, Powell told law students that he had “probably made a mistake” in voting with the majority.