Privacy
Marriage and Family
Bowers v. Hardwick (1986)
478 U.S. 186 (1986)
Vote: 5-4
Decision: Reversed
Majority: White joined by Burger, Powell, Rehnquist, O’Connor
Concurrence: Burger
Concurrence: Powell
Dissent: Blackmun joined by Brennan, Marshall, Stevens
Dissent: Stevens, joined by Brennan and Marshall
…
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, (1977). Pierce v. Society of Sisters, (1925), and Meyer v. Nebraska, (1923), were described as dealing with child rearing and education; Prince v. Massachusetts, (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, (1942), with procreation; Loving v. Virginia, (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, (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 …
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 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 far short of overcoming this resistance …
Even if the conduct at issue here is not a fundamental right, respondent assert