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Criminalizing same-sex behavior

U.S. Supreme Court case:
Bowers v. Hardwick (1986)

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Bowers v. Hardwick:

Between 1980 and 2002, courts in ten states -- Arkansas, Georgia, Kentucky, Maryland, Massachusetts, Minnesota, Montana, New York, Pennsylvania, and Tennessee -- ruled their state's anti-gay sex laws to be unconstitutional.

In 1986, the U.S. Supreme Court reviewed a Georgia case involving same-sex behavior:  Bowers v. Hardwick. The Justices were split 5 to 4 on the constitutionality of the law.

bulletThe majority of Justices on the court found that the "Georgia statute is constitutional....

(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable....

(b) Against a background in which many States have criminalized sodomy and still do, 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....

(c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance.....

(d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result.

(e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws...."

bulletJustice John Paul Stevens (R) dissented. He wrote: "...the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack....individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment....Moreover, this protection extends to intimate choices by unmarried as well as married persons....Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them - not the...State - to decide....The essential 'liberty' that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral." [Citations and footnote references deleted]

"Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within 'the sacred precincts of marital bedrooms,' ...or, indeed, between unmarried heterosexual adults....In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by 16-6-2 of the Georgia Criminal Code." 1

The justices voted 5-4 to uphold the right of states to ban any form of sexual activity that they may decide is deviate. Justice Lewis F. Powell Jr., later said publicly that he regretted his vote for the majority. 2

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  1. The text of the Supreme Court's decision in  Bowers v. Hardwick is online at FindLaw. See:  http://caselaw.lp.findlaw.com/scripts/
  2. Linda Greenhouse, "Justices to Reconsider Ruling Against Sex Between Gays," New York Times, 2002-DEC-3, at: http://www.nytimes.com/2002/12/03/

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Copyright © 2002 & 2003 by Ontario Consultants on Religious Tolerance
Originally written: 2002-DEC-13
Latest update: 2003-JAN-17
Author: B.A. Robinson

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