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Legality of Homosexuality in the State of Georgia

Legality of Homosexuality in the State of Georgia


Section 1: Citation



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



Section 2: Facts



Michael Hardwick was observed by a Georgia police officer while engaging in homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that made homosexual sodomy illegal, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court



Section 3: Issue(s)



Does the Constitution inherently include a fundamental right upon homosexuals to engage in consensual sodomy, and in doing so make the laws of many states which make such conduct illegal void?



Section 4: Reasoning



JUSTICE WHITE. None of the rights announced in past cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy. Proscription against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when the ratified the Bill of Rights. The right pressed upon here has no firm basis in the Constitution. Allowing homosexual conduct would leave exposed to prosecution, adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.



Section 5: Decision



Reversed







Section 6: Rule



The Constitution does not inherently include a fundamental right upon homosexuals to engage in consensual sodomy, and in doing so does not make the laws of many states which make such conduct illegal void?



Section 7: Concurring/Dissenting Opinions



CHIEF JUSTICE BURGER, concurring. I agree, but write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy. Blackstone described “the infamous crime of nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.”



JUSTICE POWELL, concurring. I agree that there is no fundamental right under the Due Process Clause. The respondent, however, may be protected under the Eight Amendnment. A Sentence of 20 years would certainly create an Eight amendment issue.



JUSTICE BLACKMUN with JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. This case is about “the most comprehensive of rights and...

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