478 U.S. 186 (1986)
In August 1982, respondent Michael Hardwick was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of respondent's home.1 After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed.2
Hardwick, who identified as a practicing homosexual, then brought suit in the Federal District Court challenging the constitutionality of the statute insofar as it criminalized consensual sodomy.3 He asserted that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest.4 The District Court granted the defendants' motion to dismiss for failure to state a claim, relying on Doe v. Commonwealth's Attorney for the City of Richmond, which the Supreme Court had summarily affirmed.5
A divided panel of the Court of Appeals for the Eleventh Circuit reversed.6 The appellate court held that the Georgia statute violated respondent's fundamental rights because his homosexual activity is a private and intimate association beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.7 It remanded for trial.8
John and Mary Doe were also plaintiffs in the action.9 They alleged that they wished to engage in sexual activity proscribed by the statute in the privacy of their home and that they had been chilled and deterred from engaging in such activity by both the existence of the statute and Hardwick's arrest.10 The District Court held that because they had neither sustained, nor were in immediate danger of sustaining, any direct injury from the enforcement of the statute, they did not have proper standing to maintain the action.11 The Court of Appeals affirmed that dismissal.12
The Georgia statute at issue, Ga. Code Ann. § 16-6-2, provides that a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.13 A person convicted shall be punished by imprisonment for not less than one nor more than twenty years.14 Because other Courts of Appeals had arrived at judgments contrary to that of the Eleventh Circuit, the Supreme Court granted the Attorney General's petition for certiorari questioning the holding that the sodomy statute violates the fundamental rights of homosexuals.15
Whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy?16
The Due Process Clause of the Fourteenth Amendment protects only those fundamental rights that are deeply rooted in the Nation's history and tradition or implicit in the concept of ordered liberty.17 This standard was established in precedents such as Palko v. Connecticut and Moore v. East Cleveland.18 Rights lacking such roots receive no heightened protection from state regulation.19
No. The rule requires a showing that the asserted right is deeply rooted in history and tradition or implicit in ordered liberty.20 In the established facts, Hardwick was charged under Ga. Code Ann. § 16-6-2 for a private act with another adult male in his home after a preliminary hearing.2122
Yet the statute's validity turns on whether the claimed right meets the historical test.23 Sodomy was a criminal offense at common law.24 It was forbidden by the laws of the original thirteen states at ratification of the Bill of Rights.25 It was criminalized in all but five states when the Fourteenth Amendment was ratified.26
It was outlawed in all fifty states until 1961.27 It was still punished in twenty-four states and the District of Columbia in 1986.28 These facts demonstrate that the right is not deeply rooted and therefore receives no fundamental-right status under the Due Process Clause.29
The Federal Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.30
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Chief Justice Burger joined the majority.31 He wrote separately to emphasize that proscriptions against sodomy have ancient roots reaching back through Western civilization and Judeo-Christian moral standards.32 Homosexual sodomy was treated as a capital crime under Roman law.33
Blackstone condemned it as an offense of deeper malignity than rape.34 He concluded that recognizing a fundamental right would cast aside millennia of moral teaching.35 Nothing in the Constitution compels states to treat such conduct as fundamental.36
This view reinforces the majority's historical analysis by adding the dimension of continuous legislative authority over the conduct rather than individual preference.37
Whether the Court's prior privacy decisions construing the Due Process Clause extend to protect homosexual sodomy?38
Prior privacy cases such as Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Carey v. Population Services International protect specific decisions concerning marriage, procreation, contraception, family relationships, and abortion.39 They do not extend to all intimate personal choices.40 They do not insulate all private sexual conduct between consenting adults from state proscription.41
No. The rule limits the reach of privacy precedents to the subjects they actually addressed.42 In the established facts, Hardwick challenged the Georgia statute as applied to consensual homosexual sodomy after the District Court dismissed his complaint.43 The Eleventh Circuit reversed on the basis of Griswold, Eisenstadt, Stanley, and Roe.44 None of those decisions bears any resemblance to a claimed right of homosexuals to engage in sodomy.45
No connection between family, marriage, or procreation on the one hand and homosexual activity on the other was demonstrated.46 The privacy right is not absolute.47 It does not reach every matter of intimate personal choice.48 The precedents therefore do not control or extend to protect the conduct at issue.49
The Court's prior privacy decisions do not extend to protect homosexual sodomy.50
Whether the privacy of the home under Stanley v. Georgia insulates private consensual sodomy from criminal prosecution?51
No. The rule confines Stanley to its First Amendment grounding and refuses to extend its protection to sexual conduct.55 In the established facts, Hardwick was charged for an act committed in the bedroom of his home.56 He relied on Stanley to argue that the privacy of the home barred prosecution.57 Stanley itself was decided on the First Amendment right to receive information and ideas.58
It expressly did not protect distribution or sale.59 It recognized no protection for possession of drugs, firearms, or stolen goods in the home.60 The asserted right to engage in sodomy lacks similar textual support in the Constitution.61 It cannot be limited to homosexual conduct without also protecting adultery, incest, and other crimes committed at home.62
Stanley therefore does not insulate the conduct from prosecution under Ga. Code Ann. § 16-6-2.63
The privacy of the home under Stanley v. Georgia does not insulate private consensual sodomy from criminal prosecution.64
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Justice Powell joined the majority opinion.65 He wrote separately to note that there is no fundamental right to engage in homosexual sodomy and the Georgia statute is constitutional.66 The severity of the authorized sentence of up to twenty years for a single private act raises a potential Eighth Amendment issue.67
Hardwick had not been tried, convicted, or sentenced.68 He had not raised the Eighth Amendment claim below.69 That question was not before the Court.70
This concurrence adds a distinct caution about the statute's penalty without disturbing the holding on the Due Process claim.71
Whether a rational basis supports state sodomy laws based on majority moral views?72
Laws may rest on notions of morality.73 The presumed belief of a majority that homosexual sodomy is immoral and unacceptable provides a rational basis sufficient to uphold the statute under the Due Process Clause.74 Invalidating all laws representing moral choices would improperly expand judicial authority.75
Yes. The rule accepts majority moral sentiment as a legitimate basis for legislation.76 In the established facts, Hardwick asserted that the Georgia statute lacked a rational basis beyond the majority's view that homosexual sodomy is immoral.77 The Court rejected that assertion.78
It observed that the law is constantly based on notions of morality.79 If every such law were invalidated the courts would be overwhelmed.80 With twenty-four states and the District of Columbia still criminalizing the conduct in 1986, the majority's moral views supply a rational basis.81 The statute therefore survives rational-basis review.82
A rational basis supports state sodomy laws based on majority moral views.83
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Joined by Justices Brennan, Marshall, And Stevens
Justice Blackmun dissented.84 He argued that the case concerns the right to be let alone rather than a narrow right to homosexual sodomy.85 The statute's condemnation for centuries and its survival in many states do not answer whether the Constitution protects private consensual sexual activity in the home.86
The statute is overbroad because it reaches private consensual conduct without limitation to public acts, minors, or nonconsensual activity.87 The majority's reliance on history and tradition fails to justify the intrusion into personal liberty protected by the Due Process Clause.88
Joined by Justices Brennan And Marshall
Justice Stevens joined Justice Blackmun's dissent.89 He wrote separately to stress that the Georgia statute is not supported by any legitimate state interest justifying its intrusion into the privacy of the home.90 The statute is a blanket prohibition on private consensual sexual activity between adults.91
It is not limited to conduct causing physical harm, involving minors, or lacking consent.92 The State failed to show the statute is necessary or narrowly tailored to any legitimate interest.93 It violates the Due Process Clause regardless of the sexual orientation of the participants.94