Legal Definitions - Bowers v. Hardwick (1986)

Bowers v. Hardwick (1986) was a landmark decision by the U.S. Supreme Court that addressed whether the Constitution granted individuals a right to engage in consensual homosexual sexual activity. In this case, the Court considered a Georgia law that criminalized specific sexual acts, including oral and anal sex, regardless of the participants' gender. A man named Michael Hardwick was arrested under this statute after police observed him engaging in consensual sexual activity with another adult man in his own home.

The central question before the Supreme Court was whether the constitutional right to privacy, which protects certain intimate personal decisions, extended to homosexual sexual conduct. The Court ultimately ruled that it did not. The majority opinion stated that there was no "fundamental right" to engage in homosexual sodomy because such conduct was not "deeply rooted in this Nation’s history and tradition" nor "implicit in the concept of ordered liberty." Therefore, the Georgia law was upheld, meaning states could constitutionally criminalize consensual same-sex sexual acts.

This decision had significant implications for LGBTQ+ rights, as it allowed states to maintain laws that criminalized private, consensual sexual activity between same-sex adults. The ruling in Bowers v. Hardwick was later directly overturned by the Supreme Court in the 2003 case of Lawrence v. Texas, which found that such laws were indeed unconstitutional.

Here are some examples illustrating the impact of Bowers v. Hardwick:

• Criminal Enforcement of State Laws: Imagine that in 1995, a couple in a state with a law similar to Georgia's is reported by a neighbor for engaging in consensual sexual activity in their private residence. Local police investigate and, based on the state statute, arrest the individuals. If the couple were to challenge their arrest and the constitutionality of the law in court, the prosecution would cite Bowers v. Hardwick. The Supreme Court's ruling would be used to argue that the state law is constitutional because there is no fundamental right protecting homosexual sexual conduct, thereby justifying the arrests and potential conviction.

• Legislative Debates on "Sodomy Laws": Consider a state legislature in 1998 debating whether to repeal an existing law that criminalizes certain consensual sexual acts between same-sex adults. Lawmakers who wished to keep the law on the books could point directly to Bowers v. Hardwick as binding Supreme Court precedent. They would argue that the Court had affirmed the constitutionality of such statutes, providing a legal basis for their decision to maintain the law, despite arguments from civil liberties advocates about privacy and equality.

• Individual Legal Challenges: Suppose an individual in the year 2000 is charged under a state's "sodomy law" after being found engaging in consensual sexual activity with another adult of the same sex. In their defense, the individual's attorney argues that the law infringes upon their client's constitutional right to privacy and liberty. The presiding judge, bound by existing Supreme Court precedent, would likely dismiss this argument by referring to Bowers v. Hardwick, explaining that the Supreme Court had explicitly ruled that no such fundamental constitutional right exists for homosexual sexual conduct, thus upholding the charge.