U.S. Supreme Court Bowers v. Hardwick, 478
U.S. 186 (1986) Bowers v. Hardwick No. 85-140 Argued March 31, 1986 Decided June 30, 1986 478
U.S. 186 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT Syllabus After being charged with violating the Georgia statute
criminalizing sodomy by committing that act with another adult male
in the bedroom of his home, respondent Hardwick (respondent)
brought suit in Federal District Court, challenging the
constitutionality of the statute insofar as it criminalized
consensual sodomy. The court granted the defendants' motion to
dismiss for failure to state a claim. The Court of Appeals reversed
and remanded, holding that the Georgia statute violated
respondent's fundamental rights. Held: The Georgia statute is constitutional. Pp. 478 U. S.
190 -196.

															(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. Pp. 478 U. S.
190 -191.

															(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. Pp. 478 U. S.
191 -194.

															(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.
Pp. 478 U. S.
194 -195.

															(d) The fact that homosexual conduct occurs in the privacy of
the home does not affect the result. Stanley v. Georgia, 394 U. S. 557 ,
distinguished. Pp. 478 U. S.
195 -196.

															(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. P. 478 U. S.
196 .

															760 F.2d 1202, reversed. Page 478 U. S. 187 WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER,
C.J., post, p. 478 U. S. 196 ,
and POWELL, J., post, p. 478 U. S. 197 ,
filed concurring opinions. BLACKMUN, J., filed a dissenting
opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 478 U. S. 199 .
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 478 U. S.
214 .

															JUSTICE WHITE delivered the opinion of the Court.

															In August, 1982, respondent Hardwick (hereafter respondent) was
charged with violating the Georgia statute criminalizing Page 478 U. S. 188 sodomy [ Footnote 1 ] by
committing that act with another adult male in the bedroom of
respondent's home. After a preliminary hearing, the District
Attorney decided not to present the matter to the grand jury unless
further evidence developed.

															Respondent then brought suit in the Federal District Court,
challenging the constitutionality of the statute insofar as it
criminalized consensual sodomy. [ Footnote 2 ] He asserted that he was a practicing
homosexual, that the Georgia sodomy statute, as administered by the
defendants, placed him in imminent danger of arrest, and that the
statute for several reasons violates the Federal Constitution. 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, 403 F.
Supp. 1199 (ED Va.1975), which this Court summarily affirmed,
425 U.S. 901 (1976). Page 478 U. S. 189 A divided panel of the Court of Appeals for the Eleventh Circuit
reversed. 760 F.2d 1202 (1985). The court first held that, because Doe was distinguishable and, in any event, had been
undermined by later decisions, our summary affirmance in that case
did not require affirmance of the District Court. Relying on our
decisions in Griswold v. Connecticut, 381 U.
S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Georgia, 394 U.
S. 557 (1969); and Roe v. Wade, 410 U.
S. 113 (1973), the court went on to hold that the
Georgia statute violated respondent's fundamental rights because
his homosexual activity is a private and intimate association that
is beyond the reach of state regulation by reason of the Ninth
Amendment and the Due Process Clause of the Fourteenth Amendment.
The case was remanded for trial, at which, to prevail, the State
would have to prove that the statute is supported by a compelling
interest and is the most narrowly drawn means of achieving that
end.

															Because other Courts of Appeals have arrived at judgments
contrary to that of the Eleventh Circuit in this case, [ Footnote 3 ] we granted the Attorney
General's petition for certiorari questioning the holding that the
sodomy statute violates the fundamental rights of homosexuals. We
agree with petitioner that the Court of Appeals erred, and hence
reverse its judgment. [ Footnote
4 ] Page 478 U. S. 190 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, 431 U.
S. 678 , 431 U. S. 685 (1977). Pierce v. Society of Sisters, 268 U.
S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923), were described as dealing with childrearing and education; Prince v. Massachusetts, 321 U. S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 (1942), with procreation; Loving v. Virginia, 388 U. S.
1 (1967), with marriage; Griswold v. Connecticut,
supra, and Eisenstadt v. Baird, supra, with
contraception; and Roe v. Wade, 410 U.
S. 113 (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. Carey v.
Population Services International, supra, at 431 U. S.
688 -689.

															Accepting the decisions in these cases and the above description
of them, we think it evident that none of the rights announced in
those cases bears any resemblance to the Page 478 U. S. 191 claimed constitutional right of homosexuals to engage in acts of
sodomy that is asserted in this case. No connection between family,
marriage, or procreation, on the one hand, and homosexual activity,
on the other, has been demonstrated, either by the Court of Appeals
or by respondent. Moreover, any claim that these cases nevertheless
stand for the proposition that any kind of private sexual conduct
between consenting adults is constitutionally insulated from state
proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections
provided by the Due Process Clause, did not reach so far. 431 U.S.
at 431 U. S. 688 ,
n. 5, 431 U. S. 694 ,
n. 17.

															Precedent aside, however, respondent would have us announce, as
the Court of Appeals did, a fundamental right to engage in
homosexual sodomy. This we are quite unwilling to do. It is true
that, despite the language of the Due Process Clauses of the Fifth
and Fourteenth Amendments, which appears to focus only on the
processes by which life, liberty, or property is taken, the cases
are legion in which those Clauses have been interpreted to have
substantive content, subsuming rights that to a great extent are
immune from federal or state regulation or proscription. Among such
cases are those recognizing rights that have little or no textual
support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey. Striving to assure itself and the public that announcing rights
not readily identifiable in the Constitution's text involves much
more than the imposition of the Justices' own choice of values on
the States and the Federal Government, the Court has sought to
identify the nature of the rights qualifying for heightened
judicial protection. In Palko v. Connecticut, 302 U.
S. 319 , 302 U. S. 325 , 302 U. S. 326 (1937), it was said that this category includes those fundamental
liberties that are "implicit in the concept of ordered liberty,"
such that "neither Page 478 U. S. 192 liberty nor justice would exist if [they] were sacrificed." A
different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U. S. 494 , 431 U. S. 503 (1977) (opinion of POWELL, J.), where they are characterized as
those liberties that are "deeply rooted in this Nation's history
and tradition." Id. at 431 U. S. 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S.
at 381 U. S.
506 .

															It is obvious to us that neither of these formulations would
extend a fundamental right to homosexuals to engage in acts of
consensual sodomy. Proscriptions against that conduct have ancient
roots. See generally Survey on the Constitutional Right to
Privacy in the Context of Homosexual Activity, 40 U.Miami L.Rev.
521, 525 (1986). Sodomy was a criminal offense at common law, and
was forbidden by the laws of the original 13 States when they
ratified the Bill of Rights. [ Footnote 5 ] In 1868, when the Fourteenth Amendment was Page 478 U. S. 193 ratified, all but 5 of the 37 States in the Union had criminal
sodomy laws. [ Footnote 6 ] In
fact, until 1961, [ Footnote 7 ]
all 50 States outlawed sodomy, and today, 24 States and the
District of Columbia Page 478 U. S. 194 continue to provide criminal penalties for sodomy performed in
private and between consenting adults. See Survey, U.Miami
L.Rev. supra, at 524, n. 9. Against this background, 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.

															Nor are we inclined to take a more expansive view of our
authority to discover new fundamental rights imbedded in the Due
Process Clause. 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 Page 478 U. S. 195 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.

															Respondent, however, asserts that the result should be different
where the homosexual conduct occurs in the privacy of the home. He
relies on Stanley v. Georgia, 394 U.
S. 557 (1969), where the Court held that the First
Amendment prevents conviction for possessing and reading obscene
material in the privacy of one's home:

															"If the First Amendment means anything, it means that a State
has no business telling a man, sitting alone in his house, what
books he may read or what films he may watch." Id. at 394 U. S.
565 . Stanley did protect conduct that would not have been
protected outside the home, and it partially prevented the
enforcement of state obscenity laws; but the decision was firmly
grounded in the First Amendment. The right pressed upon us here has
no similar support in the text of the Constitution, and it does not
qualify for recognition under the prevailing principles for
construing the Fourteenth Amendment. Its limits are also difficult
to discern. Plainly enough, otherwise illegal conduct is not always
immunized whenever it occurs in the home. Victimless crimes, such
as the possession and use of illegal drugs, do not escape the law
where they are committed at home. Stanley itself
recognized that its holding offered no protection for the
possession in the home of drugs, firearms, or stolen goods. Id. at 394 U. S. 568 ,
n. 11. And if respondent's submission is limited to the voluntary
sexual conduct between consenting adults, it would be difficult,
except by fiat, to limit the claimed right to homosexual
conduct Page 478 U. S. 196 while leaving 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.

															Even if the conduct at issue here is not a fundamental right,
respondent asserts that there must be a rational basis for the law,
and that there is none in this case other than the presumed belief
of a majority of the electorate in Georgia that homosexual sodomy
is immoral and unacceptable. This is said to be an inadequate
rationale to support the law. The law, however, is constantly based
on notions of morality, and if all laws representing essentially
moral choices are to be invalidated under the Due Process Clause,
the courts will be very busy indeed. Even respondent makes no such
claim, but insists that majority sentiments about the morality of
homosexuality should be declared inadequate. We do not agree, and
are unpersuaded that the sodomy laws of some 25 States should be
invalidated on this basis. [ Footnote 8 ]

															Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ]

															Georgia Code Ann. § 16-6-2 (1984) provides, in pertinent part,
as follows:

															"(a) 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. . . ."

															"(b) A person convicted of the offense of sodomy shall be
punished by imprisonment for not less than one nor more than 20
years. . . ."

															[ Footnote 2 ]

															John and Mary Doe were also plaintiffs in the action. They
alleged that they wished to engage in sexual activity proscribed by
§ 16-6-2 in the privacy of their home, App. 3, and that they had
been "chilled and deterred" from engaging in such activity by both
the existence of the statute and Hardwick's arrest. Id. at
5. The District Court held, however, 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. Id. at 18. The
Court of Appeals affirmed the District Court's judgment dismissing
the Does' claim for lack of standing, 760 F.2d 1202, 1206-1207
(CA11 1985), and the Does do not challenge that holding in this
Court.

															The only claim properly before the Court, therefore, is
Hardwick's challenge to the Georgia statute as applied to
consensual homosexual sodomy. We express no opinion on the
constitutionality of the Georgia statute as applied to other acts
of sodomy.

															[ Footnote 3 ] See Baker v. Wade, 769 F.2d 289, rehearing
denied, 774 F.2d 1285 (CA5 1985) (en banc); Dronenburg v.
Zech, 239 U.S.App.D.C. 229, 741 F.2d 1388, rehearing
denied, 241 U.S.App.D.C. 262, 746 F.2d 1579 (1984).

															[ Footnote 4 ]

															Petitioner also submits that the Court of Appeals erred in
holding that the District Court was not obligated to follow our
summary affirmance in Doe. We need not resolve this
dispute, for we prefer to give plenary consideration to the merits
of this case rather than rely on our earlier action in Doe. See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 14 (1976); Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 309 ,
n. 1 (1976); Edelman v. Jordan, 415 U.
S. 651 , 415 U. S. 671 (1974). Cf. Hicks v. Miranda, 422 U.
S. 332 , 422 U. S. 344 (1975).

															[ Footnote 5 ]

															Criminal sodomy laws in effect in 1791:

															Connecticut: 1 Public Statute Laws of the State of Connecticut,
1808, Title LXVI, ch. 1, § 2 (rev. 1672).

															Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5
(passed 1719).

															Georgia had no criminal sodomy statute until 1816, but sodomy
was a crime at common law, and the General Assembly adopted the
common law of England as the law of Georgia in 1784. The First Laws
of the State of Georgia, pt. 1, p. 290 (1981).

															Maryland had no criminal sodomy statute in 1791. Maryland's
Declaration of Rights, passed in 1776, however, stated that "the
inhabitants of Maryland are entitled to the common law of England,"
and sodomy was a crime at common law. 4 W. Swindler, Sources and
Documents of United States Constitutions 372 (1975).

															Massachusetts: Acts and Laws passed by the General Court of
Massachusetts, ch. 14, Act of Mar. 3, 1785.

															New Hampshire passed its first sodomy statute in 1718. Acts and
Laws of New Hampshire 1680-1726, p. 141 (1978).

															Sodomy was a crime at common law in New Jersey at the time of
the ratification of the Bill of Rights. The State enacted its first
criminal sodomy law five years later. Acts of the Twentieth General
Assembly, Mar. 18, 1796, ch. DC, § 7.

															New York: Laws of New York, ch. 21 (passed 1787)

															At the time of ratification of the Bill of Rights, North
Carolina had adopted the English statute of Henry VIII outlawing
sodomy. See Collection of the Statutes of the Parliament
of England in Force in the State of North Carolina, ch. 17, p. 314
(Martin ed. 1792).

															Pennsylvania: Laws of the Fourteenth General Assembly of the
Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).

															Rhode Island passed its first sodomy law in 1662. The Earliest
Acts and Laws of the Colony of Rhode Island and Providence
Plantations 1647-1719, p. 142 (1977).

															South Carolina: Public Laws of the State of South Carolina, p.
49 (1790). At the time of the ratification of the Bill of Rights,
Virginia had no specific statute outlawing sodomy, but had adopted
the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p.
127 (1821) (passed 1776).

															[ Footnote 6 ]

															Criminal sodomy statutes in effect in 1868:

															Alabama: Ala.Rev.Code § 3604 (1867).

															Arizona (Terr.): Howell Code, ch. 10, § 48 (1865).

															Arkansas: Ark.Stat., ch. 51, Art. IV, § 5 (1858).

															California: 1 Cal.Gen.Laws, � 1450, § 48 (1865).

															Colorado (Terr.): Colo.Rev.Stat., ch. 22, §§ 45, 46 (1868).

															Connecticut: Conn.Gen.Stat., Tit. 122, ch. 7, § 124 (1866).

															Delaware: Del.Rev.Stat., ch. 131, § 7 (1893).

															Florida: Fla.Rev.Stat., div. 5, § 2614 (passed 1868) (1892).

															Georgia: Ga.Code §§ 4286, 4287, 4290 (1867).

															Kingdom of Hawaii: Haw.Penal Code, ch. 13, § 11 (1869).

															Illinois: Ill.Rev.Stat., div. 5, §§ 49, 50 (1845).

															Kansas (Terr.): Kan.Stat., ch. 53, § 7 (1855).

															Kentucky: 1 Ky.Rev.Stat., ch. 28, Art. IV, § 11 (1860).

															Louisiana: La.Rev.Stat., Crimes and Offences, § 5 (1856).

															Maine: Me.Rev.Stat., Tit. XII, ch. 160, § 4 (1840).

															Maryland: 1 Md. Code, Art. 30, § 201 (1860).

															Massachusetts: Mass. Gen.Stat., ch. 165, § 18 (1860).

															Michigan: Mich. Rev.Stat., Tit. 30, ch. 158, § 16 (1846).

															Minnesota: Minn.Stat., ch. 96, § 13 (1859).

															Mississippi: Miss. Rev. Code, ch. 64, § LII, Art. 238
(1857).

															Missouri: 1 Mo.Rev.Stat., ch. 50, Art. VIII, § 7 (1856).

															Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal
Practice Acts, ch. IV, § 44 (1866).

															Nebraska (Terr.): Neb.Rev.Stat., Crim.Code, ch. 4, § 47
(1866).

															Nevada (Terr.): Nev.Comp.Laws, 1861-1900, Crimes and
Punishments, § 45.

															New Hampshire: N.H.Laws, Act. of June 19, 1812, § 5 (1815).

															New Jersey: N.J.Rev.Stat., Tit. 8, ch. 1 § 9 (1847).

															New York: 3 N.Y.Rev.Stat., pt. 4. ch. 1, Tit. 5, § 20 (5th ed.
1859).

															North Carolina: N.C.Rev.Code, ch. 34, § 6 (1855).

															Oregon: Laws of Ore., Crimes Against Morality, etc., ch. 7, §
655 (1874).

															Pennsylvania: Act of Mar. 31, 1860, § 32, Pub.L. 392, in 1
Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905).

															Rhode Island: R.I.Gen.Stat., ch. 232, § 12 (1872).

															South Carolina: Act of 1712, in 2 Stat. at Large of S.C.
1682-1716, p. 493 (1837).

															Tennessee: Tenn.Code, ch. 8, Art. 1, § 4843 (1858).

															Texas: Tex.Rev.Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed
1860).

															Vermont: Acts and Laws of the State of Vt. (1779).

															Virginia: Va.Code, ch. 149, § 12 (1868).

															West Virginia: W.Va.Code, ch. 149, § 12 (1868).

															Wisconsin (Terr.): Wis.Stat. § 14, p. 367 (1839).

															[ Footnote 7 ]

															In 1961, Illinois adopted the American Law Institute's Model
Penal Code, which decriminalized adult, consensual, private, sexual
conduct. Criminal Code of 1961, §§ 11-2, 11-3, 1961 Ill.Laws,
pp.1985, 2006 ( codified as amended at Ill.Rev.Stat., ch.
38, �� 11-2, 11-3 (1983) (repealed 1984)). See American
Law Institute, Model Penal Code § 213.2 (Proposed Official Draft
1962).

															[ Footnote 8 ]

															Respondent does not defend the judgment below based on the Ninth
Amendment, the Equal Protection Clause, or the Eighth
Amendment.

															CHIEF JUSTICE BURGER, concurring.

															I join the Court's opinion, but I write separately to underscore
my view that, in constitutional terms, there is no such thing as a
fundamental right to commit homosexual sodomy.

															As the Court notes, ante at 478 U. S. 192 ,
the proscriptions against sodomy have very "ancient roots."
Decisions of individuals relating to homosexual conduct have been
subject to state intervention throughout the history of Western
civilization. Condemnation of those practices is firmly rooted in
Judeo-Christian moral and ethical standards. Homosexual sodomy was
a capital crime under Roman law. See Code Theod. 9.7.6;
Code Just. 9.9.31. See also D. Bailey, Homosexuality Page 478 U. S. 197 and the Western Christian Tradition 70-81 (1975). During the
English Reformation, when powers of the ecclesiastical courts were
transferred to the King's Courts, the first English statute
criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone
described "the infamous crime against 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." 4 W. Blackstone, Commentaries *215. The common
law of England, including its prohibition of sodomy, became the
received law of Georgia and the other Colonies. In 1816, the
Georgia Legislature passed the statute at issue here, and that
statute has been continuously in force in one form or another since
that time. To hold that the act of homosexual sodomy is somehow
protected as a fundamental right would be to cast aside millennia
of moral teaching.

															This is essentially not a question of personal "preferences,"
but rather of the legislative authority of the State. I find
nothing in the Constitution depriving a State of the power to enact
the statute challenged here.

															JUSTICE POWELL, concurring.

															I join the opinion of the Court. I agree with the Court that
there is no fundamental right -- i.e., no substantive
right under the Due Process Clause -- such as that claimed by
respondent Hardwick, and found to exist by the Court of Appeals.
This is not to suggest, however, that respondent may not be
protected by the Eighth Amendment of the Constitution. The Georgia
statute at issue in this case, Ga.Code Ann. § 16-6-2 (1984),
authorizes a court to imprison a person for up to 20 years for a
single private, consensual act of sodomy. In my view, a prison
sentence for such conduct -- certainly a sentence of long duration
-- would create a serious Eighth Amendment issue. Under the Georgia
statute, a single act of sodomy, even in the private setting of a
home, is a Page 478 U. S. 198 felony comparable in terms of the possible sentence imposed to
serious felonies such as aggravated battery, § 16-5-24,
first-degree arson, § 16-7-60, and robbery, § 16-8-40. [ Footnote 2/1 ]

															In this case, however, respondent has not been tried, much less
convicted and sentenced. [ Footnote
2/2 ] Moreover, respondent has not raised the Eighth Amendment
issue below. For these reasons this constitutional argument is not
before us. Page 478 U. S. 199 [ Footnote 2/1 ]

															Among those States that continue to make sodomy a crime, Georgia
authorizes one of the longest possible sentences. See Ala.Code § 13A6-65(a)(3) (1982) (1-year maximum);
Ariz.Rev.Stat.Ann. §§ 13-1411, 13-1412 (West Supp.1985) (30 days);
Ark.Stat.Ann. § 41-1813 (1977) (1-year maximum); D.C.Code § 22-3502
(1981) (10-year maximum); Fla.Stat. § 800.02 (1985) (60-day
maximum); Ga.Code Ann. § 16-6-2 (1984) (1 to 20 years); Idaho Code
§ 18-6605 (1979) (5-year minimum); Kan.Stat.Ann. § 21-3505
(Supp.1985) (6-month maximum); Ky.Rev.Stat. § 510.100 (1985) (90
days to 12 months); La.Rev.Stat.Ann. § 14:89 (West 1986) (5-year
maximum); Md.Ann.Code, Art. 27, §§ 553-554 (1982) (10-year
maximum); Mich.Comp.Laws § 750.158 (1968) (15-year maximum);
Minn.Stat. § 609.293 (1984) (1-year maximum); Miss.Code Ann. §
97-29-59 (1973) (10-year maximum); Mo.Rev.Stat. § 566.090
(Supp.1984) (1-year maximum); Mont.Code Ann. § 45-5-505 (1985)
(10-year maximum); Nev.Rev.Stat. § 201.190 (1985) (6-year maximum);
N.C.Gen.Stat. § 14-177 (1981) (10-year maximum); Okla.Stat., Tit.
21, § 886 (1981) (10-year maximum); R.I.Gen.Laws § 11-10-1 (1981)
(7 to 20 years); S.C.Code § 16-15-120 (1985) (5-year maximum);
Tenn.Code Ann. § 39-2-612 (1982) (5 to 15 years); Tex.Penal Code
Ann. § 21.06 (1974) ($200 maximum fine); Utah Code Ann. § 76-5-403
(1978) (6-month maximum); Va.Code § 18.2-361 (1982) (5-year
maximum).

															[ Footnote 2/2 ]

															It was conceded at oral argument that, prior to the complaint
against respondent Hardwick, there had been no reported decision
involving prosecution for private homosexual sodomy under this
statute for several decades. See Thompson v. Aldredge, 187
Ga. 467, 200 S.E. 799 (1939). Moreover, the State has declined to
present the criminal charge against Hardwick to a grand jury, and
this is a suit for declaratory judgment brought by respondents
challenging the validity of the statute. The history of
nonenforcement suggests the moribund character today of laws
criminalizing this type of private, consensual conduct. Some 26
States have repealed similar statutes. But the constitutional
validity of the Georgia statute was put in issue by respondents,
and for the reasons stated by the Court, I cannot say that conduct
condemned for hundreds of years has now become a fundamental
right.

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, dissenting.

															This case is no more about "a fundamental right to engage in
homosexual sodomy," as the Court purports to declare, ante at 478 U. S. 191 ,
than Stanley v. Georgia, 394 U. S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U. S. 347 (1967), was about a fundamental right to place interstate bets from
a telephone booth. Rather, this case is about "the most
comprehensive of rights and the right most valued by civilized
men," namely, "the right to be let alone." Olmstead v. United
States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting).

															The statute at issue, Ga.Code Ann. § 16-6-2 (1984), denies
individuals the right to decide for themselves whether to engage in
particular forms of private, consensual sexual activity. The Court
concludes that § 16-6-2 is valid essentially because "the laws of .
. . many States . . . still make such conduct illegal and have done
so for a very long time." Ante at 478 U. S. 190 .
But the fact that the moral judgments expressed by statutes like §
16-6-2 may be

															"'natural and familiar . . . ought not to conclude our judgment
upon the question whether statutes embodying them conflict with the
Constitution of the United States.'" Roe v. Wade, 410 U. S. 113 , 410 U. S. 117 (1973), quoting Lochner v. New York, 198 U. S.
45 , 198 U. S. 76 (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe
that

															"[i]t is revolting to have no better reason for a rule of law
than that so it was laid down in the time of Henry IV. It is still
more revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind
imitation of the past."

															Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I
believe we must analyze respondent Hardwick's claim in the light of
the values that underlie the constitutional right to privacy. If
that right means anything, it means that, before Georgia can
prosecute its citizens for making choices about the most
intimate Page 478 U. S. 200 aspects of their lives, it must do more than assert that the
choice they have made is an " abominable crime not fit to be
named among Christians.'" Herring v. State, 119 Ga. 709,
721, 46 S.E. 876, 882 (1904). I In its haste to reverse the Court of Appeals and hold that the
Constitution does not "confe[r] a fundamental right upon
homosexuals to engage in sodomy," ante at 478 U. S. 190 ,
the Court relegates the actual statute being challenged to a
footnote, and ignores the procedural posture of the case before it.
A fair reading of the statute and of the complaint clearly reveals
that the majority has distorted the question this case
presents.

															First, the Court's almost obsessive focus on homosexual activity
is particularly hard to justify in light of the broad language
Georgia has used. Unlike the Court, the Georgia Legislature has not
proceeded on the assumption that homosexuals are so different from
other citizens that their lives may be controlled in a way that
would not be tolerated if it limited the choices of those other
citizens. Cf. ante at 478 U. S. 188 ,
n. 2. Rather, Georgia has provided 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."

															Ga.Code Ann. § 16-6-2(a) (1984). The sex or status of the
persons who engage in the act is irrelevant as a matter of state
law. In fact, to the extent I can discern a legislative purpose for
Georgia's 1968 enactment of § 16-6-2, that purpose seems to have
been to broaden the coverage of the law to reach heterosexual as
well as homosexual activity. [ Footnote
3/1 ] I therefore see no basis for the Page 478 U. S. 201 Court's decision to treat this case as an "as applied" challenge
to § 16-6-2, see ante at 478 U. S. 188 ,
n. 2, or for Georgia's attempt, both in its brief and at oral
argument, to defend § 16-6-2 solely on the grounds that it
prohibits homosexual activity. Michael Hardwick's standing may rest
in significant part on Georgia's apparent willingness to enforce
against homosexuals a law it seems not to have any desire to
enforce against heterosexuals. See Tr. of Oral Arg. 4-5; cf. 760 F.2d 1202, 1205-1206 (CA11 1985). But his claim
that § 16-6-2 involves an unconstitutional intrusion into his
privacy and his right of intimate association does not depend in
any way on his sexual orientation.

															Second, I disagree with the Court's refusal to consider whether
§ 16-6-2 runs afoul of the Eighth or Ninth Amendments or the Equal
Protection Clause of the Fourteenth Amendment. Ante at 478 U. S. 196 ,
n. 8. Respondent's complaint expressly invoked the Ninth Amendment, see App. 6, and he relied heavily before this Court on Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 484 (1965), which identifies that Amendment as one of the specific
constitutional provisions giving "life and substance" to our
understanding of privacy. See Brief for Respondent
Hardwick 10-12; Tr. of Oral Arg. 33. More importantly, the
procedural posture of the case requires that we affirm the Court of
Appeals' judgment if there is any ground on which
respondent may be entitled to relief. This case is before us on
petitioner's motion to dismiss for failure to state a claim,
Fed.Rule Civ.Proc. 12(b)(6). See App. 17. It is a
well-settled principle of law that

															"a complaint should not be dismissed merely because a
plaintiff's allegations do not support the particular legal theory
he advances, for the court is under a duty to examine the complaint
to determine if the allegations provide for relief on any possible
theory. Page 478 U. S. 202 Bramlet v. Wilson, 495 F.2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co., 484 F.2d 767, 773
(CA7 1973); Due v. Tallahassee Theatres, Inc., 333 F.2d
630, 631 (CA5 1964); United States v. Howell, 318 F.2d
162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1357, pp. 601-602 (1969); see also Conley v.
Gibson, 355 U. S. 41 , 355 U. S.
45 -46 (1957). Thus, even if respondent did not advance
claims based on the Eighth or Ninth Amendments, or on the Equal
Protection Clause, his complaint should not be dismissed if any of
those provisions could entitle him to relief. I need not reach
either the Eighth Amendment or the Equal Protection Clause issues,
because I believe that Hardwick has stated a cognizable claim that
§ 16-6-2 interferes with constitutionally protected interests in
privacy and freedom of intimate association. But neither the Eighth
Amendment nor the Equal Protection Clause is so clearly irrelevant
that a claim resting on either provision should be peremptorily
dismissed. [ Footnote 3/2 ] The
Court's cramped reading of the Page 478 U. S. 203 issue before it makes for a short opinion, but it does little to
make for a persuasive one." II "Our cases long have recognized that the Constitution embodies a
promise that a certain private sphere of individual liberty will be
kept largely beyond the reach of government." Thornburgh v. American College of Obstetricians &
Gynecologists, 476 U. S. 747 , 476 U. S. 772 (1986). In construing the right to privacy, the Court has proceeded
along two somewhat distinct, Page 478 U. S. 204 albeit complementary, lines. First, it has recognized a privacy
interest with reference to certain decisions that are properly for
the individual to make. E.g., Roe v. Wade, 410 U.
S. 113 (1973); Pierce v. Society of Sisters, 268 U. S. 510 (1925). Second, it has recognized a privacy interest with reference
to certain places without regard for the particular activities in
which the individuals who occupy them are engaged. E.g., United
States v. Karo, 468 U. S. 705 (1984); Payton v. New York, 445 U.
S. 573 (1980); Rios v. United States, 364 U. S. 253 (1960). The case before us implicates both the decisional and the
spatial aspects of the right to privacy. A The Court concludes today that none of our prior cases dealing
with various decisions that individuals are entitled to make free
of governmental interference "bears any resemblance to the claimed
constitutional right of homosexuals to engage in acts of sodomy
that is asserted in this case." Ante at 478 U. S.
190 -191. While it is true that these cases may be
characterized by their connection to protection of the family, see Roberts v. United States Jaycees, 468 U.
S. 609 , 468 U. S. 619 (1984), the Court's conclusion that they extend no further than
this boundary ignores the warning in Moore v. East
Cleveland, 431 U. S. 494 , 431 U. S. 501 (1977) (plurality opinion), against

															"clos[ing] our eyes to the basic reasons why certain rights
associated with the family have been accorded shelter under the
Fourteenth Amendment's Due Process Clause."

															We protect those rights not because they contribute, in some
direct and material way, to the general public welfare, but because
they form so central a part of an individual's life. "[T]he concept
of privacy embodies the moral fact that a person belongs to
himself, and not others nor to society as a whole.'" Thornburgh
v. American College of Obstetricians & Gynecologists, 476
U.S. at 476 U. S. 777 ,
n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6
Phil. & Pub.Affairs 288-289 (1977). And so we protect the
decision whether to Page 478 U. S. 205 marry precisely because marriage

															"is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects." Griswold v. Connecticut, 381 U.S. at 381 U. S. 486 .
We protect the decision whether to have a child because parenthood
alters so dramatically an individual's self-definition, not because
of demographic considerations or the Bible's command to be fruitful
and multiply. Cf. Thornburgh v. American College of
Obstetricians & Gynecologists, supra, at 476 U. S. 777 ,
n. 6 (STEVENS, J., concurring). And we protect the family because
it contributes so powerfully to the happiness of individuals, not
because of a preference for stereotypical households. Cf. Moore
v. East Cleveland, 431 U.S. at 431 U. S.
500 -506 (plurality opinion). The Court recognized in Roberts, 468 U.S. at 468 U. S. 619 ,
that the "ability independently to define one's identity that is
central to any concept of liberty" cannot truly be exercised in a
vacuum; we all depend on the "emotional enrichment from close ties
with others." Ibid. Only the most willful blindness could obscure the fact that
sexual intimacy is "a sensitive, key relationship of human
existence, central to family life, community welfare, and the
development of human personality," Paris Adult Theatre I v.
Slaton, 413 U. S. 49 , 413 U. S. 63 (1973); see also Carey v. Population Services
International, 431 U. S. 678 , 431 U. S. 685 (1977). The fact that individuals define themselves in a
significant way through their intimate sexual relationships with
others suggests, in a Nation as diverse as ours, that there may be
many "right" ways of conducting those relationships, and that much
of the richness of a relationship will come from the freedom an
individual has to choose the form and nature of these intensely
personal bonds. See Karst, The Freedom of Intimate
Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v.
Baird, 405 U. S. 438 , 405 U. S. 453 (1972); Roe v. Wade, 410 U.S. at 410 U. S.
153 .

															In a variety of circumstances, we have recognized that a
necessary corollary of giving individuals freedom to choose Page 478 U. S. 206 how to conduct their lives is acceptance of the fact that
different individuals will make different choices. For example, in
holding that the clearly important state interest in public
education should give way to a competing claim by the Amish to the
effect that extended formal schooling threatened their way of life,
the Court declared:

															"There can be no assumption that today's majority is 'right' and
the Amish and others like them are 'wrong.' A way of life that is
odd or even erratic, but interferes with no rights or interests of
others, is not to be condemned because it is different." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S.
223 -224 (1972). The Court claims that its decision today
merely refuses to recognize a fundamental right to engage in
homosexual sodomy; what the Court really has refused to recognize
is the fundamental interest all individuals have in controlling the
nature of their intimate associations with others. B The behavior for which Hardwick faces prosecution occurred in
his own home, a place to which the Fourth Amendment attaches
special significance. The Court's treatment of this aspect of the
case is symptomatic of its overall refusal to consider the broad
principles that have informed our treatment of privacy in specific
cases. Just as the right to privacy is more than the mere
aggregation of a number of entitlements to engage in specific
behavior, so too protecting the physical integrity of the home is
more than merely a means of protecting specific activities that
often take place there. Even when our understanding of the contours
of the right to privacy depends on "reference to a place,'" Katz v. United States, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring), "the essence of a Fourth Amendment violation is 'not the
breaking of [a person's] doors, and the rummaging of his drawers,'
but rather is 'the invasion of his indefeasible right of personal
security, personal liberty and private property.'" California v. Ciraolo, 476 U.
S. 207 , 476 U. S. 226 (1986) (POWELL, J., dissenting), Page 478 U. S. 207 quoting Boyd v. United States, 116 U.
S. 616 , 116 U. S. 630 (1886).

															The Court's interpretation of the pivotal case of Stanley v.
Georgia, 394 U. S. 557 (1969), is entirely unconvincing. Stanley held that
Georgia's undoubted power to punish the public distribution of
constitutionally unprotected, obscene material did not permit the
State to punish the private possession of such material. According
to the majority here, Stanley relied entirely on the First
Amendment, and thus, it is claimed, sheds no light on cases not
involving printed materials. Ante at 478 U. S. 195 .
But that is not what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth
Amendment's special protection for the individual in his home:

															"'The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations.'"

															" * * * *" "These are the rights that appellant is asserting in the case
before us. He is asserting the right to read or observe what he
pleases -- the right to satisfy his intellectual and emotional
needs in the privacy of his own home."

															394 U.S. at 394 U. S.
564 -565, quoting Olmstead v. United States, 277
U.S. at 277 U. S. 478 (Brandeis, J., dissenting).

															The central place that Stanley gives Justice Brandeis'
dissent in Olmstead, a case raising no First Amendment
claim, shows that Stanley rested as much on the Court's
understanding of the Fourth Amendment as it did on the First.
Indeed, in Paris Adult Theatre I v. Slaton, 413 U. S.
49 (1973), the Court suggested that reliance on the
Fourth Page 478 U. S. 208 Amendment not only supported the Court's outcome in Stanley but actually was necessary to it:

															"If obscene material unprotected by the First Amendment, in
itself, carried with it a 'penumbra' of constitutionally protected
privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the 'privacy of the home,'
which was hardly more than a reaffirmation that 'a man's home is
his castle.'"

															413 U.S. at 413 U. S. 66 .
"The right of the people to be secure in their . . . houses,"
expressly guaranteed by the Fourth Amendment, is perhaps the most
"textual" of the various constitutional provisions that inform our
understanding of the right to privacy, and thus I cannot agree with
the Court's statement that "[t]he right pressed upon us here has no
. . . support in the text of the Constitution," ante at 478 U. S. 195 .
Indeed, the right of an individual to conduct intimate
relationships in the intimacy of his or her own home seems to me to
be the heart of the Constitution's protection of privacy. III The Court's failure to comprehend the magnitude of the liberty
interests at stake in this case leads it to slight the question
whether petitioner, on behalf of the State, has justified Georgia's
infringement on these interests. I believe that neither of the two
general justifications for § 16-6-2 that petitioner has advanced
warrants dismissing respondent's challenge for failure to state a
claim.

															First, petitioner asserts that the acts made criminal by the
statute may have serious adverse consequences for "the general
public health and welfare," such as spreading communicable diseases
or fostering other criminal activity. Brief for Petitioner 37.
Inasmuch as this case was dismissed by the District Court on the
pleadings, it is not surprising that the record before us is barren
of any evidence to support petitioner's claim. [ Footnote 3/3 ] In light of the state of the record,
I see Page 478 U. S. 209 no justification for the Court's attempt to equate the private,
consensual sexual activity at issue here with the "possession in
the home of drugs, firearms, or stolen goods," ante at 478 U. S. 195 ,
to which Stanley refused to extend its protection. 394
U.S. at 394 U. S. 568 ,
n. 11. None of the behavior so mentioned in Stanley can
properly be viewed as "[v]ictimless," ante at 478 U. S. 195 :
drugs and weapons are inherently dangerous, see, e.g.,
McLaughlin v. United States, 476 U. S. 16 (1986), and for property to be "stolen," someone must have been
wrongfully deprived of it. Nothing in the record before the Court
provides any justification for finding the activity forbidden by §
16-6-2 to be physically dangerous, either to the persons engaged in
it or to others. [ Footnote 3/4 ] Page 478 U. S. 210 The core of petitioner's defense of § 16-6-2, however, is that
respondent and others who engage in the conduct prohibited by §
16-6-2 interfere with Georgia's exercise of the " right of the
Nation and of the States to maintain a decent society,'" Paris
Adult Theatre I v. Slaton, 413 U.S. at 413 U. S. 59 -60,
quoting Jacobellis v. Ohio, 378 U.
S. 184 , 378 U. S. 199 (1964) (Warren, C.J., dissenting). Essentially, petitioner argues,
and the Court agrees, that the fact that the acts described in §
16-6-2 "for hundreds of years, if not thousands, have been
uniformly condemned as immoral" is a sufficient reason to permit a
State to ban them today. Brief for Petitioner 19; see ante at 478 U. S. 190 , 478 U. S.
192 -194, 478 U. S.
196 . I cannot agree that either the length of time a majority has
held its convictions or the passions with which it defends them can
withdraw legislation from this Court's scrutiny. See, e.g., Roe
v. Wade, 410 U. S. 113 (1973); Loving v. Virginia, 388 U. S.
1 (1967); Brown v. Board of Education, 347 U. S. 483 (1954). [ Footnote 3/5 ] As Justice
Jackson wrote so eloquently Page 478 U. S. 211 for the Court in West Virginia Board of Education v.
Barnette, 319 U. S. 624 , 319 U. S.
641 -642 (1943),

															"we apply the limitations of the Constitution with no fear that
freedom to be intellectually and spiritually diverse, or even
contrary, will disintegrate the social organization. . . .
[F]reedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its
substance is the right to differ as to things that touch the heart
of the existing order." See also Karst, 89 Yale L.J. at 627. It is precisely
because the issue raised by this case touches the heart of what
makes individuals what they are that we should be especially
sensitive to the rights of those whose choices upset the
majority.

															The assertion that "traditional Judeo-Christian values
proscribe" the conduct involved, Brief for Petitioner 20, cannot
provide an adequate justification for § 16-6-2. That certain, but
by no means all, religious groups condemn the behavior at issue
gives the State no license to impose their judgments on the entire
citizenry. The legitimacy of secular legislation depends, instead,
on whether the State can advance some justification for its law
beyond its conformity to religious doctrine. See, e.g., McGowan
v. Maryland, 366 U. S. 420 , 366 U. S.
429 -453 (1961); Stone v. Graham, 449 U. S.
39 (1980). Thus, far from buttressing his case,
petitioner's invocation of Leviticus, Romans, St. Thomas Aquinas,
and sodomy's heretical status during the Middle Ages undermines his
suggestion that § 16-6-2 represents a legitimate use of secular
coercive power. [ Footnote 3/6 ] A
State can no more punish private behavior because Page 478 U. S. 212 of religious intolerance than it can punish such behavior
because of racial animus.

															"The Constitution cannot control such prejudices, but neither
can it tolerate them. Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly, give them
effect." Palmore v. Sidoti, 466 U. S. 429 , 466 U. S. 433 (1984). No matter how uncomfortable a certain group may make the
majority of this Court, we have held that "[m]ere public
intolerance or animosity cannot constitutionally justify the
deprivation of a person's physical liberty." O'Connor v.
Donaldson, 422 U. S. 563 , 422 U. S. 575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 534 (1973).

															Nor can § 16-6-2 be justified as a "morally neutral" exercise of
Georgia's power to "protect the public environment," Paris
Adult Theatre I, 413 U.S. at 413 U. S. 68 -69.
Certainly, some private behavior can affect the fabric of society
as a whole. Reasonable people may differ about whether particular
sexual acts are moral or immoral, but

															"we have ample evidence for believing that people will not
abandon morality, will not think any better of murder, cruelty and
dishonesty, merely because some private sexual practice which they
abominate is not punished by the law."

															H. L. A. Hart, Immorality and Treason, reprinted in The
Law as Literature 220, 225 (L. Blom-Cooper ed.1961). Petitioner and
the Court fail to see the difference between laws that protect
public sensibilities and those that enforce private morality.
Statutes banning Page 478 U. S. 213 public sexual activity are entirely consistent with protecting
the individual's liberty interest in decisions concerning sexual
relations: the same recognition that those decisions are intensely
private which justifies protecting them from governmental
interference can justify protecting individuals from unwilling
exposure to the sexual activities of others. But the mere fact that
intimate behavior may be punished when it takes place in public
cannot dictate how States can regulate intimate behavior that
occurs in intimate places. See Paris Adult Theatre I, 413
U.S. at 413 U. S. 66 , n.
13 ("marital intercourse on a street corner or a theater stage" can
be forbidden despite the constitutional protection identified in Griswold v. Connecticut, 381 U. S. 479 (1965)). [ Footnote 3/7 ]

															This case involves no real interference with the rights of
others, for the mere knowledge that other individuals do not adhere
to one's value system cannot be a legally cognizable interest, cf. Diamond v. Charles, 476 U. S. 54 , 476 U. S. 65 -66
(1986), let alone an interest that can justify invading the houses,
hearts, and minds of citizens who choose to live their lives
differently. IV It took but three years for the Court to see the error in its
analysis in Minersville School District
v. Gobitis , 310 U.S. Page 478 U. S. 214 586 (1940), and to recognize that the threat to national
cohesion posed by a refusal to salute the flag was vastly
outweighed by the threat to those same values posed by compelling
such a salute. See West Virginia Board of Education v.
Barnette, 319 U. S. 624 (1943). I can only hope that here, too, the Court soon will
reconsider its analysis and conclude that depriving individuals of
the right to choose for themselves how to conduct their intimate
relationships poses a far greater threat to the values most deeply
rooted in our Nation's history than tolerance of nonconformity
could ever do. Because I think the Court today betrays those
values, I dissent.

															[ Footnote 3/1 ]

															Until 1968, Georgia defined sodomy as "the carnal knowledge and
connection against the order of nature, by man with man, or in the
same unnatural manner with woman." Ga.Crim.Code § 26-5901 (1933).
In Thompson. v. Aldredge, 187 Ga. 467, 200 S.E. 799
(1939), the Georgia Supreme Court held that § 26-5901 did not
prohibit lesbian activity. And in Riley v. Garrett, 219
Ga. 345, 133 S.E.2d 367 (1963), the Georgia Supreme Court held that § 26-5901 did not
prohibit heterosexual cunnilingus. Georgia passed the act-specific
statute currently in force "perhaps in response to the restrictive
court decisions such as Riley, " Note, The Crimes Against
Nature, 16 J.Pub.L. 159, 167, n. 47 (1967).

															[ Footnote 3/2 ]

															In Robinson v. California, 370 U.
S. 660 (1962), the Court held that the Eighth Amendment
barred convicting a defendant due to his "status" as a narcotics
addict, since that condition was "apparently an illness which may
be contracted innocently or involuntarily." Id. at 370 U. S. 667 .
In Powell v. Texas, 392 U. S. 514 (1968), where the Court refused to extend Robinson to
punishment of public drunkenness by a chronic alcoholic, one of the
factors relied on by JUSTICE MARSHALL, in writing the plurality
opinion, was that Texas had not "attempted to regulate appellant's
behavior in the privacy of his own home." Id. at 392 U. S. 532 .
JUSTICE WHITE wrote separately:

															"Analysis of this difficult case is not advanced by
preoccupation with the label "condition." In Robinson, the
Court dealt with "a statute which makes the status' of narcotic
addiction a criminal offense. . . ." 370 U.S. at 370 U. S. 666 .
By precluding criminal conviction for such a "status," the Court
was dealing with a condition brought about by acts remote in time
from the application of the criminal sanctions contemplated, a
condition which was relatively permanent in duration, and a
condition of great magnitude and significance in terms of human
behavior and values. . . . If it were necessary to distinguish
between "acts" and "conditions" for purposes of the Eighth
Amendment, I would adhere to the concept of "condition" implicit in
the opinion in Robinson. . . . The proper subject of
inquiry is whether volitional acts brought about the "condition"
and whether those acts are sufficiently proximate to the
"condition" for it to be permissible to impose penal sanctions on
the "condition."" Id. at 392 U. S.
550 -551, n. 2.

															Despite historical views of homosexuality, it is no longer
viewed by mental health professionals as a "disease" or disorder. See Brief for American Psychological Association and
American Public Health Association as Amici Curiae 8-11.
But, obviously, neither is it simply a matter of deliberate
personal election. Homosexual orientation may well form part of the
very fiber of an individual's personality. Consequently, under
JUSTICE WHITE's analysis in Powell, the Eighth Amendment
may pose a constitutional barrier to sending an individual to
prison for acting on that attraction regardless of the
circumstances. An individual's ability to make constitutionally
protected "decisions concerning sexual relations," Carey v.
Population Services International, 431 U.
S. 678 , 431 U. S. 711 (1977) (POWELL, J., concurring in part and concurring in judgment),
is rendered empty indeed if he or she is given no real choice but a
life without any physical intimacy.

															With respect to the Equal Protection Clause's applicability to §
16-6-2, I note that Georgia's exclusive stress before this Court on
its interest in prosecuting homosexual activity despite the
gender-neutral terms of the statute may raise serious questions of
discriminatory enforcement, questions that cannot be disposed of
before this Court on a motion to dismiss. See Yick Wo v.
Hopkins, 118 U. S. 356 , 118 U. S.
373 -374 (1886). The legislature having decided that the
sex of the participants is irrelevant to the legality of the acts,
I do not see why the State can defend § 16-6-2 on the ground that
individuals singled out for prosecution are of the same sex as
their partners. Thus, under the circumstances of this case, a claim
under the Equal Protection Clause may well be available without
having to reach the more controversial question whether homosexuals
are a suspect class. See, e.g., Rowland v. Mad River Local
School District, 470 U. S. 1009 (1985) (BRENNAN, J., dissenting from denial of certiorari); Note,
The Constitutional Status of Sexual Orientation: Homosexuality as a
Suspect Classification, 98 Harv.L.Rev. 1285 (1985).

															[ Footnote 3/3 ]

															Even if a court faced with a challenge to § 16-6-2 were to apply
simple rational basis scrutiny to the statute, Georgia would be
required to show an actual connection between the forbidden acts
and the ill effects it seeks to prevent. The connection between the
acts prohibited by § 16-6-2 and the harms identified by petitioner
in his brief before this Court is a subject of hot dispute, hardly
amenable to dismissal under Federal Rule of Civil Procedure
12(b)(6). Compare, e.g., Brief for Petitioner 36-37 and
Brief for David Robinson, Jr., as Amicus Curiae 23-28, on
the one hand, with People v. Onofre, 51 N.Y.2d 476, 489,
415 N.E.2d 936, 941 (1980); Brief for the Attorney General of the
State of New York, joined by the Attorney General of the State of
California, as Amici Curiae 11-14; and Brief for
the American Psychological Association and American Public Health
Association as Amici Curiae 19-27, on the other.

															[ Footnote 3/4 ]

															Although I do not think it necessary to decide today issues that
are not even remotely before us, it does seem to me that a court
could find simple analytically sound distinctions between certain
private, consensual sexual conduct, on the one hand, and adultery
and incest (the only two vaguely specific "sexual crimes" to which
the majority points, ante at 478 U. S.
196 ), on the other. For example, marriage, in addition
to its spiritual aspects, is a civil contract that entitles the
contracting parties to a variety of governmentally provided
benefits. A State might define the contractual commitment necessary
to become eligible for these benefits to include a commitment of
fidelity, and then punish individuals for breaching that contract.
Moreover, a State might conclude that adultery is likely to injure
third persons, in particular, spouses and children of persons who
engage in extramarital affairs. With respect to incest, a court
might well agree with respondent that the nature of familial
relationships renders true consent to incestuous activity
sufficiently problematical that a blanket prohibition of such
activity is warranted. See Tr. of Oral Arg. 21-22.
Notably, the Court makes no effort to explain why it has chosen to
group private, consensual homosexual activity with adultery and
incest, rather than with private, consensual heterosexual activity
by unmarried persons or, indeed, with oral or anal sex within
marriage.

															[ Footnote 3/5 ]

															The parallel between Loving and this case is almost
uncanny. There, too, the State relied on a religious justification
for its law. Compare 388 U.S. at 388 U. S. 3 (quoting trial court's statement that "Almighty God created the
races white, black, yellow, malay and red, and he placed them on
separate continents. . . . The fact that he separated the races
shows that he did not intend for the races to mix"), with Brief for Petitioner 20-21 (relying on the Old and New Testaments
and the writings of St. Thomas Aquinas to show that "traditional
Judeo-Christian values proscribe such conduct"). There, too,
defenders of the challenged statute relied heavily on the fact
that, when the Fourteenth Amendment was ratified, most of the
States had similar prohibitions. Compare Brief for
Appellee in Loving v. Virginia, O.T. 1966, No. 395, pp.
28-29, with ante at 478 U. S.
192 -194, and n. 6. There, too, at the time the case came
before the Court, many of the States still had criminal statutes
concerning the conduct at issue. Compare 388 U.S. at 388 U. S. 6 , n. 5
(noting that 16 States still outlawed interracial marriage), with ante at 478 U. S.
193 -194 (noting that 24 States and the District of
Columbia have sodomy statutes). Yet the Court held not only that
the invidious racism of Virginia's law violated the Equal
Protection Clause, see 388 U.S. at 388 U. S. 7 -12,
but also that the law deprived the Lovings of due process by
denying them the "freedom of choice to marry" that had "long been
recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men." Id. at 388 U. S. 12 .

															[ Footnote 3/6 ]

															The theological nature of the origin of Anglo-American
antisodomy statutes is patent. It was not until 1533 that sodomy
was made a secular offense in England. 25 Hen. VIII, ch. 6. Until
that time, the offense was, in Sir James Stephen's words, "merely
ecclesiastical." 2 J. Stephen, A History of the Criminal Law of
England 429-430 (1883). Pollock and Maitland similarly observed
that "[t]he crime against nature . . . was so closely connected
with heresy that the vulgar had but one name for both." 2 F.
Pollock & F. Maitland, The History of English Law 554 (1895).
The transfer of jurisdiction over prosecutions for sodomy to the
secular courts seems primarily due to the alteration of
ecclesiastical jurisdiction attendant on England's break with the
Roman Catholic Church, rather than to any new understanding of the
sovereign's interest in preventing or punishing the behavior
involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed.
1797).

															[ Footnote 3/7 ]

															At oral argument, a suggestion appeared that, while the Fourth
Amendment's special protection of the home might prevent the State
from enforcing § 16-6-2 against individuals who engage in
consensual sexual activity there, that protection would not make
the statute invalid. See Tr. of Oral Arg. 10-11. The
suggestion misses the point entirely. If the law is not invalid,
then the police can invade the home to enforce it, provided, of
course, that they obtain a determination of probable cause from a
neutral magistrate. One of the reasons for the Court's holding in Griswold v. Connecticut, 381 U. S. 479 (1965), was precisely the possibility, and repugnancy, of
permitting searches to obtain evidence regarding the use of
contraceptives. Id. at 381 U. S.
485 -486. Permitting the kinds of searches that might be
necessary to obtain evidence of the sexual activity banned by §
16-6-2 seems no less intrusive or repugnant. Cf. Winston v.
Lee, 470 U. S. 753 (1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263,
1274 (CA7 1983).

															JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.

															Like the statute that is challenged in this case, [ Footnote 4/1 ] the rationale of the Court's
opinion applies equally to the prohibited conduct regardless of
whether the parties who engage in it are married or unmarried, or
are of the same or different sexes. [ Footnote 4/2 ] Sodomy was condemned as an odious and
sinful type of behavior during the formative period of the common
law. [ Footnote 4/3 ] Page 478 U. S. 215 That condemnation was equally damning for heterosexual and
homosexual sodomy. [ Footnote 4/4 ]
Moreover, it provided no special exemption for married couples.
[ Footnote 4/5 ] The license to
cohabit and to produce legitimate offspring simply did not include
any permission to engage in sexual conduct that was considered a
"crime against nature."

															The history of the Georgia statute before us clearly reveals
this traditional prohibition of heterosexual, as well as
homosexual, sodomy. [ Footnote 4/6 ]
Indeed, at one point in the 20th century, Georgia's law was
construed to permit certain sexual conduct between homosexual women
even though such conduct was prohibited between heterosexuals.
[ Footnote 4/7 ] The history of the
statutes cited by the majority as proof for the proposition that
sodomy is not constitutionally protected, ante at 478 U. S.
192 -194, Page 478 U. S. 216 and nn. 5 and 6, similarly reveals a prohibition on
heterosexual, as well as homosexual, sodomy. [ Footnote 4/8 ]

															Because the Georgia statute expresses the traditional view that
sodomy is an immoral kind of conduct regardless of the identity of
the persons who engage in it, I believe that a proper analysis of
its constitutionality requires consideration of two questions:
first, may a State totally prohibit the described conduct by means
of a neutral law applying without exception to all persons subject
to its jurisdiction? If not, may the State save the statute by
announcing that it will only enforce the law against homosexuals?
The two questions merit separate discussion. I Our prior cases make two propositions abundantly clear. First,
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. [ Footnote
4/9 ] Second, 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. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, this protection extends to intimate choices by
unmarried, as well as married, persons. Carey v. Population
Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U.
S. 438 (1972). Page 478 U. S. 217 In consideration of claims of this kind, the Court has
emphasized the individual interest in privacy, but its decisions
have actually been animated by an even more fundamental concern. As
I wrote some years ago:

															"These cases do not deal with the individual's interest in
protection from unwarranted public attention, comment, or
exploitation. They deal, rather, with the individual's right to
make certain unusually important decisions that will affect his
own, or his family's, destiny. The Court has referred to such
decisions as implicating 'basic values,' as being 'fundamental,'
and as being dignified by history and tradition. The character of
the Court's language in these cases brings to mind the origins of
the American heritage of freedom -- the abiding interest in
individual liberty that makes certain state intrusions on the
citizen's right to decide how he will live his own life
intolerable. Guided by history, our tradition of respect for the
dignity of individual choice in matters of conscience and the
restraints implicit in the federal system, federal judges have
accepted the responsibility for recognition and protection of these
rights in appropriate cases." Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716,
719-720 (CA7 1975) (footnotes omitted), cert. denied, 425
U.S. 916 (1976).

															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 Page 478 U. S. 218 State -- to decide. [ Footnote
4/10 ] 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.

															Paradoxical as it may seem, our prior cases thus establish that
a State may not prohibit sodomy within "the sacred precincts of
marital bedrooms," Griswold, 381 U.S. at 381 U. S. 485 ,
or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U.S. at 405 U. S. 453 .
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. II If the Georgia statute cannot be enforced as it is written -- if
the conduct it seeks to prohibit is a protected form of liberty for
the vast majority of Georgia's citizens -- the State must assume
the burden of justifying a selective application of its law. Either
the persons to whom Georgia seeks to apply its statute do not have
the same interest in "liberty" that others have, or there must be a
reason why the State may be permitted to apply a generally
applicable law to certain persons that it does not apply to
others.

															The first possibility is plainly unacceptable. Although the
meaning of the principle that "all men are created equal" is not
always clear, it surely must mean that every free citizen has the
same interest in "liberty" that the members of the majority share.
From the standpoint of the individual, the homosexual and the
heterosexual have the same interest in deciding how he will live
his own life, and, more narrowly, how he will conduct himself in
his personal and voluntary Page 478 U. S. 219 associations with his companions. State intrusion into the
private conduct of either is equally burdensome.

															The second possibility is similarly unacceptable. A policy of
selective application must be supported by a neutral and legitimate
interest -- something more substantial than a habitual dislike for,
or ignorance about, the disfavored group. Neither the State nor the
Court has identified any such interest in this case. The Court has
posited as a justification for the Georgia statute "the presumed
belief of a majority of the electorate in Georgia that homosexual
sodomy is immoral and unacceptable." Ante at 478 U. S. 196 .
But the Georgia electorate has expressed no such belief -- instead,
its representatives enacted a law that presumably reflects the
belief that all sodomy is immoral and unacceptable. Unless
the Court is prepared to conclude that such a law is
constitutional, it may not rely on the work product of the Georgia
Legislature to support its holding. For the Georgia statute does
not single out homosexuals as a separate class meriting special
disfavored treatment.

															Nor, indeed, does the Georgia prosecutor even believe that all
homosexuals who violate this statute should be punished. This
conclusion is evident from the fact that the respondent in this
very case has formally acknowledged in his complaint and in court
that he has engaged, and intends to continue to engage, in the
prohibited conduct, yet the State has elected not to process
criminal charges against him. As JUSTICE POWELL points out,
moreover, Georgia's prohibition on private, consensual sodomy has
not been enforced for decades. [ Footnote 4/11 ] The record of nonenforcement, in this
case and in the last several decades, belies the Attorney General's
representations Page 478 U. S. 220 about the importance of the State's selective application of its
generally applicable law. [ Footnote
4/12 ]

															Both the Georgia statute and the Georgia prosecutor thus
completely fail to provide the Court with any support for the
conclusion that homosexual sodomy, simpliciter, is
considered unacceptable conduct in that State, and that the burden
of justifying a selective application of the generally applicable
law has been met. III The Court orders the dismissal of respondent's complaint even
though the State's statute prohibits all sodomy; even though that
prohibition is concededly unconstitutional with respect to
heterosexuals; and even though the State's post hoc explanations for selective application are belied by the State's
own actions. At the very least, I think it clear at this early
stage of the litigation that respondent has alleged a
constitutional claim sufficient to withstand a motion to dismiss.
[ Footnote 4/13 ]

															I respectfully dissent.

															[ Footnote 4/1 ] See Ga.Code Ann. § 16-6-2(a) (1984) ("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").

															[ Footnote 4/2 ]

															The Court states that 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." Ante at 478 U. S. 190 .
In reality, however, it is the indiscriminate prohibition of
sodomy, heterosexual as well as homosexual, that has been present
"for a very long time." See nn. 478
U.S. 186 fn4/3|>3, 478
U.S. 186 fn4/4|>4, and 478
U.S. 186 fn4/5|>5, infra. Moreover, the reasoning
the Court employs would provide the same support for the statute as
it is written as it does for the statute as it is narrowly
construed by the Court.

															[ Footnote 4/3 ] See, e.g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed.
1787) ("All unnatural carnal copulations, whether with man or
beast, seem to come under the notion of sodomy, which was felony by
the ancient common law, and punished, according to some authors,
with burning; according to others, with burying alive"); 4 W.
Blackstone, Commentaries *215 (discussing "the infamous crime
against nature, committed either with man or beast; a crime
which ought to be strictly and impartially proved, and then as
strictly and impartially punished").

															[ Footnote 4/4 ] See 1 E. East, Pleas of the Crown 480 (1803) ("This
offence, concerning which the least notice is the best, consists in
a carnal knowledge committed against the order of nature by man
with man, or in the same unnatural manner with woman, or by man or
woman in any manner with beast"); J. Hawley & M. McGregor, The
Criminal Law 287 (3d ed. 1899) ("Sodomy is the carnal knowledge
against the order of nature by two persons with each other, or of a
human being with a beast. . . . The offense may be committed
between a man and a woman, or between two male persons, or between
a man or a woman and a beast").

															[ Footnote 4/5 ] See J. May, The Law of Crimes § 203 (2d ed. 1893)
("Sodomy, otherwise called buggery, bestiality, and the crime
against nature, is the unnatural copulation of two persons with
each other, or of a human being with a beast. . . . It may be
committed by a man with a man, by a man with a beast, or by a woman
with a beast, or by a man with a woman -- his wife, in which case,
if she consent, she is an accomplice").

															[ Footnote 4/6 ]

															The predecessor of the current Georgia statute provided:

															"Sodomy is the carnal knowledge and connection against the order
of nature, by man with man, or in the same unnatural manner with
woman."

															Ga.Code, Tit. 1, Pt. 4, § 4251 (1861). This prohibition of
heterosexual sodomy was not purely hortatory. See, e.g., Comer
v. State, 21 Ga.App. 306, 94 S.E. 314 (1917) (affirming
prosecution for consensual heterosexual sodomy).

															[ Footnote 4/7 ] See Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799
(1939).

															[ Footnote 4/8 ]

															A review of the statutes cited by the majority discloses that,
in 1791, in 1868, and today, the vast majority of sodomy statutes
do not differentiate between homosexual and heterosexual
sodomy.

															[ Footnote 4/9 ] See Loving v. Virginia, 388 U. S.
1 (1967). Interestingly, miscegenation was once treated
as a crime similar to sodomy. See Hawley & McGregor,
The Criminal Law, at 287 (discussing crime of sodomy); id. at 288 (discussing crime of miscegenation).

															[ Footnote 4/10 ]

															Indeed, the Georgia Attorney General concedes that Georgia's
statute would be unconstitutional if applied to a married couple. See Tr. of Oral Arg. 8 (stating that application of the
statute to a married couple "would be unconstitutional" because of
the "right of marital privacy as identified by the Court in Griswold "). Significantly, Georgia passed the current
statute three years after the Court's decision in Griswold. [ Footnote 4/11 ] Ante at 478 U. S. 198 ,
n. 2 (POWELL, J., concurring). See also Tr. of Oral Arg.
4-5 (argument of Georgia Attorney General) (noting, in response to
question about prosecution "where the activity took place in a
private residence," the "last case I can recall was back in the
1930's or 40's").

															[ Footnote 4/12 ]

															It is, of course, possible to argue that a statute has a purely
symbolic role. Cf. Carey v. Population Services
International, 431 U. S. 678 , 431 U. S. 715 ,
n. 3 (1977) (STEVENS, J., concurring in part and concurring in
judgment) ("The fact that the State admittedly has never brought a
prosecution under the statute . . . is consistent with appellants'
position that the purpose of the statute is merely symbolic").
Since the Georgia Attorney General does not even defend the statute
as written, however, see 478
U.S. 186 fn4/10|>n. 10, supra, the State cannot
possibly rest on the notion that the statute may be defended for
its symbolic message.

															[ Footnote 4/13 ]

															Indeed, at this stage, it appears that the statute
indiscriminately authorizes a policy of selective prosecution that
is neither limited to the class of homosexual persons nor embraces
all persons in that class, but rather applies to those who may be
arbitrarily selected by the prosecutor for reasons that are not
revealed either in the record of this case or in the text of the
statute. If that is true, although the text of the statute is clear
enough, its true meaning may be "so intolerably vague that
evenhanded enforcement of the law is a virtual impossibility." Marks v. United States, 430 U. S. 188 , 430 U. S. 198 (1977) (STEVENS, J., concurring in part and dissenting in
part).

Summary: In Bowers v. Hardwick (1986), the U.S. Supreme Court upheld the constitutionality of a Georgia statute criminalizing sodomy, committed by consenting adults in private. The Court held that there is no fundamental right for homosexuals to engage in sodomy and that sodomy laws do not violate privacy rights, even when the act occurs in the home. The Court also argued that the majority's belief in the immorality of sodomy is a sufficient rationale for such laws and that there is a long history of sodomy being criminalized. This decision was later overturned in Lawrence v. Texas (2003).