Bowers v. Hardwick (1986) is a U.S. Supreme Court case in which the Court considered whether a person had a Constitutional right to engage in homosexual sex. In this case, Georgia passed a statute criminalizing both oral and anal sex. Hardwick–a homosexual man–was arrested after police observed consensual sex between Hardwick and another adult man in Hardwick’s home. Hardwick was charged with violating the statute, though the District Attorney declined to pursue the case. Hardwick then sued Georgia’s attorney general in a federal district court, arguing that the statute was unconstitutional and that–as a homosexual man–he was at risk of future arrest if the statute remained in effect.
Hardwick’s suit was dismissed for failure to state a claim by the district court. The Court of Appeals for the Eleventh Circuit reversed, finding that the statute did represent an unconstitutional infringement on Hardwick’s rights. The State of Georgia appealed, and the Supreme Court granted a writ of certiorari.
The Court considered that homosexual sodomy was criminal under the common law at the nation’s founding, as well as in most states at the ratification of the Fourteenth Amendment. At one point, all 50 states had laws against homosexual sodomy, and at the time of Bowers, almost half of the states and the District of Columbia still outlawed the practice. As such, the Court determined that homosexual sodomy was not “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” Thus, the right to privacy did not extend to homosexual sodomy as it was not a fundamental right. Under this reasoning, the statute need only pass the rational basis test of scrutiny, so the Court of Appeals’ decision was reversed.
The decision in Bowers was narrow, with five justices voting to uphold the law and four voting against it. The Supreme Court would directly overrule the decision in 2003 in the case of Lawrence v. Texas.
[Last updated in June of 2021 by the Wex Definitions Team]