JUDGES: 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. 196, and
POWELL, J., post, p. 197, filed concurring opinions. BLACKMUN, J., filed a
dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post,
p. 199. STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 214.
OPINION:
[*187]
[***144]
[**2842] JUSTICE WHITE delivered the opinion of the Court.
In August 1982, respondent Hardwick (hereafter respondent) was charged with
violating the Georgia statute criminalizing
[*188]
sodomy n1 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 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. . . ."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent then brought suit in the Federal District Court, challenging
the constitutionality of the statute insofar as it criminalized consensual
sodomy. n2 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. . . .
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 John and Mary Doe were also plaintiffs in the action . . . [but t]he only claim properly before the Court
. . . 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.
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[*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. . . . [Here Justice White
reviewed a number of these precedents, including
Griswold v. Connecticut and
Roe v. Wade.]
Accepting the decisions in these cases
. . . , we
think it evident that none of the rights announced in those cases bears any
resemblance to the
[*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.
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 (1937), it was said that this category includes those fundamental liberties that are
"implicit in the concept of ordered liberty," such that
"neither
[*192] liberty nor justice would exist if [they] were sacrificed." A different description of fundamental liberties appeared in
Moore v. East Cleveland (1977), where they are characterized as those liberties that
are
"deeply
rooted in this Nation's history and tradition."
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. 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. n5 In 1868, when the Fourteenth Amendment was [*193] ratified, all but 5 of the 37 States in
the Union had criminal sodomy laws. n6 In fact, until 1961, n7
all 50 States outlawed sodomy, and today, 24 States and the
District of Columbia [*194] continue to provide criminal penalties for
sodomy performed in private and between consenting adults. 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 [Here, Justice White listed the criminal
sodomy laws that were in effect in the 13 states in 1791]
n6 [And here,
he did the same for the 38 state and territorial sodomy statutes in effect in
1868]
n7 In 1961, Illinois adopted the American Law Institute's Model
Penal Code, which decriminalized adult, consensual, private, sexual conduct.
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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
[*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 (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."
Stanley did protect conduct that would not have been protected outside the home, and
it partially prevented
[***149] 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 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
[*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 [**2847] the
sodomy laws of some 25 States should be invalidated on this basis.
Accordingly, the judgment of the Court of Appeals is
Reversed.
CONCUR: 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, 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 Judeao-Christian moral and ethical standards.
Homosexual
sodomy was a capital crime under Roman law. 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. 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." 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
[*198] felony comparable in terms of the possible sentence imposed to
serious felonies such as aggravated battery, first-degree arson, and robbery.
In this case, however, respondent has not been tried, much less convicted and
sentenced. n2 Moreover, respondent
has not raised the
Eighth Amendment issue below. For these reasons this constitutional argument is not before us.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 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. 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
DISSENT:
[*199] 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, than
Stanley v. Georgia (1969), was about a
fundamental right to watch obscene movies, or
Katz v. United States (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."
The statute at issue 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." 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.'" Like Justice Holmes, I believe that
"[it] 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." 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
[*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.'"
I
In its haste to reverse the Court of Appeals and hold that the Constitution
does not
"[confer] a
fundamental right upon
homosexuals to engage in
sodomy," the Court relegates the actual statute being challenged to a footnote
and ignores the procedural posture of the case before
[**2849] it. A fair reading of the statute and of the
[***152] 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 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. n1 I therefore see no basis for the
[*201] Court's decision to treat this case as an
"as applied" challenge to
§ 16-6-2, see
ante, at 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 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." In
Thompson v. Aldredge (1939), the Georgia Supreme Court held that
§ 26-5901 did not prohibit lesbian activity. And in
Riley v. Garrett (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."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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. Respondent's complaint expressly invoked the Ninth Amendment,
and he relied heavily before this Court on
Griswold v. Connecticut, 381 U.S. 479, 484 (1965), which
identifies that Amendment as one of the specific constitutional provisions
giving "life and substance" to our understanding of privacy. . . . [E]ven
if respondent did not advance claims based on the Eighth or Ninth Amendments, or
on the [**2850] 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. n2 The Court's cramped reading of the
[*203] issue before it makes for a short opinion, but it does little to make for a
persuasive one.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 In
Robinson v. California (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." 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." . . .
Despite historical views of homosexuality, it is no longer viewed by
mental health professionals as a "disease" or disorder. 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, . . . 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" 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 . . . , 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. 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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, 772 (1986). In construing the
right to privacy, the Court has proceeded along two somewhat distinct,
[*204] albeit complementary, lines. First, it has recognized a
privacy interest with reference to certain
decisions
[**2851] that are properly for the individual to make.
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.
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 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, 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, 501 (1977) (plurality opinion), against
"[closing] 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.
"[The] 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 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil.
&
[***155] Pub. Affairs 288-289 (1977). And so we protect the decision whether to
[*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 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 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. The Court recognized in
Roberts, 468 U.S., at 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."
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." 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 [**2852] personal
bonds.
In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose
[*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, 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.
[***156] 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 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.'"
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 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."
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 (1973), the Court suggested that reliance on the
Fourth
[*208] Amendment not only supported the Court's outcome in
Stanley but actually was
[***157]
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.'"
"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
"[the] right pressed upon us here has no . . . support in the text of the
Constitution." 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. n3 In light of the state
of the record, I see
[*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 195, to which
Stanley refused to extend its protection.
394 U.S., at 568, n. 11. None of the behavior so mentioned in
Stanley can properly be viewed as
"[victimless],"
ante, at 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
[***158] physically dangerous, either to the persons engaged in it or to others. n4
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n3 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 . . .
n4 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), 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.
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.
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[*210]
[**2854] 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 59-60, quoting
Jacobellis v. Ohio, 378 U.S. 184, 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 190, 192-194, 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). n5 As Justice Jackson wrote so
[***159] eloquently
[*211] for the Court in
West Virginia Board of Education v. Barnette, 319 U.S. 624, 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. . . . [Freedom] 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.
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n5 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 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. There, too, at the time the case came before the Court,
many of the States still had criminal statutes concerning the conduct at issue. Yet the Court held, not only that the invidious racism of
Virginia's law violated the
Equal Protection Clause, 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."
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The assertion that
"traditional Judeo-Christian values proscribe" the conduct involved, Brief for Petitioner 20, cannot provide an adequate
justification for
§ 16-6-2.
[**2855] 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, 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. n6 A State can
no more punish private behavior because
[*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." No matter how uncomfortable a certain group may make the majority of this
Court, we have held that
"[mere] public intolerance or animosity cannot constitutionally justify the
deprivation of a person's physical liberty." See also
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432
[***160] (1985);
United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 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."
Pollock and Maitland similarly observed that "[the] crime against nature . . .
was so closely connected with heresy that the vulgar had but one name for both."
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.
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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 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
[*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 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)).
[**2856] 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, 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. 586 (1940),
[*214] and to recognize that the threat to national cohesion posed
[***161] 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.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join,
dissenting.
Like the statute that is challenged in this case, n1 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. n2
Sodomy was condemned as an odious and sinful type of behavior during the formative
period of the
common law. n3
[*215] That condemnation was equally damning for
heterosexual and
homosexual
sodomy. n4 Moreover, it
[**2857] provided no special exemption for
married couples. n5 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."
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n2 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." In reality, however, it is the indiscriminate prohibition of
sodomy,
heterosexual as well as
homosexual, that has been present
"for a very long time." 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.
n3 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 antient
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").
n4 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").
n5 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").
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The history of the Georgia statute before us clearly reveals this traditional
[***162] prohibition of
heterosexual, as well as
homosexual,
sodomy. n6 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. The history of the statutes cited by the majority as proof for the
proposition that
sodomy is not constitutionally protected similarly reveals a prohibition on
heterosexual, as well as
homosexual,
sodomy. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 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.
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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.
n9 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.
[*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. [**2858] They deal, rather, with the individual's [***163] 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."
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
[*218] State -- to decide. n10 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.
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n10 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.
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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 485, or, indeed, between unmarried
heterosexual
adults.
Eisenstadt, 405 U.S., at 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
[***164] 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
[*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
[**2859] 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 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. n11 The record of nonenforcement, in this
case and in the last several decades, belies the Attorney General's
representations
[*220] about the importance of the State's
selective application of its generally applicable law. n12
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n11
Ante, at 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").
n12 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, 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 n. 10,
supra, the State cannot possibly rest on the notion that the statute may be defended
for its symbolic message.
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Both the Georgia statute and the Georgia prosecutor thus completely fail to
provide the Court with any support for the conclusion that
homosexual
[***165]
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. n13
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 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, 198 (1977) (STEVENS, J., concurring in part and dissenting in part).
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I respectfully dissent.