Bowers v. Hardwick
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Bowers v. Hardwick (1986)

  I.  Facts
On April 3, 1982 an officer was allowed into the house of Michael Hardwick for a legitimate purpose.  The officer found Hardwick committing sodomy and arrested him for violating the Georgia anti-sodomy statute.  The punishment for sodomy under the statute is 1-20 years in prison. 
            The DA decided not to present the matter to the grand jury unless further evidence was found.  Hardwick brought the suit in Federal District Court.

 II.  Issue
            Justice White, writing for the majority, frames the question in the context of legal positivism.  He rules narrowly, viewing Hartwick's challenge to the GA statute as applied to consensual homosexual sodomy only.  The question then becomes, whether the Constitution confers a fundamental right upon gay people to engage in sodomy.

 III. Holding  No.

 IV.  Reasoning (White)
            A.  White begins by framing the question in terms of legal positivism. 
            B.  He differentiates previous 14th Amendment Due Process Clause cases from this case.  He draws the line and says that privacy rights do not reach this far.
            C.  Precedent is used to explain "ordered liberty."  Both liberty and justice require order.
            D.  Historical argument: there is a long and strong history of the criminalization of sodomy.  Therefore, the Court will not take a more expansive view, nor will it make things up in the Due Process Clause.  The job of the Judiciary is not to legislate.
            E.  Court distinguishes Stanley (watching porn at home case) from Bowers because Stanley was based in the 1st Amendment grounds
            F.  Consequential argument: making "in the home" location based jurisdiction restrictions is a slippery slope and has tricky implications for other bad stuff (sex crimes) that could happen at home.  This would be even more complicated because it would have the result of making the courts rule on morals to distinguish types of sexual acts at home. The courts cannot rule on morals, if for no other reason, because logistically it would clog up the judicial system.

 V.  Concurring
            A.  Burger- He agrees with the opinion and underscores the importance of doctrinal precedent and of "moral teachings" of Judeo-Christian culture.
            B.  Powell- Agrees with the Court's "no fundamental right" ruling.  States that the punishment of 20 years in prison may be cruel and unusual - in conflict with the 8th Amendment.

VI.  Dissenting
            A.  Blackmun (with Brennan, Marshall, Stevens)
                        1.  Stanley and Kaz were precedent for "the right to be left alone."  Later goes on to say that these cases were in fact grounded in privacy and explicitly not anchored in the 1st amendment.
                        2.  Rejects the Court using King Henry IV as legitimate precedent, and cites Holmes in doing so.
                        3.  Asks a different question: GA statute's definition of sodomy does not discriminate based on sex/status of person doing it.  Hartwick being gay does not change his privacy rights.  Privacy is for the location, not for the activity
                        4.  Consequential: privacy is important because of its importance to the life of an individual.  People define themselves through sexual relations.  Ethos: we are a diverse nation, therefore there will be diverse sexual relationships.
                        5.  Structural: The home is viewed by the constitution as unique (AMD 4 -search and seizure), therefore it makes sense to have that be connected to privacy.
                        6.  Ethos: a question of liberty---no justification for the general welfare claim, or for judeo Christian values, because things like race/religion discrimination are also no longer legitimate. 
                        7.  Structure: Defends choice of marriage, choice of having a gay relationship.
             B.  Stevens (Brennan, Marshall)
                        1.  Re defines what the statute is about: sodomy is not about marriage or gender.  Griswold already broke that pattern of reasoning.
                        2.  Historical argument - Georgia statute historically did not discriminate against gays.
                        3.  Answers the questions---can the state totally prohibit this conduct by all people?  Can the Court save the statute by applying it just to homosexuals?  The answer is an ethos argument — we value liberty.  Society has the right to encourage values and behaviors insofar as it does not impose its will on others.  All people have equal interests in liberty; therefore the statue must be applied equally.  The Court cannot single out gays, if the statute does not single out gays.

VII. Significance
Anti-gay sodomy laws are illegal.  Gay sodomy is not a fundamental right in the constitution.  (Case to be overturned by Lawrence v. Texas in 2003).

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