Bowers v. Hardwick, 478 U.S. 186 (1986)

When does the mere description of one’s action not impinge the basic interest of any other person? This traditional Millian notion of a self-regarding or private action has had the most difficult time in the American courts. Although the U.S. Supreme Court did say in Roe v. Wade, 410 U.S. 113 (1973), that a woman’s right to obtain an abortion was such an action, at least within the first two trimesters (with the woman’s physician playing a significant decision-making role only in the second trimester), in Bowers v. Hardwick the Court let stand a Georgia sodomy statute that made certain adult consensual homosexual sex acts a crime, even if performed behind closed doors in the home. The effect of the case was to hold outside constitutional privacy protection matters of same-sex sexual intimacy among consenting adults for the reason that they simply were not thought to be private.
The case involved the unchallenged legal entry of a Georgia police officer into the home of Michel Hardwick on the evening of August 3, 1982. There the officer found Hardwick and another adult male engaged in an act of oral sodomy in Hard-wick’s bedroom. Hardwick was subsequently charged with violating O.G.C.A. 616-6-2 (1984), a Georgia criminal statute that made it a crime to engage in sodomy with another person (male or female), even in one’s home, punishable by not less than 1 and up to 20 years in prison. The Georgia statute stated that “[a] person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” The statute did not distinguish between heterosexual and homosexual sodomy. The case went to the U.S. Supreme Court, where the statute was challenged on Fourteenth Amendment substantive due process grounds, which in this case were privacy grounds.
The Supreme Court, in upholding the statute, distinguished that portion of the statute pertaining to homosexual sodomy from the remainder of the act, which addressed heterosexual sodomy. Specifically, the Court, referring to the portion of the statute making homosexual sodomy a crime, ruled, per Justice White, that its prior case law did not put adult consensual homosexual sodomy in the home beyond state proscription. The basis of the Court’s rationale was that “[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other [was] demonstrated.” Nor did the Court’s prior privacy cases protect any form of private sexual conduct between consenting adults. In effect, the Court said that the privacy of an act is determined by whether such a connection is shown. Absent such a demonstration, no privacy is at stake.
It is important to understand that the Court did not find that the state had a more compelling interest than upholding privacy to protect in this case; rather, the Court saw no privacy interest at all. And although sodomy statutes are seldom prosecuted, the effect of the Bowers holding was an unintended justification of state laws that discriminated on the basis of sexual orientation in matters of employment, housing, public accommodations, parenting, marriage, foster care, and military service. Here the rationale came to be that if the underlying conduct that defined the discriminated class could be made criminal, little could be said that would persuade courts that the class might deserve a heightened degree of protection from discrimination.
When the Supreme Court decided Bowers, no American privacy case was directly on point in dealing with homosexual sodomy. However, the American Law Institute, a think tank of legal scholars, had by this time put forth a Model Penal Code, which a number of states had already adopted, that removed same-sex sodomy from the list of crimes. The Court’s failure to assign credence to the code’s adoption combined with the breadth afforded to privacy protection in several of its own prior decisions makes the Court’s proffered rationale in Bowers untenable. Indeed, it suggests a deep-seated cultural prejudice against homosexuals on the part of some of the justices who participated in the decision. This was particularly clear from Justice Burger’s concurring opinion: “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 the Judeo-Christian moral and ethical standards.”
Interestingly, the set of privacy principles that could have decided this case— and no doubt would have, had the prejudices implicit in the above-quoted passages not existed—have their foundation in three different areas of the law: Fourth Amendment, tort, and constitutional liberty.
In the Fourth Amendment, the privacy principle protects persons, information, and places against unreasonable searches and seizures. What makes a search unreasonable is the presence of a reasonable expectation of privacy coupled with the absence of a search warrant based on probable cause that a crime was about to take place. This right to privacy of information and protection of places like the home was specifically aimed at preventing the government’s pursuit of a criminal investigation from becoming a mere fishing expedition for possible criminal activity. A perhaps antiquated example of this rule would be the person in a glass-walled telephone booth who has a reasonable expectation of not being overheard, but no such expectation of not being seen.
In contrast to the Fourth Amendment privacy principle was the development of the privacy tort in civil law. Here the issue, as described in a famous law review article from the turn of the last century, was protecting against unreasonable invasions into personal affairs by the press and other persons. Professor  Prosser describes this tort as involving four separate concerns: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Like the Fourth Amendment, the civil law privacy tort was to serve as a means of protecting information and places. However, this tort is directed against other persons rather than against the government. In this way, privacy law became, in addition to a protection against certain governmental intrusions, a safeguard of individual person-hood and autonomy from the prying eyes of others. These were not the only sources of privacy protection that had been recognized prior to the Court’s decision in Bowers, however. Beginning in the 1960s, with Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court began to set out constitutional privacy law jurisprudence based on a liberty right to engage in private actions.
In Griswold, the Court upheld the constitutional privacy rights of a married couple to use contraceptives and of physicians to advise their use against a state law that prohibited both. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court extended that right to include unmarried persons. In Carey v. Population Services International, 431 U.S. 678 (1977), the Court extended the right still further, striking down a law that made it a crime to distribute contraceptives to minors. In Roe v. Wade, the Court extended constitutional privacy protections to a mother’s choice to have an abortion, noting that the fetus was not a person under the law.
The Supreme Court’s jurisprudence in this area was not confined to physical activity that was arguably self-regarding. The Court had also upheld, in Stanley v. Georgia, 394 U.S. 557 (1969), the right of a person to possess “obscene matter” in the home. In that case too the Court stated, “This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case—a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home—that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”
All the precedent that might suggest the contrary—the fact that the Court had previously recognized a constitutional privacy right of married persons, unmarried persons, and minors to obtain contraceptives and receive physician advice on their use; a women’s right to obtain an abortion with no recognized interest in an unborn fetus in the first two trimesters of a pregnancy; and the right to possess obscene materials in the home—indicates its decision in Bowers to be mistaken. The Court refused to find constitutional privacy protection for two consenting adults to engage in same-sex sodomy in the home. It is true that prior to Bowers, two cases—one New York Court of Appeals case, People v. Onofre, 415 N.E.2d 936 (N.Y. 1980), and a Virginia federal district court case, Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), aff’d mem., 425 U.S. 901 (1976)— had gone in opposite directions on whether a fundamental right to privacy covers and protects such activities. But it is also true that five years before Bowers was decided, the European Court of Human Rights (ECHR) had found, in a case similar to Bowers arising in Ireland, that the Irish statutory prosecution violated the privacy guarantee of the European Convention on Human Rights. According to many legal scholars, the Supreme Court’s failure in Bowers to acknowledge the ECHR case reflects the parochial attitude of some of the justices that the Court still has difficulty managing.
Bowers was thus not a “very hard” case at the time the Supreme Court decided it because the Court had a sufficient indication of society’s political morality both from its own past privacy decisions and based on what was happening elsewhere in the Western world to render a decision against such statutes based on their self-regarding nature, although it chose not to do so. Nor should the decision be dismissed on the ground that the courts have long recognized government’s right to prohibit certain seemingly self-regarding behaviors such as the private use of recreational drugs in the home. In this case, one might argue that a compelling state interest exists to prevent the harmful effects of such drugs on society, which cannot
be reasonably addressed absent a blanket proscription on their possession. A similar argument might be made for prohibiting prostitution on the basis of protecting poor women from exploitation. No such similar interest existed in Bowers, however. For the only interest that stands out there is the protection of traditional morality. But that interest would open the door to much subjectivity when no other harm can be shown. Consequently, it is fair to say that at the time when the Court heard the case of Bowers v. Hardwick, its own constitutional jurisprudence had already been sufficiently developed to afford protection to Michael Hardwick.
The same precursory precedent that was available to the Court in Bowers was also available to guide the Court’s more recent decision in Lawrence v. Texas, 539 U.S. 558 (2003), which overruled Bowers. The only difference, other than that society itself had become more tolerant of gay and lesbian people, was that now the Court would render a proper decision that was consistent with its own constitutional precedent.