Episode 5: Bowers v. Hardwick

Heightened Scrutiny

In the early 1980s, as the AIDS epidemic raged and public scorn for gay people had reached a fevered pitch, Michael Hardwick was arrested at his home in Georgia for the crime of sodomy. His consensual relationship with a male partner landed him in the back of a police car.

Though he was not ultimately charged or convicted, Hardwick sued Georgia, arguing that, as a gay man, the criminal prohibition of gay sexual activity would eventually put him at risk for future problems with the law. Hardwick believed the Fourteenth Amendment of the Constitution, which requires due process, protected a right to the private sexual intimacy of everyone.

In 1986, the Supreme Court narrowly ruled otherwise. The Court framed Hardwick's argument very narrowly, as a demand for a right to a specific kind of sex, rather than as a broad right to individual autonomy in intimate decisions. Hardwick lost, and the burgeoning gay rights movement was nearly halted in its tracks.

Question: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

Answer: No.

Majority:

• Byron White (majority opinion)
• Warren Burger (w/ concurrence)
• Lewis Powell (w/ concurrence)
• William Rehnquist
• Sandra Day O'Connor

Dissent:

• Harry Blackmun (w/ opinion)
• John Paul Stevens (w/ opinion)
• William Brennan
• Thurgood Marshall