*1 OF GEORGIA GENERAL BOWERS, ATTORNEY v. HARDWICK et al. 30, 1986 June Argued March 1986 Decided
No. 85-140. White, J., Court, Burger, J., opinion in which delivered C. Powell, Rehnquist, O’Connor, JJ., J., joined. Burger, and C. Powell, J., post, p. 197, p. concurring opinions. filed post, *2 opinion, Brennan, Marshall, Blackmun, J., dissenting filed a which J., JJ., Stevens, Stevens, joined, p. dissenting 199. filed a post, and Marshall, JJ., joined, post, p. opinion, Brennan 214. which and Hobbs, Attorney E. Assistant General of Michael Senior for With him on the the cause Georgia, argued petitioner. se, General, Bowers, Attorney pro briefs were Michael J. Gordon, General, and Attorney Marion 0. First Assistant Robinson, A. General. Attorney Assistant Senior Daryl for H. Tribe the cause respondent Laurence argued M. Sulli him the Kathleen Hardwick. With on brief were L. and van Kathleen Wilde.* the Court. the opinion delivered
Justice White (hereafter respond- In Hardwick August respondent ent) statute crimi- was with the charged violating Georgia for Catholic urging amici curiae reversal were filed the *Briefs of McDowell; by for Rights and Frederick League Religious for Civil Steven Bundren, Farley, by Guy Institute et al. W. Charles 0. the Rutherford Bird, Jr., Weaver, B. R. W. George Hollberg, William Wendell John M. Lindh; Kotouc, Whitehead, and for David Robin- O. and Thomas Alfred Jr., son, pro se. of New filed for urging Briefs of curiae affirmance were State amici York, Robert Abrams, Attorney of New by General York et al. Robert Zwickel, Kahn, Hermann, Howard L. General, Lawrence S. Solicitor Cohen, General, Attorneys Fraser, M. Assistant R. and Charles Sanford California; American Attorney for the Kamp, General of John de and Van Levenson, Cohen, and Frederick by David Congress Daniel D. Jewish by Margaret Mandel; et al. Psychological Association the American for Simon, Taub, and Her- Anne Nadine Bersoff, N. Ewing, Farrell Donald by City of York Semmel; Bar New for the Association bert by L. Rosen; John S. Organization for Women A. for the National Steven (U. A.) by Jeffrey 0. Katz; Presbyterian et al. Church for Bramlett. Project et al. Rights for the Lesbian curiae were filed Briefs of amici al. Gay Rights Advocates et National by Mary Dunlap; and for the C. Errante, Graff, Jay Kohom. Leonard P. Edward nalizing sodomy1 by committing that act with another adult respondent’s pre- inmale the bedroom of home. After a Attorney liminary hearing, pre- the District decided not to grand jury unless further sent the matter to evidence developed.
Respondent
brought suit in the
then
Federal District
challenging
constitutionality
of the statute
Court,
insofar
sodomy.2 He
as it criminalized consensual
asserted that he
practicing
Georgia sodomy
homosexual,
was a
that the
stat-
placed him in
ute,
defendants,
as administered
immi-
danger
nent
and that the
arrest,
statute for several rea-
sons violates the Federal Constitution. The District Court
granted the defendants’ motion to
for
dismiss
failure to state
relying
Attorney
Doe v.
claim,
Commonwealth’s
*3
(ED
City
Supp.
1975),
Richmond, 403 F.
Va.
which
(1976).
summarily affirmed,
this Court
that wished to in sexual 16-6-2 home, privacy App. they of their and that had been “chilled and de engaging activity by terred” from in such both the existence of the statute Id., held, however, and Hardwick’s arrest. at 5. The District Court that sustained, they danger because had neither nor were immediate of sus any injury taining, statute, they direct from the enforcement did not proper standing Id., have to maintain the action. at 18. The Court of Appeals judgment affirmed the District dismissing Court’s the Does’ claim (CA11 standing, 1985), for lack of 760 F. 2d and the Does challenge holding do not that in this Court. only Court, therefore, properly claim before the is Hardwick’s chal-
lenge Georgia applied sodomy. to the statute as to consensual homosexual express opinion constitutionality Georgia on the We no statute as applied sodomy. other acts panel Appeals
A divided
of the Court of
for the Eleventh
Circuit reversed.
F.
241
D.
2d
U. S.
C.
This case
general,
consenting
sodomy
in
against
adults
or be-
between
particular,
It
are wise or desirable.
tween homosexuals
legis-
right
propriety
question
state
about
raises no
repeal
homosex-
their laws that criminalize
to
lative decisions
invalidating
sodomy,
those
decisions
or of state-court
ual
presented
grounds. The issue
on state constitutional
laws
a fundamental
Constitution confers
the Federal
whether
right upon
sodomy
in-
and hence
homosexuals
many
that still make such
States
validates the laws
very long
illegal
so for a
time. The
and have done
conduct
judgment about the limits of the
calls for some
case also
carrying
out its constitutional mandate.
role
Court’s
Ap-
disagreement
register
our
with the Court
firstWe
prior
respondent
peals
the Court’s
cases have
that
and with
right
privacy
to confer
construed the Constitution
pur-
for all
and
intents and
extends to homosexual
poses
The reach of this line
this case.
of cases
have decided
Carey Population
International,
Services
v.
was sketched
Society
v.
Sisters,
Pierce
431 U. S.
(1925),
Meyer Nebraska,
v.
S. 390
U.
U. S.
dealing
rearing
(1923),
as
with child
and edu-
were described
(1944),
Massachusetts,
Precedent aside, however, would have us an- Appeals did, as the nounce, Court fundamental sodomy. quite unwilling in homosexual This we are despite language to do. It is true that the the Due Proc- ess Clauses of the Fifth and Fourteenth Amendments, which only appears processes liberty, life, to focus the which legion property taken, or are in which cases those interpreted to have Clauses have been substantive content, subsuming rights great extent are that to a immune from fed- regulation proscription. Among eral or state such cases rights recognizing sup- have little or no are those textual language. Meyer, port Prince, constitutional category, privacy do the Pierce fall in this as cases from Carey. Griswold public
Striving announcing to assure itself and readily rights in the in- identifiable Constitution’s text imposition more than the volves much Justices’ own on the Federal Government, choice of values States sought identify the nature has Court protection. heightened judicial qualifying In Palko v. 319, 325, it Connecticut, 302 U. was said that category includes those fundamental this liberties that are liberty,” concept “implicit such in the ordered that “neither *6 [they] justice liberty sacrificed.” A if were nor would exist appeared description different in liberties of fundamental (1977) (opinion 494, 431 503 East Cleveland, Moore J.), they are as those liber- characterized where of Powell, history “deeply and tradi- this Nation's rooted ties that are J.). also See Griswold 503 Id., tion.” at (Powell, at 506. Connecticut, S., 381 U. these formulations would us that neither of
It is obvious acts homosexuals a fundamental extend sodomy. Proscriptions against that conduct of consensual Survey generally on the Constitu See have ancient roots. Privacy Right to in the of Homosexual Activ Context tional (1986). Sodomy ity, 521, was a Miami L. Rev. 525 and was forbidden the offense at common law criminal t-hey original Bill 13 ratified the of the States when laws of Rights.5 In the Fourteenth Amendment was 1868, when 5 sodomy laws effect 1791: Criminal Connecticut, 1808, Laws the State of Public Statute of Connecticut: (rev. 1672). LXVI, 1, §2 Title ch. Delaware, 1797, §22, (passed ch. of Delaware: Laws State 1719). 1816, sodomy sodomy until but a Georgia had no criminal statute was Assembly law, adopted and the General the common law crime at common The Laws of England Georgia as the of 1784. First the State of law (1981). Georgia, pt. p. 290 Maryland sodomy Maryland’s had statute 1791. Declara- no criminal 1776, however, passed in that “the inhabitants Rights, tion of stated sodomy Maryland England,” and are entitled to common law of was a Swindler, 4 W. and Documents of United crime at common law. Sources (1975). States Constitutions passed by and Court of Massachusetts: Acts Laws General Massa- Mar, 3, chusetts, 1785. ch. Act of Hampshire passed sodomy New its first statute in 1718. Acts and Laws 1680-1726, Hampshire p. Newof Jersey law in New time of Sodomy was crime common Rights. first enacted its criminal ratification of Bill State sod- Assembly, years omy five later. Acts of Twentieth General Mar. law DC, ch. 7. 1787). York, (passed New ch. 21 New York: Laws of had criminal in the Union 5 of the 37 States ratified, all but outlawed In all 50 States fact, 1961,7 until laws.6 sodomy the District of Columbia today, States sodomy, Rights, Bill North Carolina had time of ratification of the At the sodomy. Henry outlawing See Collec- adopted English statute of VIII England in Force in the State of the Parliament of tion of the Statutes of 1792). (Martin North-Carolina, 17, p. ch. ed. Assembly of the Com-
Pennsylvania: Laws of the Fourteenth General 1790). CLIV, § Pennsylvania, (passed ch. monwealth The Earliest Acts and passed law in 1662. Rhode Island its first *7 1647-1719, Plantations Colony of Rhode Island and Providence Laws of the (1977). p. 142 (1790). Carolina, p. 49 Laws of the State of South South Carolina: Public Rights, Virginia spe- Bill had no the ratification of the At the time of adopted sodomy, English had common law. outlawing but cific statute (1821) 1776). 5, 6, p. (passed § 127 Hening’s Virginia, ch. 9 Laws of 6 in in 1868: statutes effect Criminal (1867). §3604 Alabama: Ala. Rev. Code (1865). (Terr.): Code, 10, § 48 Howell ch. Arizona (1858). IV, Stat., 51, §5 ch. Art. Arkansas: Ark. (1865). Laws, 1450, ¶ §48 1 Cal. Gen. California: (1868). (Terr.): Stat., 22, §§45, ch. 46 Rev. Colorado Colo. (1866). 7, Stat., 122, §124 Tit. ch. Conn. Gen. Connecticut: (1893). Stat., 131, §7 Del. Rev. ch. Delaware: 1868) (1892). Stat., 5, (passed §2614 div. Florida: Fla. Rev. (1867). 4287, §§4286, Georgia: Ga. Code (1869). 13, Code, § 11 Penal ch. Kingdom of Hawaii: Haw. (1845). §§49, Stat., 5, div. Illinois: Ill. Rev. (1855). (Terr.): 53, §7 Stat., Kan. eh. Kansas (1860). IV, § Stat., 28, Ky. eh. Art. Kentucky: 1 Rev. (1856). Offences, Stat., §5 La. Rev. Crimes Louisiana: (1840). 160, §4 Stat., XII, Tit. ch. Maine: Me. Rev. (1860). 30, § Code, Art. Maryland: Md. (1860). 165, §18 Stat., ch. Mass. Gen. Massachusetts: (1846). 30, 158, §16 Stat., Tit. ch. Michigan: Mich. Rev. (1859). 96, §13 Stat., Minn. ch. Minnesota: (1857). Code, 64, LII, § Art. 238 Mississippi: Rev. ch. Miss. (1856). VIII, Stat., 50, §7 Art. Rev. ch. Missouri: Mo. (Terr.): Resolutions, Memorials, Acts, Criminal Practice Mont. Montana (1866). IV, §44 Acts, ch. (1866). (Terr.): Stat., Code, 4, §47 ch. Rev. Crim. Neb. Nebraska sodomy performed penalties provide criminal continue to Survey, consenting private adults. See U. and between Against supra, this n. 9. back Rev., 524, Miami L. ground, such conduct to claim that history “deeply “im and tradition” or in this Nation’s rooted liberty” plicit concept facetious. is, best, of ordered expansive view of our inclined to take a more Nor are we authority new fundamental imbedded to discover is most vulnerable and Due Process Clause. The Court judge-made illegitimacy when it deals with comes nearest to cognizable having roots law little or no constitutional design language That is so was of the Constitution. this painfully the Execu- demonstrated the face-off between repudi- 1930’s, in the which resulted tive and the Court (Terr.): Laws, 1861-1900, Comp. and Punish- Nevada Nev. Crimes ments, §45. (1815). Laws, 19, 1812, § Act. Hampshire:
New N. H. of June (1847). 1, Stat., 8, §9 Jersey: N. Rev. Tit. ch. New J. (5th 1859). Stat., 5, §20 pt. Rev. ch. Tit. ed. New York: 3 N. Y. (1855). Code, 34, § N. C. Rev. ch. North Carolina: Ore., Morality, etc., 7, §655 Oregon: Against ch. Laws of Crimes — 31,1860, Digest in 1 Pennsylvania: Act of Mar. Pub. L. of Stat- *8 (Purdon 1905). 1700-1903, p. ute Law of Pa. (1872). Stat., 232, § 12 Island: R. I. ch. Rhode Gen. 1712, 1682-1716, Large Act Stat. at of S. C. South Carolina: (1837). p. 493 (1858). Code, 8, 1, § ch. Art. Tennessee: Tenn. (1887) 1860). Stat., 10, 5, (passed Tit. ch. Art. 342 Texas: Tex. Rev. (1779). Acts and Laws of the State of Vt. Vermont: (1868). 149, Code, § 12 Virginia: ch. Va. (1868). Code, 149, § Virginia: eh. West W. Va. (Terr.): 14,§ p. 367 Wisconsin Wis. Stat. adopted In Illinois the American Law Institute’s Model Penal adult, consensual, Code, private, which decriminalized sexual conduct. (codi 11-2, 11-3, Laws, §§ pp. 1961 Ill. Criminal Code (1983) Stat., 38, ¶¶11-2, (repealed ch. fied as amended at Ill. Rev. 1984)). Institute, (Proposed American Law Model Penal Code 213.2 See 1962). Draft Official gloss ation of much of the substantive that the Court had placed on the Due Process Clauses of the Fifth and Four- teenth great Amendments. be, There should therefore, re- expand sistance to the substantive reach of those Clauses, particularly requires redefining category if it Judiciary deemed to be fundamental. Otherwise, the nec- essarily authority govern takes to itself further the coun- try express authority. without constitutional The claimed right pressed today overcoming on us falls far short of this resistance.
Respondent, however, asserts that the result should be dif-
privacy
ferent where the homosexual conduct occurs in the
Stanley Georgia,
the home. He relies on
Stanley protect pro- did conduct that would not have been partially prevented tected outside the home, and it the en- obscenity firmly forcement of state laws; but the decision was grounded right pressed upon the First Amendment. The support us here has no similar the text of the Constitution, qualify recognition prevailing and it does not for under the principles construing the Fourteenth Amendment. Its Plainly enough, limits are also difficultto discern. otherwise illegal always conduct is not immunized whenever it occurs in possession crimes, home. Victimless such as the and use illegal drugs, escape they do not the law where are com- Stanley recognized holding mitted at home. itself that its of- protection possession drugs, fered no for the the home of goods. firearms, Id., or stolen n. 11. And if re- spondent’s voluntary submission limited to the sexual con- consenting except adults, duct between it would difficult, *9 right to limit the fiat, claimed to homosexual conduct prosecution adultery, leaving exposed incest, and while though they are committed the crimes even other sexual unwilling to start down that road. are home. We at issue here is not a fundamental if the conduct Even right, respondent that there must a rational basis asserts in this other than there is none case the law and that the Georgia majority presumed of the electorate in belief of unacceptable. sodomy is immoral This that homosexual inadequate support the an rationale law. The is said to be constantly morality, on law, however, is based notions representing essentially moral to be in- if all choices are laws the Due Process the courts will be Clause, validated under respondent very busy makes no such claim, indeed. Even morality majority sentiments the that about but insists homosexuality inadequate. do should be declared We sodomy unpersuaded agree, the laws and are of some invalidated on this basis.8 States should be Appeals Accordingly, judgment of the Court of is the
Reversed. Burger, concurring. Chief Justice join opinion, separately I under- but write Court’s my constitutional terms there is no such score view sodomy. thing to commit homosexual as a fundamental proscriptions against ante, at notes, As Court sodomy very have “ancient roots.” Decisions individuals subject relating conduct have been to state to homosexual throughout history of Western civilization. intervention practices firmly those rooted in Judeao- Condemnation of ethical standards. moral and Homosexual Christian capital under Roman law. See Code Theod. was a crime Bailey, Homosexuality D. 9.9.31. See also Code Just. 9.7.6; judgment based Respondent does not defend below Ninth Amendment, Clause, Eighth or the Equal Protection Amendment. *10 (1975). During
and the Western Christian Tradition 70-81 English powers the Reformation when of the ecclesiastical King’s Eng- courts were transferred to the Courts, the first criminalizing sodomy passed. lish statute was VIII, Hen. against ch. 6. Blackstone described “the infamous crime na- “deeper malignity” rape, ture” as an offense of than a heinous very disgrace act “the mention of which is a to human na- ture,” and “a crime not fit to be named.” 4 Blackstone, W. England, including Commentaries *215. The commonlaw of prohibition sodomy, Georgia its became the received law of Georgia Legislature and the other Colonies. In 1816 the passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. pro- To hold that the act of homosexual is somehow right tected as a fundamental would be to cast aside millennia teaching. of moral essentially question personal “preferences”
This is not a legislative authority rather but nothing of the of the I State. find depriving power in the Constitution a State of the challenged enact the statute here. Powell,
Justice concurring. join opinion agree I Court. with Court right e., that there is no fundamental no substantive —i. by the Due Process Clause—such that claimed under as re- spondent Ap- found to Hardwick, exist the Court of respondent peals. suggest, This is not to however, Eighth protected Amendment of the not be Constitu- Georgia statute at issue this case, tion. Ga. Code § imprison person a court Ann. 16-6-2 authorizes a up years single private, to 20 for a consensual act of sod- my prison omy. In view, sentence for such conduct—cer- long tainly a sentence of duration —would create a serious Eighth Georgia issue. Amendment Under statute a sin- sodomy, private gle setting even home, act of of a is a possible imposed felony comparable terms sentence battery, aggravated §16-5-24, as such to serious felonies § robbery, first-degree arson, 16-7-60, and 16-8-40.1 respondent much tried, has been case, however, In this respondent Moreover, has less convicted sentenced.2 Eighth issue below. For these not raised Amendment argument is not before us. this constitutional reasons *11 1 sodomy crime, Georgia continue to make Among those States that § possible sentences. See Ala. 13A- longest Code authorizes one (1982) 6-65(a)(3) maximum); §§13-1411, (1-year Rev. Ann. Ariz. Stat. 1985) (30 (1977) (West §41-1813 Supp. days); Ark. Ann. Stat. (1981) maximum); §22-3502 (1-year maximum); (10-year D. C. Code Fla. (1984) (1 (1985) maximum); (60-day § §800.02 Ga. Code Ann. 16-6-2 Stat. (1979) minimum); (5-year § years); to Code 18-6605 Kan. Stat. 20 Idaho 1985) (6-month maximum); Ky. §510.100 (Supp. §21-3505 Rev. Stat. Ann. (West 1986) (1985) (90 months); § days 12 La. Rev. Ann. 14:89 to Stat. (1982) 27, §§553-554 (5-year maximum); Code, (10-year Art. Md. Ann. (1968) maximum); (15-year maximum); § Comp. Laws 750.158 Minn. Mich. (1984) maximum); (1-year §609.293 §97-29-59 Miss. Ann. Code Stat. 1984) (1973) (Supp. (1-year § (10-year maximum); Mo. Rev. Stat. 566.090 (1985) (10-year maximum); § maximum); Ann. 45-5-505 Nev. Mont. Code (1985) maximum); (6-year §201.190 §14-177 N. C. Gen. Stat. Rev. Stat. (1981) Stat., (1981) maximum); (10-year §886 (10-year Okla. Tit. (1981) (7 § maximum); years); to I. Laws 11-10-1 C. Code R. Gen. (1982) (1985) (5-year maximum); § § Tenn. Code Ann. 16-15-120 39-2-612 (1974) ($200 (5 fine); §21.06 years); Ann. to 15 Tex. Penal Code maximum (1978) (6-month § maximum); § 18.2- Utah Ann. 76-5-403 Va. Code Code maximum). (1982) (5-year that, argument prior complaint against to It was conceded oral Hardwick, pros respondent reported involving had no there been decision private this for dec for homosexual under statute several ecution Aldredge, E. Thompson 187 Ga. 200 S. ades. See Moreover, against present charge the criminal the State has declined declaratory judgment jury, and this is a for grand to a suit Hardwick by challenging validity of his respondents the statute. brought today of laws tory suggests the moribund character of nonenforcement criminalizing type private, consensual conduct. Some States this validity of But the repealed similar constitutional have statutes. put by respondents, and the reasons stated in issue Georgia statute was years Court, hundreds of say that conduct condemned for I cannot right. has become a fundamental now with Blackmun, Brennan,
Justice whom Justice Jus- Marshall, tice and Justice join, Stevens dissenting. right This case is no more about “a fundamental sodomy,” purports in homosexual as the Court to declare, Georgia, Stanley (1969), ante, than U. S. 557 right a fundamental to watch was about obscene movies, (1967), Katz v. S. 347 States, United U. was about a right place telephone fundamental interstate bets from a comprehensive Rather, booth. this case is about “the most right namely, men,” and the most valued civilized right “the to be let alone.” Olmstead v. United States, 277 (1928)(Brandeis, dissenting). J., § 16-6-2 issue, The statute at Ga. Code Ann. denies themselves individuals the to decide for whether to en- gage particular private, consensual forms of sexual activ- ity. essentially 16-6-2 is valid The Court concludes that many . . “the laws of . . . States . still make such because very long illegal have for a time.” Ante, conduct done so *12 judgments expressed by But the fact that the moral at 190. §16-6-2 may “‘natural and familiar statutes like be . . . upon ought judgment question not to conclude our the embodying conflictwith statutes them the Constitu- whether Wade, 113, tion of the United States.’” Roe (1905) (1973),quoting York, Lochner v. 45, New (Holmes, dissenting). Holmes, Like Justice I J., believe revolting “[i]t reason for to have better a rule of that is no law Henry laid the time of that so it was down in IV. It is than upon revolting grounds if the which it still more was laid long simply persists the rule and since, down have vanished past.” Holmes, imitation of the Path of the from blind (1897). I believe 10 Harv. L. Rev. we must Law, light analyze respondent in the claim of Hardwick’s the val- right privacy. the If ues that underlie constitutional that anything, Georgia that, it before means can means making prosecute for choices about the citizens most inti- its aspects that it than assert lives, of their must do more mate “ they not fit to is an crime have made ‘abominable the choice Herring among State, Ga. named Christians.’” (1904). 709, 721, S. E. h-t Appeals and hold that the Court of
In
haste to reverse
its
right upon
“confe[r] a fundamental
Constitution does
the
sodomy,”
the Court
ante,
homosexuals
relegates
being challenged
to a footnote
the actual statute
posture
ignores
procedural
it. A
of the case before
the
and
clearly
complaint
reading
the
re-
of the statute
of
fair
question
majority
this case
has distorted the
that
veals
presents.
almost obsessive focus
homosexual
First,
Court’s
particularly
justify
light
activity
hard
broad
Georgia
language Georgia
the Court,
has
Unlike
used.
proceeded
assumption
Legislature
on the
that homo-
has not
that their
so
from other citizens
lives
sexuals are
different
way
in a
not be tolerated if it
be controlled
that would
ante,
other citizens. Cf.
limited the choices
those
Georgia
provided
person
"[a]
Rather,
commits
n. 2.
has
performs
he
or submits to
the offense
when
person
involving
organs act
the sex
one
sexual
§16-6-2(a)
Ann.
mouth
of another.”
Code
or anus
Ga.
persons
engage in
The sex or status
who
law.
In
to the
fact,
act is irrelevant as matter
state
ex-
legislative
Georgia’s
purpose
tent can discern a
en-
purpose
§16-6-2,
seems to have been to
actment of
coverage
of the law to reach heterosexual as well
broaden
activity.1 I therefore see no basis for the
as homosexual
*13
1
1968,
knowledge
“the carnal
Georgia
Until
defined
as
con
nature,
man,
against
order of
man with
the same un
nection
(1933).
§26-5901
woman.” Ga.
Code
In
natural manner with
Crim.
Thompson Aldredge,
(1939),
Georgia
E.
Ga.
S.
activity.
§
Supreme
prohibit
did not
lesbian
Court held that
26-5901
And
Riley
Garrett, (1963),
E. 2d
the Georgia
Ga.
applied”
Court’s decision to
challenge
treat this case as an “as
§to
Georgia’s
16-6-2, see
attempt,
ante,
188, n.
or2,
argument,
§
both in its brief and at oral
to defend 16-6-2
solely
grounds
prohibits
on the
activity.
that it
homosexual
standing may
Michael
significant part
Hardwick’s
rest
Georgia’s apparent willingness
against
to enforce
homosex-
any
uals a law it seems not
against
to have
desire to enforce
Arg.
heterosexuals. See Tr. of Oral
4-5; cf.
Second, with the Court’s refusal to consider Eighth whether 16-6-2 runs afoul of the or Ninth Amend- Equal ments or the Protection Clause of the Fourteenth Respondent’s complaint Amendment. Ante, n. 8. expressly App. invoked the Ninth Amendment, see 6, and he heavily relied before this Court on Griswold v. Connecticut, which identifies that Amendment specific provisions as one of giving constitutional “life and understanding privacy. substance” to our See Brief for Respondent Arg. Hardwick 10-12; Tr. of Oral 33. im- More portantly, procedural posture requires of the case Appeals’ judgment we affirm the Court of if there is ground respondent may on which be entitled to relief. This petitioner’s case is before us on motion to dismiss for failure 12(b)(6). App. claim, to state a Fed. Rule Civ. Proc. See 17. principle complaint It is a well-settled of law that “a should merely plaintiff’s allegations not be dismissed because do support particular legal theory he advances, for duty complaint court is under a to examine the to determine allegations provide any possible theory.” if the for relief on Supreme §26-5901 Court held that prohibit did not heterosexual cunni- lingus. Georgia passed act-specific currently statute “perhaps force response Riley,” Note, to the restrictive court decisions such as Nature, Against 159, 167, Crimes 16 J. Pub. L. n. 47 *14 202 (CA8 1974);see Parr 714, F. 2d 716 Wilson, v. 495
Bramlet (CA7 1973); Express 767, F. 773 Co., Lakes 484 2d Great (CA5 631 Theatres, Inc., F. 2d Tallahassee 333 Due v. (CA9 1964); F. 2d Howell, United States 1963); Wright Practice and Proce- Miller, A. Federal C. & (1969); Conley § pp. v. Gibson, see also 601-602 dure respondent if not Thus, even did U. S. Eighth Amendments, Ninth claims based on the or advance complaint Equal Clause, his should on the Protection provisions him to if of those could entitle dismissed Eighth Amendment or I reach either the relief. need not Equal I issues believe that Protection Clause because the cognizable that 16-6-2 inter- has stated a claim Hardwick constitutionally protected privacy and with interests feres Eighth association. But neither the freedom of intimate Equal clearly ir- nor the Protection Clause is so Amendment resting provision pe- a claim on either should be relevant that cramped reading remptorily of the dismissed.2 The Court’s (1962), California, In Robinson v. 370 U. S. the Court held convicting a to his Eighth Amendment barred defendant due “status” the addict, “apparently illness that condition was an which as a-narcotics since involuntarily.” Id., In innocently or at 667. Powell v. may be contracted Texas, to where the Court refused extend Robinson alcoholic, public by a one of fac punishment of drunkenness chronic plurality opinion, in writing was Marshall, tors relied on Justice “attempted regulate appellant’s pri Texas had not behavior Id., separately: vacy his home.” 532. Justice White wrote own “Analysis by preoccupation ease is not of this difficult advanced with In ‘a which ‘condition.’ Robinson the Court dealt with statute makes label S., . . . of narcotic addiction a criminal offense the “status” By criminal conviction for a ‘status’ the Court was precluding 666. such brought remote in time from dealing with a condition about acts contemplated, a application of the criminal sanctions condition which was duration, relatively great magnitude permanent in and a condition of and ... If were significance in terms of human behavior values. it neces- purposes sary distinguish between ‘acts’ ‘conditions’ Amendment, implicit concept adhere to the Eighth would ‘condition’ proper subject of opinion inquiry in Robinson .... whether brought acts acts about ‘condition’and whether those are suf- volitional issue before it makes for a short opinion, but it does little to make for a persuasive one.
II *15 “Our cases have long recognized that the Constitution em- bodies a that a certain promise private sphere of individual liberty will be kept largely beyond the reach of government.” v. American Thornburgh Obstetricians College & Gyne- (1986). 476 cologists, U. S. In construing the right to privacy, Court has proceeded two along somewhat dis- fieiently proximate to the permissible impose penal ‘condition’for it to be to Id., 550-551, sanctions on the ‘condition.’” n. 2.
Despite historical
homosexuality,
views of
longer
it is no
viewed men-
professionals
tal health
as a “disease” or disorder. See Brief for American
Psychological Association and American Public Health Association as
But,
Amici
obviously,
Curiae 8-11.
simply
neither is it
a matter of delib-
personal
erate
election. Homosexual
may
part
orientation
well form
very
fiber of an
personality. Consequently,
individual’s
under Jus-
analysis
Powell,
Eighth
may pose
Amendment
a con-
tice
White’s
sending
stitutional barrier to
an
prison
individual
acting
for
on that at-
regardless
traction
of the
ability
circumstances. An individual’s
to make
constitutionally protected
concerning
relations,”
“decisions
Carey
sexual
Population
International,
(1977)
Services
J.,
U. S.
(Powell,
concurring
part
concurring
in judgment), is
empty
rendered
indeed
given
if he or she is
no real
any physical
choice but a life without
intimacy.
respect
Equal
With
to the
applicability
16-6-2,1
§
Protection Clause’s
Georgia’s
note that
exclusive stress before this Court on its
interest
prosecuting
activity despite
gender-neutral
homosexual
terms of the
may
questions
discriminatory enforcement,
statute
raise serious
ques
disposed
tions that cannot be
of before this
Court
a motion to dismiss.
(1886).
Hopkins,
See Yick Wo v.
legislature
118 U. S.
having
participants
decided that the sex of the
legality
is irrelevant to the
acts,
why
of the
I do
ground
not see
the State can defend 16-6-2 on the
singled
prosecution
that individuals
out for
are of the same sex as their
partners. Thus,
case,
under the circumstances of this
a claim under the
Equal
Protection Clause
well be
having
available without
to reach the
more
question
suspect
controversial
whether
a
homosexuals are
class.
See,
g.,
District,
e.
Rowland v. Mad River Local School
A today prior that none of our cases concludes The Court dealing entitled to decisions that individuals are with various *16 governmental resem- of interference “bears make free right of homosexuals to to the claimed constitutional blance in this case.” in of asserted acts it is that these cases be at 190-191. While true Ante, protection family, of their connection to characterized Jaycees, 468 U. S. see Roberts v. United States they extend no further conclusion that Court’s ignores warning boundary Moore v. East than this (1977) (plurality opinion), Cleveland, 431 U. why “clos[ing] eyes against to the basic certain our reasons family rights have been accorded shelter associated with the Amendment’s Due Process Clause.” under the Fourteenth they protect contribute, not because some We those general public way, welfare, direct and material but part they so of life. form central a an individual’s because concept privacy “[T]he embodies the ‘moral fact that a society person belongs and not others nor to as to himself ” Thornburgh College Obstetricians v. American a whole.’ Gynecologists, J., n. 5 concur- S., 476 U. & (Stevens, Correspondence, ring), quoting 6 Phil. Fried, & Pub. Affairs protect the And so we decision whether precisely marriage
marry “is association that an because harmony living, way promotes a not life, causes; a not loyalty, political a not or social faiths; bilateral commercial projects.” Connecticut, S., v. at 486. We Griswold parent- protect to have a child because the decision whether dramatically self-definition, an individual’s hood alters so demographic or the Bible’s com- because of considerations Thornburgh multiply. Cf. v. Ameri- to be fruitful and mand supra, College Gynecologists, at 777, & can Obstetricians concurring). protect family And we J., 6n. (Stevens, happiness powerfully so to the indi- because it contributes stereotypical preference of a house- viduals, not because S., at 500-506 Cleveland, Moore v. East U. holds. Cf. recognized opinion). (plurality Roberts, Court “ability independently to one’s define S., 619, that U. liberty” truly identity any concept of is central to cannot depend en- vacuum; a we all the “emotional be exercised others.” Ibid. from close ties with richment Only fact that blindness could obscure the the most willful key relationship intimacy sensitive, of human ex is “a sexual family community life, welfare, and the istence, central to personality,” development Adult Theatre of human Paris Carey Popula (1973); 49, see also 413 U. S. Slaton, (1977). The 431 U. S. International, tion Services significant way in a define themselves that individuals fact relationships sug through with others intimate sexual their may many gests, that there ours, as Nation as diverse *17 relationships, conducting ways “right” and that those of relationship will come the free of a from of the richness much form and of to choose the nature these an has dom individual intensely personal Karst, The Freedom of Inti bonds. See (1980); L. J. cf. Eisen 89 Yale Association, mate (1972); Wade, Roe v. U. S. Baird, stadt S., at 153. U. recognized variety we have that a of circumstances
In a giving corollary necessary freedom to choose of individuals acceptance how to conduct their lives is of the fact that differ- ent example, individuals will make different choices. For holding clearly important public that the state interest give way competing education should to a claim the Amish schooling to the effect that extended formal threatened their way of assumption life, the Court declared: “There can be no today’s majority ‘right’ and the Amish and others like ‘wrong.’ way them are A of life that is odd or even erratic but interferes with no or interests of others is not to be condemned because it is different.” Wisconsin v. Yoder, 406 U. S. The Court claims that its decision today merely recognize right refuses to a fundamental to en- gage sodomy; really homosexual what Court has re- recognize fused to is the fundamental interest all individuals controlling have in the nature their of intimate associations with others.
B prosecution The behavior for which Hardwick faces oc- place curred his home, own to which the Fourth Amend- special significance. ment attaches The Court’s treatment of aspect symptomatic this of the case is of its overall refusal to principles consider the broad that have informed our treat- privacy specific right ment of privacy cases. Just as the aggregation is more than the mere of a number of entitle- specific ments protecting behavior, so too, physical integrity merely of the home is more than a means protecting specific place activities that often take there. understanding Even right when our contours of the privacy depends ‘place,’” on “reference to a Katz v. United (Harlan, concurring), States, S., U. at J., “the es- breaking sence of a Fourth Amendment violation is ‘not the person’s] [a rummaging doors, and the of his drawers,’ but personal rather is ‘the invasion his indefeasible security, personal liberty private property.’” Califor- nia v. Ciraolo, J., dis- (1986) (Powell, *18 Boyd
senting), quoting
States,
v. United
116 U. S.
pivotal
interpretation
Stanley
ease of
the
Court’s
entirely unconvincing.
Georgia,
is
“‘The makers of our happiness. They pursuit of to the favorable conditions spiritual significance recognized nature, of man’s They only feelings knew of his intellect. that his pleasure pain, part and satisfactions life are of the They sought things. protect material found in thoughts, their emo- beliefs, in their their Americans and their sensations.’ tions appellant asserting is that “These are asserting right He to read us. the case before satisfy pleases in his he what or observe —the privacy in of his needs emotional tellectual and quoting 564-565, Olmstead S., 394 U. own home.” (Brandeis, at 478 States, S., J., v. United dissenting). Stanley gives place Justice Brandéis’ dis- that
The central raising First claim, a case no Amendment Olmstead, sent in Stanley on the rested as much Court’s under- shows itas did on standing the First. Fourth Amendment Slaton, Adult Theatre I Paris Indeed, (1973), suggested reliance on the Fourth the Court *19 only supported outcome Stan- Amendment not the Court’s actually necessary ley “If but was to it: obscene material un- protected by carried with it a the First Amendment itself constitutionally protected ‘penumbra’ privacy, this Court necessary Stanley decide on the would not have found it to hardly ‘privacy home,’ of the which was narrow basis of the that ‘a man’s home is his castle.’” more than a reaffirmation right people at 66. “The of the to be secure S., expressly guaranteed by houses,” . . . the Fourth their perhaps the most “textual” of the various Amendment, provisions understanding that inform our constitutional right privacy, agree I and thus cannot with the Court’s “[tjhe right pressed upon us statement here has no . . . support in Constitution,” ante, the text of the at 195. In- of an individual to conduct intimate deed, ships relation- intimacy in the of his or her own home seems to me to protection privacy. be the heart of the Constitution’s HHHHHH comprehend magnitude s failure to Court liberty slight interests at stake this case leads it to question petitioner, justi- whether of the State, behalf has Georgia’s infringement fied on these I interests. believe § general justifications that neither of the two for 16-6-2 that petitioner dismissing respondent’s has advanced warrants challenge for failure to state a claim. petitioner by asserts that
First, the acts made criminal consequences gen- statute have serious adverse for “the public spreading welfare,” eral health and such as commu- fostering activity. or nicable diseases other criminal Brief for Petitioner 37. Inasmuch as this case was dismissed pleadings, surprising the District Court on the it is any support pe- the record before us is barren of evidence to light titioner’s claim.3 In record, of the state of the see Even if a challenge apply simple court faced with a to 16-6-2 were to scrutiny statute, Georgia required rational-basis to the would be to show equate priv- attempt justification for the Court’s no “posses- activity with the sexual at issue here ate, consensual goods,” drugs, ante, stolen firearms, the home sion protection. Stanley its refused to extend 195, to which so mentioned n. 11. of the behavior None S.,U. Stanley properly “[v]ictimless,” ante, at can viewed as be g., inherently dangerous, weapons drugs e. see, are 195: McLaughlin and for States, v. United wrongfully property have been “stolen,” someone must pro- deprived Nothing in the Court the record before it. activity justification finding forbidden vides *20 persons § physically dangerous, en- to the to either 16-6-2 gaged it to in or others.4 it seeks forbidden acts and the ill effects connection between the
an actual by § prohibited 16-6-2 and between the acts prevent. The connection to subject is a petitioner in his brief before this Court identified the harms Rule of Civil hardly to dismissal under Federal dispute, hot amenable 12(b)(6). Brief Compare, g., Brief for Petitioner 36-37 and e. Procedure hand, 23-28, with Robinson, Jr., on the one as Amicus Curiae David for (1980); 476, 489, 415 E. Brief Y. N. 2d Onofre, 51 N. 2d People v. Attorney York, joined by the of New Attorney General of the State for the 11-14; for the California, and Brief as Amici Curiae of the State of General Health Associa- Psychological and American Public Association American 19-27, on the other. Amici Curiae tion as today necessary to that are not not decide issues Although I do think it simple, us, find remotely it to me that a court could before does seem even private, sexual certain consensual analytically between sound distinctions (the only vaguely hand, adultery two and incest conduct, one on the 196), ante, majority points, at to “sexual crimes” which specific a aspects, is civil spiritual to its example, marriage, addition For other. variety governmentally contracting parties to that entitles contract nec the contractual commitment might A define benefits. State provided of fi to include a commitment essary for these benefits eligible to become Moreover, breaching that contract. punish delity individuals and then persons, likely injure adultery is third might conclude that a State af engage who in extramarital spouses persons and children particular, respondent incest, agree well with might a court respect to fairs. With relationships true consent incestuous renders of familial that the nature prohibition activity of such sufficiently problematical that a blanket activity § petitioner’s 16-6-2, however, The core of defense of pro- respondent and others the conduct who §by Georgia’s 16-6-2 interfere with exercise of the hibited “‘right to maintain a decent of the Nation and of the States society,”’ I S., (1964) Paris Adult Theatre U. Slaton, quoting 59-60, Ohio, 378 U. S. Jacobellis (Warren, dissenting). Essentially, petitioner argues, J.,C. agrees, fact that Court the acts described years, thousands, if 16-6-2 “for hundreds of have been uniformly as immoral” is a sufficient reason to condemned today. permit a ban State to them Brief for Petitioner 19; ante, 190, 192-194, see 196. agree length majority that either cannot of time a has passions
held its convictions or the
with which it defends
legislation
scrutiny.
can
from
them
withdraw
this Court’s
g.,
(1973);Loving
See, e.
Wade,
Roe v.
for the Court West Board Education v. Bar apply nette, 319 U. 641-642 “we the limita tions of the Constitution with no fear that freedom to be intellectually spiritually contrary diverse or even will [Fjreedom disintegrate organization. the social . . . to differ things is not limited to much. that do not matter That would be a mere shadow of The test of its freedom. substance is things to differ as that touch heart of the ex isting order.” at Karst, J., See also 89 Yale L. 627. It is precisely by because the issue raised this case touches the they heart of what makes individuals what are we should especially rights sensitive to the of those whose choices upset majority. pro-
The assertion that “traditional Judeo-Christian values the conduct involved, scribe” Brief for Petitioner cannot § provide adequate justification an for 16-6-2. That certain, religious groups all, but no means condemn the behavior gives impose judgments issue State no license to their citizenry. legislation legitimacy on the entire The secular depends jus- instead on whether the State can advance some beyond conformity religious tification for its law its doc- g., Maryland, e. See, trine. 366 U. S. McGowan (1961); Thus, Graham, Stone v. 449 U. S. buttressing petitioner’s Le- far from his invocation of case, sodomy’s Aquinas, hereti- viticus, Romans, St. Thomas suggestion during Ages cal status the Middle undermines his represents legitimate that 16-6-2 use of secular coercive punish private power.6 A can behavior be- State no more statutes). held, only invidious racism of Vir Yet the Court that the S., 7-12, Clause, ginia’s Equal law violated the see 388 U. Protection Lovings process denying them deprived but also that the law of due “long recognized as one marry” the “freedom of choice to that had been happiness personal orderly pursuit of the vital essential to the Id,., by free men.” at 12. antisodomy theological origin Anglo-American nature of the made a secular patent. was statutes is It was not until 1633 *22 time, VIII, the offense England. 6. offense 26 Hen. ch. Until religious punish cause of intolerance than it can such behavior because of racial animus. “The Constitution cannot control prejudices, such but neither can it tolerate them. Private biases be outside the reach of law, but the law can directly indirectly, give not, or them effect.” Palmore v. (1984). Sidoti, U. S. No matter how uncomfort group may majority a certain able make the of this Court, we public “[m]ere animosity have held that intolerance or cannot constitutionally justify deprivation person’s physical of a liberty.” (1975). O’Connor v. Donaldson, U. S. Living See also Cleburne v. Cleburne Center, Inc., 473 U. S. (1985); Dept. Agriculture United States v. Moreno, 413 (1973). justified “morally Nor can 16-6-2 be as a neutral” exer- Georgia’s power “protect public cise of environment,” Certainly, Paris Adult Theatre 413 I, S.,U. at 68-69. some private society behavior can the fabric of as a affect whole. people may particular Reasonable differ about whether sex- ample ual acts are moral or but immoral, “we have evidence believing people morality, for will not abandon will not any cruelty think dishonesty, merely better of murder, private practice they because some sexual which abominate is punished by Immorality the law.” H. L. A. Hart, reprinted (L. Treason, in The Law as Literature 220, 225 1961). Blom-Cooper ed. Petitioner and the Court fail to see protect public the difference between laws that sensibilities private morality. and those banning that enforce Statutes was, Stephen’s words, “merely Sir James Stephen, ecclesiastical.” J. History (1883). A of the Criminal England Law of Pollock and similarly Maitland against observed that “[t]he crime nature . . . was so closely heresy vulgar connected with that the had but one name for both.” Maitland, F. History Pollock & F. English The Law 554 jurisdiction transfer of prosecutions over to the secular courts primarily seems due to jurisdiction the alteration of ecclesiastical attendant England’s break with the Church, Roman Catholic rather than to new understanding of sovereign’s in preventing interest punishing (4th Coke, 1797). behavior Institutes, involved. Cf. 6 E. eh. 10 ed. *23 entirely protecting activity
public
consistent with
sexual
are
concerning
liberty
in decisions
sexual
the individual’s
interest
recognition
in-
that those decisions are
relations: the same
justifies protecting
govern-
tensely private
them from
which
justify protecting
interference can
individuals from
mental
exposure
unwilling
to the sexual activities of others. But
punished
it
mere fact that intimate behavior
be
when
public
regulate
place in
cannot dictate how States can
takes
places.
Paris
behavior that occurs
intimate
See
intimate
(“marital
S.,
Adult Theatre
n. 13
intercourse
I,
stage”
a street corner or a theater
can be forbidden de-
protection
spite
v.
the constitutional
identified Griswold
(1965)).7
Connecticut,
IV years to see the error its It took but three for the Court analysis District 310 U. S. Gobitis, School v. Minersville that, appeared while the Fourth argument suggestion a At oral prevent might home from special protection of the State Amendment’s engage in against § individuals who consensual sexual ac enforcing 16-6-2 there, make the statute invalid. See Tr. tivity protection that would not point entirely. suggestion misses the If the law Arg. 10-11. The of Oral it, can invade invalid, provided, the home to police then the enforce is not probable course, they a determination cause from a neutral that obtain Griswold holding the Court’s v. of the reasons for magistrate. One Connecticut, (1965), precisely possibility, repug- 381 U. S. was regarding nancy, permitting searches to obtain evidence the use of con Id., Permitting might the kinds of searches that traceptives. at 485-486. activity by 16-6-2 necessary evidence of the sexual banned to obtain Lee, Cf. Winston intrusive, repugnant. v. no less seems (CA7 1983). City Chicago, 723 F. (1985); Mary Beth G. 2d recognize the threat national co- and to that vastly flag posed a refusal to salute was out- hesion posed by compel- weighed by same values the threat to those Virginia ling Board Education such salute. See West only hope here, can Barnette, 319 U. S. analysis reconsider its and conclude too, the Court soon will depriving to choose for them- individuals poses relationships their intimate a far selves how to conduct *24 deeply greater most rooted in our threat to values history nonconformity than tolerance could ever Nation’s today betrays I values, Because think the Court those do. dissent. with whom Justice Brennan and Stevens,
Justice dissenting. Marshall join, Justice challenged in case,1 Like the that is this the ration- statute opinion applies equally prohibited ale of the Court’s to the parties regardless engage conduct of whether who it are of the same unmarried, are married or or different Sodomy type condemned as an odious and sinful sexes.2 was during period the formative of the common law.3 of behavior 16-6-2(a) (1984)(“A person Ga. Code Ann. commits the offense of See any sodomy performs involving to when he or submits sexual act sex another”). person mouth or anus of organs of one and the presented the Federal The Court states that the “issue is whether right upon engage in confers a fundamental homosexuals to Constitution sodomy many the laws of the that still make and hence invalidates States Ante, very at 190. illegal long and have done so for a time.” such conduct sodomy, reality, however, prohibition hetero In it is the indiscriminate homosexual, present very long time.” that has been “for a sexual as well as Moreover, employs 3, 4, reasoning the Court See nn. and infra. it does support for it written as for provide would the same the statute as is narrowly as it is construed the Court. the statute 1787) (6th (“All Hawkins, ed. See, g., e. Pleas of the Crown 9 W. beast, seem to copulations, whether with man or come unnatural carnal law, sodomy, felony by the antient common which was under the notion burning; authors, according according to some with to punished, and Blackstone, alive”); others, burying 4 W. Commentaries . . . with *215 equally damning for was heterosexual That condemnation provided sodomy.4 special it no Moreover, and homosexual couples.5 exemption The license to and for married cohabit simply offspring produce legitimate did not include to permission conduct that was considered a sexual against nature.” “crime clearly history Georgia before us reveals
The
statute
prohibition
heterosexual,
as well as homo-
traditional
this
century,
point
sodomy.6
in the 20th
Indeed, at one
sexual,
permit
Georgia’s
certain sexual conduct
law was construed
though such conduct was
women even
homosexual
between
prohibited
history
the stat-
heterosexuals.7
between
proposition
majority
proof
as
utes cited
constitutionally protected,
ante,
192-194,
is not
nature, committed either with
against
crime
(discussing “the infamous
strictly
impartially proved,
ought
beast;
which
man or
a crime
strictly
impartially punished”).
and then as
(1803) (“This offence,
East,
con
Pleas of the Crown
E.
See
best,
knowledge
consists in a carnal
the least notice
cerning which
man,
by man with
or in the same
of nature
against the order
*25
committed
woman,
by man or woman
manner with
or
manner with
unnatural
(3d
1899)
ed.
McGregor, The Criminal Law 287
beast”); Hawley M.
J.
&
by
per
the order of nature
two
knowledge against
(“Sodomy
carnal
is the
being
a
. . . The offense
other,
with
beast.
or of a human
with each
sons
woman,
per
or between two male
a
a man and
may
committed between
be
beast”).
a
sons,
or a woman and
between a man
or
1893)
(2d
(“Sodomy,
§203
ed.
other
of Crimes
May, The Law
See J.
against nature,
crime
is the un
bestiality,
the
buggery,
and
called
wise
other,
being
or of a human
with
persons
each
two
with
copulation of
natural
man, by
with a
a man
a
by a man
with
may
committed
...
It
a beast.
wife,
by man with a
beast,
a
woman —his
a
or
beast,
by a woman with
or
accomplice”).
consent,
case,
she is an
if she
which
provided: “Sodomy
statute
Georgia
the current
predecessor of
nature, by
against the order of
man
knowledge and connection
the carnal
Code,
woman.”
Tit.
with
Ga.
unnatural manner
man,
same
with
(1861).
sodomy
heterosexual
prohibition of
was
This
1,
4, §4251
Pt.
State,
App.
21 Ga.
94 E.
See,
S.
g.,
e.
Comer
hortatory.
purely
sodomy).
heterosexual
(1917)
consensual
prosecution for
(affirming
(1939).
467,
Our
majority
governing
in a State has
First,
the fact that the
traditionally
particular practice
immoral is not
a
as
viewed
prac-
upholding
prohibiting
a law
reason
a sufficient
prohibiting
history
nor tradition could save law
tice; neither
miscegenation
Second,
from constitutional attack.9
individ-
concerning
by
persons,
intimacies
married
ual decisions
relationship,
pro-
physical
not intended
their
even when
protected
offspring,
“liberty”
form of
the Due
are a
duce
Griswold v.
of the Fourteenth Amendment.
Process Clause
(1965).
protec-
Moreover,
this
Connecticut,
by unmarried as well as mar-
tion extends to intimate choices
Carey
Population
persons.
International,
ried
Services
(1977);
Baird,
Eisenstadt v.
405 U. S.
431 U. S.
that,
majority
A review of the statutes cited
discloses
today,
majority
the vast
statutes do not differenti
*26
sodomy.
ate between homosexual and heterosexual
(1967).
Loving Virginia,
miscege
Interestingly,
See
388 U. S.
sodomy.
Hawley
a
See
&
nation was once treated as
crime similar
sodomy); id.,
Law,
(discussing
McGregor, The Criminal
crime of
miscegenation).
(discussing crime of
In consideration of
kind,
claims of this
the Court has em-
phasized
privacy,
the individual
in
interest
but its decisions
actually
have
been animated
an even more fundamental
years ago:
concern. As wrote some
“These cases do not deal with the individual’s interest in
protection
public
from unwarranted
attention, comment,
exploitation. They
deal, rather, with the individual’s
right
unusually important
to make certain
decisions that
family’s, destiny.
own,
will affect his
or his
The Court
implicating
has referred to such decisions as
‘basic val-
being
being dignified by
ues,’
‘fundamental,’
as
and as
history and tradition. The character of the Court’s lan-
guage
brings
origins
in these cases
to mind the
heritage
abiding
American
of freedom—the
interest
liberty
individual
that makes certain state intrusions on
the citizen’s
to decide how he will live his own life
by history,
respect
intolerable. Guided
our tradition of
dignity
for the
individual choice matters of con-
implicit
system,
science and the restraints
in the federal
judges
accepted
responsibility
federal
have
for rec-
ognition
protection
appropriate
these
Fitzgerald
Hospital,
cases.”
v. Porter Memorial
523 F.
cert,
(CA7 1975)(footnotes omitted),
2d
de-
nied,
Society every right encourage has its individual mem- particular expressing bers to follow traditions affection gratifying personal one another and their It, desires. may prohibit imposing course, an individual from his will on satisfy another to his own selfish interests. It also prevent interfering violating, an individual from with, or legally protected relationship, sanctioned and such as mar- riage. may explain advantages And it the relative and dis- advantages expression. of different forms of intimate But couples when individual married are isolated from observa- way they voluntarily others, tion which choose to conduct their intimate relations is a matter for them—not the *27 “liberty” that animated The essential decide.10 State —to Eisenstadt, development Griswold, like in cases of the law nonrepro- in surely Carey to embraces may offensive consider that others sexual conduct ductive, immoral. prior may establish cases thus seem, our as it
Paradoxical pre- may prohibit “the sacred within not that a State S., 381 U. Griswold, bedrooms,” cincts of marital Eisen- adults. unmarried heterosexual or, indeed, between perfectly clear it is events, In all S., at 453. stadt, totally prohibit Georgia the conduct not the State of that proscribed Georgia §by Criminal Code. of the 16-6-2 Georgia enforced as it is written— cannot be II If the statute protected prohibit of lib- a form is if the conduct it seeks Georgia’s majority erty citizens—the State the vast application justifying a selective the burden of must assume Georgia persons seeks to to whom Either the of its law. “liberty” apply the same interest do not have its statute why reason the State must be a have, or there that others may applicable apply generally permitted cer- law to apply persons not to others. that it does tain Although plainly unacceptable. possibility first is equal” meaning principle is “all men are created that of the every surely always free citizen must mean clear, it “liberty” of the that the members interest has the same majority standpoint individual, From the share. interest have same and the homosexual heterosexual narrowly, deciding life, and, more he will live his own how voluntary personal himself his conduct how he will Attorney Georgia’s concedes that statute Indeed, Georgia General couple. Tr.' applied a married See of Oral if would be unconstitutional couple “would be the statute to a married (stating application Arg. 8 privacy identified “right of marital as because of unconstitutional” Griswold”). Georgia passed the current statute Significantly, the Court decision Griswold. years after the Court’s three companions. his associations with State intrusion into the private equally conduct of either is burdensome. possibility similarly unacceptable. policy
The second A application supported by of selective must be a neutral and *28 legitimate something more substantial than a ha- interest — ignorance group. for, about, bitual dislike the disfavored Neither the State nor the Court has identified such inter- posited justification in est this case. The Court has as a for Georgia presumed majority the statute “the belief of a of the Georgia sodomy electorate that homosexual is immoral and unacceptable.” Georgia Ante, at 196. But the electorate expressed representatives has no such its en- instead, belief— presumably acted law that reflects the belief that all sod- omy unacceptable. pre- is immoral and Unless the Court is pared to conclude that such a law is it constitutional, rely product Legislature sup- Georgia on the work of the to port holding. Georgia single its For the statute does not out separate meriting special homosexuals as a class disfavored treatment. Georgia prosecutor does the
Nor, indeed, even believe that punished. this statute all homosexuals who violate should be respondent is from the fact This conclusion evident that the very formally acknowledged complaint case this has his engaged, and court that he has intends to continue yet engage, prohibited conduct, in the the State has elected process charges against As not to criminal him. Justice points Georgia’s prohibition pri- moreover, out, Powell vate, consensual has not been enforced for decades.11 in this the last nonenforcement, The record of case Attorney representa- decades, several belies the General’s (Powell, Ante, J., concurring). Arg. also Tr. of Oral n. See General) response Georgia Attorney (noting, ques (argument activity place private in a resi prosecution about “where the took tion 40’s”). dence,” the “last ease I can recall was back in the 1930’s or importance application of the State’s selective tions about the generally applicable its law.12 Georgia prosecutor Georgia and the thus Both statute any support completely provide the Court with fail to sodomy, simpliciter, consid- that homosexual conclusion unacceptable in that and that the State, conduct burden ered justifying application generally applicable a selective has been met. law
J—t l—l respondent complaint s The Court orders dismissal though prohibits sodomy; statute all even even State’s concededly though prohibition is unconstitutional with though post respect heterosexuals; and even State’s explanations application by the hoc for selective are belied very At it own actions. think clear at this least, State’s litigation respondent early stage alleged has a con- *29 sufficient to a motion to dismiss.13 stitutional claim withstand respectfully dissent. 12 is, course, possible purely symbolic a argue It that statute has a International, Carey Population Cf. Services 431 U. 678, 715, role. (1977) concurring part concurring J., judgment) (Stevens, n. (“The admittedly prosecution never brought fact the State has a under that appellants’ position purpose consistent with that the the statute ... is merely symbolic”). Georgia Attorney is the statute Since General written, however, n. supra, not even defend the statute as see does may possibly cannot rest on the notion that State the statute be defended symbolic message. its 13Indeed, stage, appears indiscriminately it that the au at this statute prosecution policy selective that neither limited the class thorizes class, persons nor all persons homosexual embraces but rather may arbitrarily prosecutor applies to be selected for rea those who that are revealed either in the of this case or in the text sons record true, although If that is is clear of the statute. text of statute meaning intolerably vague its “so enough, true evenhanded impossibility.” the law is a virtual Marks v. United enforcement of (1977) (Stevens, States, J., concurring part and dis part). senting