Bowers v. Hardwick

Supreme Court of the United States · 1986 · Constitutional Law

478 U.S. 186 (1986)

Overruled by Lawrence v. Texas (2003)

Updated July 21, 2026

Constitutional LawSubstantive Due ProcessRight to PrivacyDue Process Clausefundamental rightsprivacyhomosexual sodomyrational basis

Facts

In August 1982, respondent Hardwick was charged with violating Georgia's sodomy statute by committing that act with another adult male in the bedroom of his home. After a preliminary hearing, the district attorney decided not to present the matter to the grand jury unless further evidence developed. Hardwick then sued in federal district court, alleging he was a practicing homosexual, that the statute placed him in imminent danger of arrest, and that the statute was unconstitutional insofar as it criminalized consensual sodomy. The only claim before the Court was Hardwick's challenge to the statute as applied to consensual homosexual sodomy.

Issue

Whether the Federal Constitution confers a fundamental right upon homosexuals to engage in consensual sodomy, such that Georgia's law criminalizing that conduct is unconstitutional. Also, whether the statute lacks a rational basis if morality is the principal justification.

Rule

The Due Process Clause does not create a new fundamental right unless the asserted liberty is implicit in the concept of ordered liberty or deeply rooted in this Nation's history and tradition. Under that approach, there is no fundamental constitutional right to engage in consensual homosexual sodomy, and a state may criminalize such conduct on the basis of moral choices.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, Nolan Pierce seeks declaratory relief against a state statute that makes it a misdemeanor for two adult men to engage in consensual oral sex in a private apartment. Nolan argues the law violates a fundamental right to private adult sexual intimacy.

Under the controlling majority approach, how should a court most likely analyze Nolan's claim?

Explanation. The majority rejected characterizing the claim as a general right of private adult sexual intimacy. Instead, it asked whether the Constitution confers a fundamental right to engage in the particular conduct at issue. Under that history-and-tradition inquiry, the claimed right does not qualify as fundamental, so heightened scrutiny is unavailable.