Case Analysis: Bower V. Hardwick

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Updated: May 17, 2021
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Bower v. Hardwick upheld the constitutionality of anti-sodomy law in Georgia, which criminalized sodomy between consenting adults. The contested issue is whether the constitutional right of privacy encompasses homosexual sodomy between two consenting adults. Hardwick, the respondent was charged for engaging in homosexual sodomy with an adult male in his home. The respondent filed a case in the Federal District Court to challenge the constitutionality of the Georgia anti-sodomy law. He asserted that the law violates the federal constitution and his right to privacy. The district attorney dismissed the charges stating that two men engaged in consensual sexual activity. Hardwick noted that, while the district attorney dropped the charges, he faces a risk of being charged when he engages in sodomy in Georgia. The eleventh circuit court of appeals ruled in favor of Hardwick, stating that anti-sodomy law violates the ninth and fourteenth amendments. Bower, Georgia Attorney General, appealed the ruling claiming that the decision was erroneous. The Supreme Court reversed the ruling and concluded that the constitution does not give citizens a fundamental right to homosexual sodomy. In a 5-4 decision, the majority declared that consensual homosexual sex is not a fundamental right.

I disagree with the White’s decision because it harms the homosexuals. Justice White held that the constitution does not protect homosexual sodomy and the act is not rooted in American tradition and history. Justice White emphasized that the court’s recent history of upholding privacy rights against government intrusion did not extend to homosexuals. His argument was flawed because it negatively perceived homosexuals and denied them the protection of privacy rights guaranteed by the constitution. He declined to take into account the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment claiming that doing so will make the court vulnerable and lose credibility. The refusal to consider the Fourteenth Amendment promoted negative stereotyping and discrimination of the homosexuals. White’s argument did not see homosexuals as individuals worthy of equal protection and respect. The judge equated homosexual sodomy to obscenity something that should be tolerated because it occurred between two consenting adults in private.

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White demonized the private lives of homosexual individuals and defined them as sexual beings who are not protected by privacy rights. He attached negative qualities to Hardwick based solely on his sexual orientation. According to White, it did not matter whether the right to privacy was violated as long as Hardwick was a homosexual. Georgia statute applied to both opposite-sex and same-sex individuals, but Justice White described the case as if it was an issue of whether intimacy association of homosexuals was constitutional. The judge deprived homosexual individuals the right to choose how to engage in intimate activities. Criminalizing homosexual sodomy demean the lives of gays and promote discrimination of this population. Homosexual individuals have the same liberty interest as heterosexuals, and thus a selective application of Georgia law is unconstitutional and violates equal protection law. Although Georgia law did not single homosexual individuals out it, it stigmatized this population.

Justice White stated that the fundamental right to privacy protects homosexual individuals is facetious. The fact that the Hardwick engaged in the act in a private home does not make it a fundamental right (3). White claimed that viewing homosexual sodomy in private homes as a fundamental right is expanding the due process clauses of the fourteenth amendment to new rights. The fundamental right is ambiguous, and there is no consensus on the acts that should be protected. However, Justice White’s opinion of sodomy as not a fundamental right is too narrow and erroneous because it promotes discrimination of the homosexuals. Right to privacy is a fundamental right, and all citizens deserve it regardless of their sexual orientation. Justice White misstated the issue by focusing on the fundamental right and ignoring the right to privacy. Homosexual adults between two consenting adults in private deserve the same protection as other private acts such as abortion because it does not harm others. The right to terminate a pregnancy is protected because it does not infringe the rights of others and the decision to make a parent change an individual self-definition dramatically. The fundamental right is a broad concept that protects all private acts that do not harm others. Citizens have a right to engage in homosexual sodomy in their homes without government interferences because the act is done in private. The constitution embodies that private sphere of individual liberty is out of government control. The promise extends to homosexual individuals. The rights to privacy cover all sexual matters, and thus homosexual sodomy deserves protection. The criminalization of homosexual sodomy infringes the fundamental right of intimate association, and thus it is not constitutional.

Justice White did not offer a sound argument because he criminalized sodomy when engaged in by homosexual individuals but not identical conduct by heterosexual couples. His opinion was contrary to precedent, inaccurate, inefficient and manipulative. Justice White claimed that it did not matter that Hardwick right to privacy was violated as long as he engaged in homosexual sodomy. The decision misunderstood the historical use of sodomy laws and normative reasons behind them. Sodomy laws were enacted for protection and morality by ensuring that sexual acts are heterosexual, consensual and procreative (4). This shows that sodomy laws were biased because they were disproportionately applied to homosexual. Although sodomy laws criminalized sodomy altogether, only homosexuals were prosecuted, and thus it violated equal protection clause. Justice White focused on the heterosexual normative reasoning only. He relied on the history of condemnation of homosexuality and supported his argument by citing historical and legal sources demonstrating that homosexual conduct are not in line with American tradition.

Justice White claimed that the fundamental rights to privacy as protected by the Fourteenth Amendment do not give gay adults the right to engage in sodomy, and thus the Georgia sodomy statute was legal. He also argued that the fundamental rights to privacy protect intimate aspects of marriage and procreation. White explained that the right to privacy should not be extended to consensual same-sex sexual activity because it has nothing to do with marriage, procreation and family. From this perspective, White contended that privacy rights guaranteed by the constitution are only legitimate when attached to marriage, procreation and family; hence homosexual individuals enjoy no constitutional protection. He viewed homosexuals as sexual beings who play no role in marriage, family and procreation. This line of reasoning is flawed because the right to privacy does not cover marriage only. White’s opinion suggests that the purpose of the right to privacy is to protect traditional social institutions such as marriage and procreation. White’s distort the meaning of the right to privacy because it protects intimate relationships without being married. I agree with dissenting Justice Blackmun that the right to privacy protects citizen’s liberty to make their decisions about sexual relationships. The right of privacy does not protect marriage and family but the freedom of individuals to enter into intimate associations and form the families of their choice. Besides, marriage and sex are more than making children.

White’s reasoning is erroneous because it constructed a negative image of homosexual individuals by disenfranchising them from intimate associations. I concur with the dissenting judge that the right to privacy protects the freedom of intimate association. Intimate associations have a lasting impact on individual identity. It is through and within these relationships that people exercise their capacities for self-definition and moral independence. Besides, it is through intimate associations that human beings find pleasure, care and emotional support. Therefore, individuals have a fundamental interest to exercise self-determination in their sexual relations with others. Voluntarily chosen intimate associations play an integral role in the formation of independent identity. Intimate associations must be chosen to contribute to the independent formation of identity. Given that individuals sustain and define themselves in a significant way through intimate associations with others, there are many right ways of conducting these relationships. Homosexuals will not find satisfying relationships and develop themselves if they are not given the freedom to choose intimacy that is not approved by the majority. The right to privacy and liberty gives citizens protection to decide on how to engage in sexual relationships and be free from relationship preferences of the majority.

In my opinion, the ruling harmed autonomy by failing to consider the individual free choice in sexual intimacy. The case shows the extent to which the government can use fundamental rights to interfere with personal lives. Georgia anti-sodomy law was seen as necessary for protection and morality, but it does not allow homosexuals to be autonomous persons with the right to privacy and liberty. I believe that an odd way of life should not be condemned as long as it does not interfere with the rights of others. White’s construction of homosexual identity and negative image create a barrier to social change. His inequitable use of Georgia anti-sodomy law by the Supreme Court promotes discrimination. The court failed to recognize homosexual privacy rights and treated the case as an issue of fundamental rights. The fundamental right is a broad concept that covers all private acts that do not harm the rights of others and thus it is illogical to apply the concept narrowly. The right to privacy prevents states from enacting laws that prevent people from choosing for themselves the intimate associations to engage with others. Justice White did not enforce equal protection of the laws, and thus Georgia statute harms homosexuals. Besides, a law that criminalizes intimate associations in homosexual individuals can derail the movement for gay equality. The fourteenth amendment protects personal decisions regarding intimacy associations from state interference as long as they do not harm others. White’s is likely to pose some challenges to government policies involving gay rights and privacy interests. Besides, court ruling will promote discrimination of people based on sexual orientation.


  1. Bowers v. Hardwick, No. 85-140, 1986.
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Case Analysis: Bower v. Hardwick. (2021, May 17). Retrieved from