| Venue: | SCOTUS |
| Facts: | Georgia criminalizes sodomy. Bowers gets charged. |
| Posture: | DA decides not to present this to the grand jury unless "further evidence developed." Bowers files a federal suit for declaratory judgment that the statute is unconstitutional. Looks like Ct. App. thought privacy covered this. |
| Issue: | Does the federal consitution confer the right to practice sodomy upon homosexuals? |
| Holding: | Not likely. |
| Rule: | We are not going to go there. |
| Reasoning: | First of, none of the privacy precedent covers homosexual constitutional
rights.
Second, there's no real support for the notion that private sexual conduct is protected from state proscription. There have been laws criminalizing consensual sodomy since ancient times, and they exist in 24 states today-- it would be ridiculous to say that this right is "implicit in the concept of ordered liberty" or "deply rooted in this nation's history and tradition" And we're not about to make up a new right now. There are plenty of victimless crimes (drugs, e.g.) that are criminalized even when they occur in the privacy of the home. The protest that there's no rational basis fails in the sense that laws reflect concepts of morality-- if we're going to start invalidating laws based on moral choices, we're going to have our work cut out for us. |
| Dicta: | Powell (concurring): OK, so this isn't a fundamental right, but you
might be able to defeat it on 8A grounds-- a prison sentence
for this conduct would raise serious issues there. Of course,
here there has been no trial, let alone a conviction or sentence.
Blackmin (dissenting): the right to be left alone is strong. |