Bowers v. Hardwick, 478 U.S. 186 (1986): Sexuality/Sodomy: Dissenting Opinion


This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 191 , than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438 , 478 (1928) (Brandeis, J., dissenting).

The statute at issue, Ga.Code Ann. 16-6-2 (1984), denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The Court concludes that 16-6-2 is valid essentially because "the laws of . . . many States . . . still make such conduct illegal and have done so for a very long time." Ante at 190 . But the fact that the moral judgments expressed by statutes like 16-6-2 may be

"natural and familiar . . . ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Roe v. Wade, 410 U.S. 113 , 117 (1973), quoting Lochner v. New York, 198 U.S. 45 , 76 (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we must analyze respondent Hardwick's claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate [p*200] aspects of their lives, it must do more than assert that the choice they have made is an "`abominable crime not fit to be named among Christians.'" Herring v. State, 119 Ga. 709, 721, 46 S.E. 876, 882 (1904).


In its haste to reverse the Court of Appeals and hold that the Constitution does not "confe[r] a fundamental right upon homosexuals to engage in sodomy," ante at 190 , the Court relegates the actual statute being challenged to a footnote, and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.

First, the Court's almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. Cf. ante at 188 , n. 2. Rather, Georgia has provided that

[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.

Ga.Code Ann. 16-6-2(a) (1984). The sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose for Georgia's 1968 enactment of 16-6-2, that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity. [n1] I therefore see no basis for the [p*201] Court's decision to treat this case as an "as applied" challenge to 16-6-2, see ante at 188 , n. 2, or for Georgia's attempt, both in its brief and at oral argument, to defend 16-6-2 solely on the grounds that it prohibits homosexual activity. Michael Hardwick's standing may rest in significant part on Georgia's apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals. See Tr. of Oral Arg. 4-5; cf. 760 F.2d 1202, 1205-1206 (CA11 1985). But his claim that 16-6-2 involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation.

Second, I disagree with the Court's refusal to consider whether 16-6-2 runs afoul of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment. Ante at 196 , n. 8. Respondent's complaint expressly invoked the Ninth Amendment, see App. 6, and he relied heavily before this Court on Griswold v. Connecticut, 381 U.S. 479 , 484 (1965), which identifies that Amendment as one of the specific constitutional provisions giving "life and substance" to our understanding of privacy. See Brief for Respondent Hardwick 10-12; Tr. of Oral Arg. 33. More importantly, the procedural posture of the case requires that we affirm the Court of Appeals' judgment if there is any ground on which respondent may be entitled to relief. This case is before us on petitioner's motion to dismiss for failure to state a claim, Fed.Rule Civ.Proc. 12(b)(6). See App. 17. It is a well-settled principle of law that a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory. [p*202] Bramlet v. Wilson, 495 F.2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co., 484 F.2d 767, 773 (CA7 1973); Due v. Tallahassee Theatres, Inc., 333 F.2d 630, 631 (CA5 1964); United States v. Howell, 318 F.2d 162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal Practice and Procedure 1357, pp. 601-602 (1969); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, even if respondent did not advance claims based on the Eighth or Ninth Amendments, or on the Equal Protection Clause, his complaint should not be dismissed if any of those provisions could entitle him to relief. I need not reach either the Eighth Amendment or the Equal Protection Clause issues, because I believe that Hardwick has stated a cognizable claim that 16-6-2 interferes with constitutionally protected interests in privacy and freedom of intimate association. But neither the Eighth Amendment nor the Equal Protection Clause is so clearly irrelevant that a claim resting on either provision should be peremptorily dismissed. [n2] The Court's cramped reading of the [p*203] issue before it makes for a short opinion, but it does little to make for a persuasive one.


Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.

Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 , 772 (1986). In construing the right to privacy, the Court has proceeded along two somewhat distinct, [p*204] albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. E.g., Roe v. Wade, 410 U.S. 113 (1973); Pierce v. Society of Sisters, 268 U.S. 510 (1925). Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. E.g., United States v. Karo, 468 U.S. 705 (1984); Payton v. New York, 445 U.S. 573 (1980); Rios v. United States, 364 U.S. 253 (1960). The case before us implicates both the decisional and the spatial aspects of the right to privacy.


The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference "bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." Ante at 190-191 . While it is true that these cases may be characterized by their connection to protection of the family, see Roberts v. United States Jaycees, 468 U.S. 609 , 619 (1984), the Court's conclusion that they extend no further than this boundary ignores the warning in Moore v. East Cleveland, 431 U.S. 494, 501 (1977) (plurality opinion), against