Facts—In August 1982 respondent was charged with violating a Georgia statute that had criminalized sodomy. He had committed this act with another male in the bedroom of his home, where they had been discovered by a police officer serving a warrant. Respondent Hardwick brought suit in the District Court challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The District Court affirmed; the Court of Appeals reversed.

Question—Does the Fourteenth Amendment confer a fundamental right to engage in sodomy and hence invalidate state laws that criminalize such conduct and have done so for a long time?

Decision—No.

Reasons—J. White (5–4). “We . . . register our disagreement with the Court of Appeals and with respondent that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy.” The cases enumerated by the Court of Appeals bear no resemblance “to the claimed constitutional right of homosexuals to engage in acts of sodomy.” Moreover, the claim made by this listing of cases “insulated from state proscription is unsupportable.” The Court is “quite unwilling” to announce that homosexuals have a fundamental right of sodomy. Neither in the doctrines implicit in the concept of ordered liberty” nor “deeply rooted in this nation’s history and tradition” is sodomy protected. Sodomy was a criminal offense at common law, forbidden by the original thirteen colonies, and with the adoption of the Fourteenth Amendment in 1868, all but five of the thirty-seven states in the Union had criminal sodomy laws. Today, twenty-four states plus the District of Columbia have criminalized sodomy. Such claims of freedom to engage in sodomy are “facetious.” Finally, the Court is not inclined to take a more “expansive view” of its “authority to discover new fundamental rights embedded in the due process clause.”

J. Blackmun’s dissent argued that this case was not about the right to sodomy but about the right to privacy, which he thought should be extended to homosexuals as well as to others.