Bowers v. Harwick, 478 U.S. 186 (1986) p.592
substantive due process
After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy.
The Federal District Court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.
Whether the Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.
Right or procreation is not a fundemental right.
We are unpersuaded that the sodomy laws of some 25 States should be invalidated.
The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Cluase, the courts will be very busy indeed. No connection betwee family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.
There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance.
Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
Written by Justice White. He was one of the two dissenters in Roe. This was a general sodomy statute but White made this a homosexual issue.
sodomy - anal intercourse committed by a man with a man or woman; Carnal copulation in a manner against nature
Created on: Wednesday, November 10, 1999 at 17:39:31 (PST)