Bowers v. Hardwick

LOCATION: Hardwick's Apartment

DOCKET NO.: 85-140
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 478 US 186 (1986)
ARGUED: Mar 31, 1986
DECIDED: Jun 30, 1986

Laurence H. Tribe - Argued the cause for the respondent
Michael E. Hobbs - Argued the cause for the petitioner

Facts of the case

Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.


Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

Media for Bowers v. Hardwick

Audio Transcription for Oral Argument - March 31, 1986 in Bowers v. Hardwick

Warren E. Burger:

The Court will hear arguments first this morning in Bowers against Hardwick.

Mr. Hobbs, you may proceed whenever you are ready.

Michael E. Hobbs:

Thank you.

Mr. Chief Justice, and may it please the Court:

This case presents the question of whether or not there is a fundamental right under the Constitution of the United States to engage in consensual private homosexual sodomy.

In 1982, Michael Hardwick was arrested and charged with the violation of Georgia's anti-sodomy statute for engaging in this conduct with a consenting adult in his home.

The case was never presented to the grand jury of Fulton County and no prosecution of Mr. Hardwick ensued.

However, in 1983, Mr. Hardwick, along with John and Mary Doe, filed a Section 1983 suit seeking injunctive relief and declaratory relief against the enforcement of Georgia's sodomy statute.

Harry A. Blackmun:

Was there a reason, Mr. Hobbs, that it wasn't presented to the grand jury?

Michael E. Hobbs:

Your Honor, the District Attorney of Fulton County, who would have handled that case--

Harry A. Blackmun:

That is Atlanta, isn't it?

Michael E. Hobbs:

--That is correct, Your Honor.

--indicated that it would not be presented to the grand jury until further evidence developed.

That is the only reason that I know that it was not presented.

Lewis F. Powell, Jr.:

Mr. Hobbs?

Michael E. Hobbs:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Is the statute enforced in Georgia?

Michael E. Hobbs:

Yes, Your Honor, the statute is enforced in Georgia.

Lewis F. Powell, Jr.:

How many prosecutions have there been in the last year or five years?

Michael E. Hobbs:

I could not tell the Court that.

I can only say that in our experience the statute is most frequently enforced in situations where the conduct takes place in more public or quasi-public areas.

Lewis F. Powell, Jr.:

Well, I should have framed my question more specifically.

In the context of the issue presented in this case where the activity took place in a private residence, has it ever been enforced?

Michael E. Hobbs:

It had been enforced.

I believe the last case that I can recall was back in the 1930's or 40's in the State of Georgia.

Appellate decisions.

Obviously, Your Honor, the Fourth Amendment impedes the ability of the State of Georgia to enforce the statute when the conduct takes place in the privacy of the home.

Nevertheless, it is our position that the Fourth Amendment restrictions should not have any bearing on whether or not there is a fundamental right to engage in this conduct.

Harry A. Blackmun:

Did you say the last prosecution was in the 30's or 40's?

Michael E. Hobbs:

The last reported Appellate decision concerning this type of conduct in a private setting.