478 U.S. 186 (1986), argued 31 Mar. 1986, decided 30 June 1986 by vote of 5 to 4; White for the Court, Blackmun and Stevens in dissent. In this case, the Supreme Court refused to extend the constitutional right of privacy to protect acts of consensual homosexual sodomy performed in the privacy of one's own home. The narrow majority led by Justice Byron White differentiated this case from earlier right-to-privacy decisions, saying that those decisions were limited to circumstances involving “family, marriage, or procreation”—things that bore “no connection” to homosexual activity (p. 191). Indeed, White claimed that the right to privacy was limited to the reach of those previous cases. He further claimed that the proposition that “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable” (p. 191). To argue that the right to engage in such conduct is a fundamental right” ‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious,” White wrote (p. 194). He pointed out that until 1961 all fifty states had outlawed sodomy and that twenty-four states and the District of Columbia continued to do so in 1986. He then rejected Hardwick's claim that such laws lack a rational basis.
White also differentiated the Hardwick case from Stanley v. Georgia (1969), arguing that Stanley should be understood as a First Amendment case that was not relevant to the issues raised in Hardwick. Although Stanley protected individuals from prosecution for possessing and reading obscene materials in the privacy of their homes, White stressed that it did not offer blanket protection to otherwise illegal conduct simply because it occurs in the home.
The present case evolved out of the arrest of Michael Hardwick, a gay Atlanta bartender, for performing oral sex with another man in his own bedroom. They were discovered by a police officer who had come to serve a warrant on Hardwick for not paying a fine for drinking in public. The officer was given permission to enter the house by another tenant who did not know whether Hardwick was at home. Under Georgia law, sodomy (defined as “any sexual act involving the sex organs of one person and the mouth or anus of another”) was a felony that could bring up to twenty years in prison.
Although the district attorney did not prosecute, he did not drop the charge. Hardwick then brought a civil suit challenging the law's constitutionality in federal court. The defendant was Georgia's attorney general, Michael J. Bowers. The district court granted Bowers’ motion to dismiss, but a divided panel of the Court of Appeals for the Eleventh Circuit reversed on the grounds that the Georgia statute violated Hardwick's fundamental rights. The Supreme Court then granted Bowers's petition for certiorari. Since the only claim before the Court dealt with homosexual sodomy, it expressed no opinion about the constitutionality of the Georgia statute as applied to acts of heterosexual sodomy.
Justice Lewis Powell was the crucial swing vote in the case. It appears that at conference he tentatively agreed to provide the fifth vote for striking down the Georgia statute, but then later changed his mind. Powell felt that a prison sentence for sodomy would create a serious Eighth Amendment issue that could be used to strike down the statute, but Hardwick had not been prosecuted. Thus, Powell was unable to apply the Eighth Amendment issue to this case, and he was apparently uncomfortable with using the right of privacy to strike down the statute. In October 1990, Powell told law students at New York University that he had “probably made a mistake” in ultimately voting the way he did. Nonetheless, he maintained that Hardwick was “a frivolous case” since no one had been prosecuted.