Basically Law

Read the case here.

Background.  Police had entered the bedroom of Hardwick in 1982 to serve a summons (on a matter that was resolved) and witnessed Hardwick engaged in oral sex (sodomy) with another male.  Hardwick was arrested on charges of sodomy.  As the prosecutor presented his case to the grand jury, Hardwick sued in federal court on the grounds that the sodomy law was unconstitutional based on the Supreme Court's holdings in Griswold, Einsentadt, and Roe v. Wade.  The Court of Appeals agreed with Hardwick that the law was unconstitutional.  The case was appealed to the Supreme Court which overruled the Court of Appeals and upheld the constitutionality of Georgia's sodomy statute.

Court's Analysis.  The majority framed the case as one being a fundamental right to engage in homosexual sodomy.  The Court found no such fundamental right and went through a history of criminal law from Ancient Rome to old British law and early American Law that had criminalized sodomy.  Since sodomy had been illegal and against the Judeo-Christian morality of most cultures, it could not be said that individuals had a fundamental right to engage in homosexual sodomy.

The dissent vigorously opposed the majority's framing of the argument and its obsession with homosexual sex.  For one thing, the Georgia statute did not apply to homosexual sex alone on its face.  In fact, heterosexual sex that involved that involved the mouth or anus would run afoul of the Georgia statute - a fact the majority conveniently forgot.  The dissent also noted that the majority conveniently ignored the Court's precedents in previous privacy and liberty cases.

My Analysis.  After the Supreme Court's decision in Roe v. Wade, this case should have been a no-brainer.  There is no reason why a woman should have a fundamental liberty and privacy right to decide to have an abortion but two adults cannot engage in consensual sexual acts in the privacy of their homes.  This is one of the Court's most wrong decisions in its history (but not as evil as others since sodomy laws are tough to enforce).

This case also demonstrates the hypocracy of "conservative" justices who go after "activist" justices and claim that they are just following the law.  Clearly, conservatives who had a problem with gay individuals decided to incorrectly frame the case and the law at issue for a desired result.  The Georgia statute at issue reads:

[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

There is nothing in the statute that exclusively makes it applicable only between two men.  If a husband and wife who were engage in oral sex in the privacy of their bedroom had been caught and prosecuted under this statute I can almost guarantee the Court would have ruled differently.  As the Court ruled in Dale v. BSA the decision was guided more by certain justices view of homosexuals than what the law would dictate.

I seriously doubt that most Americans (even in colonial times) believe that individuals do have the right to engage in consensual sexual relations in private.  At the same time, the Court's reliance on what was illegal throughout history to determine what is a fundamental right is flawed.  Some cultures and legal systems did not penalize sodomy.  In fact the Napoleonic Code of 1803 decriminalized sodomy in France and throughout Europe (who adopted the Code).  That fact escaped the majority's analysis.  Further, the Constitution and the rights conferred therein trump any previous laws that continue on.  To assume that everything before the Constitution is automatically constitutional is ludicrous.  Further, it is ridiculous to assume that anything that was universally illegal means that it cannot be a fundamental right.  Universal suffrage was pretty much non-existent at the time of the Constitution but we consider that a fundamental right.

One last note, it is interesting that the majority does not really go into the facts of the case because they are disturbing.  What are the police doing in someone's house while people are engaging in consensual oral sex.  I am sure the Court does not believe that the officer saw the act through an opening in the door.  Instead, the officer, who has some personal animus against Hardwick (and probably gays in general), barged in - and illegally so.