Harry Blackmun: Dissent in Bowers v. Hardwick

Explanation and Analysis of the Document

Following its decision in Roe v. Wade, the U.S. Supreme Court was confronted with numerous cases seeking to define and expand the privacy right recognized by Roe. Bowers v. Hardwick was one such case. Michael Hardwick was a gay man who had been charged with violating Georgia's criminal sodomy law for actions taken in his home. Although the criminal prosecution against him was eventually dropped, he challenged the law in federal court. The Court's opinion characterizes the case as about whether homosexuals have the constitutional right to engage in sodomy. It declares itself unwilling to find such a constitutional right. It finds that the cases involving reproduction and family issues are not relevant to homosexual conduct and sets forth a historical survey meant to demonstrate that homosexual sodomy has been illegal since ancient times.

Justice Harry Blackmun's dissent relies on the privacy rights recognized in the abortion cases as well as in other cases. It opens with the statement that, contrary to the majority's characterization, the case is about the right to be left alone and not about a fundamental constitutional right to engage in homosexual sodomy. Therefore, Blackmun contends, Hardwick's claim must be analyzed according to the constitutional right to privacy. That means that Georgia must come forward with more of a countervailing interest than its opinion that homosexual sodomy is an “‘abominable crime not fit to be named among Christians.’” The dissent finds that the case implicates both lines of privacy cases—those recognizing that individuals, not the state, have the right to make certain decisions and those recognizing that certain places are more private.

Blackmun gives short shrift to Georgia's defense that homosexual sodomy in a private home interferes with any rights Georgia and the country have to maintain a moral society. He cites Roe with regard to his unwillingness to agree that the length of time a majority has held an opinion or its passions can immunize statutes from the Court's scrutiny. In his opinion, by denying individuals the right to decide how to conduct their intimate relationships, the Court betrays the deeply rooted values of the country. He states his hope that the Court will soon realize and correct its mistake. Blackmun's hope was realized seventeen years later: In 2003 Bowers was overruled by the Supreme Court in the case of Lawrence v. Texas.