The Supreme Court held that the U.S. Constitution does not protect a right to engage in consensual homosexual conduct.
By 1986 the Supreme Court had established that the due process clauses of the Fifth and Fourteenth Amendments protect a fundamental right to generic privacy, especially in personal choices relating to marriage, procreation, and child rearing.
Proponents of gay rights argued that the right of privacy should be extended to provide protection for homosexual practices, which would invalidate all legislation proscribing such practices. Michael Hardwick, in the privacy of his own bedroom, was arrested for violating Georgia’s antisodomy law. Hardwick, with the assistance of the American Civil Liberties Union, used the arrest to challenge the constitutionality of the Georgia statute.
By a 5-4 vote, the Court upheld the statute. Speaking for the majority, Justice Byron R. White
In a concurring opinion, Justice Lewis F. Powell, Jr., wrote that the actual imposition of a criminal penalty for homosexual conduct would be contrary to the principles of the Eighth Amendment. After retiring, Powell told law students that he had “probably made a mistake” in voting with the majority.
Due process, substantive
Gay and lesbian rights
Griswold v. Connecticut
Privacy, right to
Romer v. Evans