In Bowers v. Hardwick, the U.S. Supreme Court was asked to ad-dress the constitutionality of a Georgia criminal statute prohibiting certain private sexual practices by consenting adults. The Georgia citizens who brought the suit sought a judgment regarding the constitutionality of the statute on its face, but the Court resolutely avoided consideration of that issue. The Court took the view that the only federal question properly before it was the constitutional validity of the law as applied to private, sexual activity by consenting adults of the same gender, or what it called "homosexual sodomy." Having thus limited the scope of its constitutional inquiry, the Court refused to in validate the challenged application of the Georgia statute. In an opinion by Justice White, a closely divided Court concluded that the Federal Constitution does not "[confer] a fundamental right upon homosexuals to engage in sodomy," and thus cannot support judicial invalidation of "the laws of the many States" that "make such conduct illegal and have done so for a very long time." The Court further held that the "presumed belief" of a majority of the state's electorate "that homosexual sodomy is immoral and unacceptable" is not "an inadequate rationale to accept the law," and on this ground found the statute valid under the less stringent standard of minimum scrutiny, which required the Court to uphold the law if it could be said to have had some "rational basis."
Beyond the Privacy Principle,
Colum. L. Rev.
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