Bowers v. Hardwick upheld the constitutionality of Georgia’s sodomy law that criminalized oral and anal sex in private between consenting adults. Despite precedents for penumbral privacy rights argued to be implicit in the due process clause of the Fourteenth Amendment to the United States Constitution, the majority opinion in Bowers v. Hardwick held that the Fourteenth Amendment did not imply a right to homosexual sex acts in private between consenting adults. Justice Byron White framed the legal question in terms of “a fundamental right upon homosexuals to engage in sodomy” and rejected any claim to such a right arguing that there is no right to such conduct “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”
Lawrence v. Texas struck down Texas’ sodomy law, overruling Bowers v. Hardwick, holding that its view of liberty was too narrow. The majority opinion in Lawrence v. Texas held that sex acts in private between consenting adults, whether homosexual or heterosexual, were a liberty protected by substantive due process under the Fourteenth Amendment. Justice Anthony Kennedy, who wrote the majority opinion, strove to cast doubt on the finding in Bowers v. Hardwick that homosexual sodomy is historically a widely condemned practice. Justice Sandra Day O’Connor also found that the Texas law violated equal protection guarantees. The Court concluded that the decision in Bowers v. Hardwick was incorrect, ought not to remain binding precedent and should be and now was overruled.
