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The case of Bowers v. Hardwick was brought to the Supreme Court in 1986, challenging the constitutionality of a Georgia statute criminalizing sodomy. The Court of Appeals for the Eleventh Circuit had reversed the District Court's decision, but the Supreme Court found that the Court of Appeals had erred. The issue was whether the Federal Constitution grants a fundamental right to homosexuals to engage in sodomy and invalidates state laws criminalizing such conduct. The Court rejected the argument that there is a fundamental right for homosexuals to engage in consensual sodomy and upheld the Georgia statute that criminalizes private, consensual sodomy. Justice Powell concurred but believed that a prison sentence of up to 20 years for a single act of sodomy could raise an Eighth Amendment issue. Justice Blackmun dissented and argued that the case is about the right to privacy and that the statute denies individuals the right to engage in private, consensual sexual activity.
The plaintiff argues that the Georgia statute criminalizing both heterosexual and homosexual activity violates his right to privacy and intimate association. The case involves the decisional and spatial aspects of the right to privacy and the Court should have considered whether the statute violates certain constitutional amendments and clauses. The behavior for which the plaintiff is being prosecuted occurred in his own home, which is protected by the Fourth Amendment. The Court should be sensitive to the rights of those whose choices upset the majority, especially when the issue at hand is fundamental to individual identity. The dissenting opinion argues that the Court's ruling applies equally to both married and unmarried couples, regardless of their sexual orientation. The Court's decisions regarding privacy claims are motivated by a fundamental concern for individual rights to make important decisions that affect their own or their family's destiny.
The State cannot ban private sodomy between consenting adults, regardless of marital status or sexual orientation. If the State selectively applies a law, it must have a neutral and legitimate interest, not just a dislike or ignorance of a certain group. The Georgia statute does not discriminate against homosexuals as a separate class. The state's explanations for selective application of the law are contradicted by its own actions and do not justify the statute's constitutionality. The Court dismisses the respondent's complaint, but the dissenting opinion believes that the respondent has alleged a constitutional claim that should not be dismissed at this early stage of litigation.
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