BOWERS,  ATTORNEY GENERAL OF GEORGIA v.  HARDWICK  ET AL. 
 
                                   No. 85-140 
 
                       SUPREME COURT OF THE UNITED STATES 
 
           478 U.S. 186; 106 S. Ct. 2841; 92 L.Ed. 2d 140; 
                        54 U.S.L.W. 4919 
 
                                         
                            March 31, 1986, Argued   
                             June 30, 1986, Decided 
 
PRIOR HISTORY:   [***1] 
 
   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT. 
 
DISPOSITION: 760 F.2d 1202, reversed. 
 
SYLLABUS:  After being charged with violating the Georgia statute
criminalizing sodomy by committing that act with another adult male
in the bedroom of his home, respondent Hardwick (respondent)
brought suit in Federal District Court, challenging the
constitutionality of the statute insofar as it criminalized 
consensual sodomy.  The court granted the defendants' motion to
dismiss for failure to state a claim.  The Court of Appeals
reversed and remanded, holding that the Georgia statute violated
respondent's fundamental rights. 
 
   Held: The Georgia statute is constitutional.  Pp. 190-196. 
 
   (a) The Constitution does not confer a fundamental right upon
homosexuals to engage in sodomy.  None of the fundamental rights
announced in this Court's prior cases involving family
relationships, marriage, or procreation bear any resemblance to the
right asserted in this case.  And any claim that those cases 
stand for the proposition that any kind of private sexual conduct
between consenting adults is constitutionally insulated from state
proscription is unsupportable.  Pp. 190-191. 
 
   (b) Against  [***2]   a background in which many States have
criminalized sodomy and still do, to claim that a right to engage
in such conduct is "deeply rooted in this Nation's history and
tradition" or "implicit in the concept of ordered liberty" is, at
best, facetious.  Pp. 191-194. 
 
   (c) There should be great resistance to expand the reach of the
Due Process Clauses to cover new fundamental rights.  Otherwise,
the Judiciary necessarily would take upon itself further authority
to govern the country without constitutional authority.  The
claimed right in this case falls far short of overcoming this
resistance.  Pp. 194-195. 
 
   (d) The fact that homosexual conduct occurs in the privacy of
the home does not affect the result.  Stanley v. Georgia, 394 U.S.
557, distinguished.  Pp. 195-196. 
 
   (e) Sodomy laws should not be invalidated on the asserted basis
that majority belief that sodomy is immoral is an inadequate
rationale to support the laws. 
P. 196.       
 
COUNSEL: Michael E. Hobbs, Senior Assistant Attorney General of
Georgia, argued the cause for petitioner.  With him on the briefs
were Michael J. Bowers, Attorney General, pro se, Marion O. Gordon,
First Assistant Attorney General, and Daryl A.   [***3]   Robinson,
Senior Assistant Attorney General. 
 
   Laurence H. Tribe argued the cause for respondent Hardwick. 
With him on the brief were Kathleen M. Sullivan and Kathleen L.
Wilde. * 
 
   * Briefs of amici curiae urging reversal were filed for the
Catholic League for Religious and Civil Rights by Steven Frederick
McDowell; for the Rutherford Institute et al. by W. Charles
Bundren, Guy O. Farley, Jr., George M. Weaver, William B. Hollberg,
Wendell R. Bird, John W. Whitehead, Thomas O. Kotouc, and Alfred
Lindh; and for David Robinson, Jr., pro se. 
 
   Briefs of amici curiae urging affirmance were filed for the
State of New York et al. by Robert Abrams, Attorney General of New
York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Howard
L. Zwickel, Charles R. Fraser, and Sanford M. Cohen, Assistant
Attorneys General, and John Van de Kamp, Attorney General of 
California; for the American Jewish Congress by Daniel D. Levenson,
David Cohen, and Frederick Mandel; for the American Psychological
Association et al. by Margaret Farrell Ewing, Donald N. Bersoff,
Anne Simon, Nadine Taub, and Herbert Semmel; for the Association of
the Bar of the City of New York by Steven A. Rosen; for the
National Organization for Women by John S. L. Katz; and for the 
Presbyterian Church (U. S. A.) et al. by Jeffrey O. Bramlett. 
 
   Briefs of amici curiae were filed for the Lesbian Rights Project
et al. by Mary C. Dunlap; and for the National Gay Rights Advocates
et al. by Edward P. Errante, Leonard Graff, and Jay Kohorn.  [***4]

 
JUDGES: WHITE, J., delivered the opinion of the Court, in which
BURGER, C. J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. 
BURGER, C. J., post, p. 196, and POWELL, J., post, p. 197, filed
concurring opinions.  BLACKMUN, J., filed a dissenting opinion, in
which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 199. 
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 214. 
 
OPINIONBY: WHITE 
 
OPINION:   [*187]      [**2842]   JUSTICE WHITE delivered the
opinion of the Court. 
 
   In August 1982, respondent Hardwick (hereafter respondent) was
charged with violating the Georgia statute criminalizing   [*188] 
 sodomy n1 by committing that act with another adult male in the
bedroom of respondent's home.  After a preliminary hearing, the
District Attorney decided not to present the matter to the grand
jury unless further evidence developed. 
  
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   n1 Georgia Code Ann. @ 16-6-2 (1984) provides, in pertinent
part, as follows: 
 
   "(a) A person commits the offense of sodomy when he performs or
submits to any sexual act involving the sex organs of one person
and the mouth or anus of another. . . . 
 
   "(b) A person convicted of the offense of sodomy shall be
punished by imprisonment for not less than one nor more than 20
years. . . ." 
  
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[***5] 
 
   Respondent then brought suit in the Federal District Court,
challenging the constitutionality of the statute insofar as it
criminalized consensual sodomy. n2 He asserted that he was a
practicing homosexual, that the Georgia sodomy statute, as
administered by the defendants, placed him in imminent danger of 
arrest, and that the statute for several reasons violates the
Federal Constitution.  The District Court granted the defendants'
motion to dismiss for failure to state a claim, relying on Doe v.
Commonwealth's Attorney for the City of Richmond, 403 F.Supp. 1199
(ED Va. 1975), which this Court summarily affirmed, 425 U.S. 901  
[**2843]   (1976). 
  
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   n2 John and Mary Doe were also plaintiffs in the action.  They
alleged that they wished to engage in sexual activity proscribed by
@ 16-6-2 in the privacy of their home, App. 3, and that they had
been "chilled and deterred" from engaging in such activity by both
the existence of the statute and Hardwick's arrest.  Id., at 5. 
The District Court held, however, that because they had neither
sustained, nor were in immediate danger of sustaining, any direct
injury from the enforcement of the statute, they did not have
proper standing to maintain the action.  Id., at 18.  The Court of
Appeals affirmed the District Court's judgment dismissing the Does'
claim for lack of standing, 760 F.2d 1202, 1206-1207 (CA11 1985),
and the Does do not challenge that holding in this Court. 
 
   The only claim properly before the Court, therefore, is
Hardwick's challenge to the Georgia statute as applied to
consensual homosexual sodomy.  We express no opinion on the
constitutionality of the Georgia statute as applied to other 
acts of sodomy. 
  
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[***6] 
 
   [*189]   A divided panel of the Court of Appeals for the
Eleventh Circuit reversed.  760 F.2d 1202 (1985). The court first
held that, because Doe was distinguishable and in any event had
been undermined by later decisions, our summary affirmance in that
case did not require affirmance of the District Court.  Relying on
our decisions in Griswold v. Connecticut, 381 U.S. 479 (1965);
Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Georgia, 394
U.S. 557 (1969);  and Roe v. Wade, 410 U.S. 113 (1973), the court
went on to hold that the Georgia statute violated respondent's
fundamental rights because his homosexual activity is a private and
intimate association that is beyond the reach of state regulation
by reason of the Ninth Amendment and the Due Process Clause of the
Fourteenth Amendment.  The case was remanded for trial, at which, 
to prevail, the State would have to prove that the statute is
supported by a compelling interest and is the most narrowly drawn
means of achieving that end. 
 
   Because other Courts of Appeals have arrived at judgments
contrary to [***7]   that of the Eleventh Circuit in this case, n3
we granted the Attorney General's petition for certiorari
questioning the holding that the sodomy statute violates the
fundamental rights of homosexuals.  We agree with petitioner that
the Court of Appeals erred, and hence reverse its judgment. n4 
  
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   n3 See Baker v. Wade, 769 F.2d 289, rehearing denied, 774 F.2d
1285 (CA5 1985) (en banc); Dronenburg v. Zech, 239 U. S. App. D. C.
229, 741 F.2d 1388, rehearing denied, 241 U. S. App. D. C. 262, 746
F.2d 1579 (1984). 
 
   n4 Petitioner also submits that the Court of Appeals erred in
holding that the District Court was not obligated to follow our
summary affirmance in Doe. We need not resolve this dispute, for we
prefer to give plenary consideration to the merits of this case
rather than rely on our earlier action in Doe.  See Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 14 (1976); Massachusetts Board 
of Retirement v. Murgia, 427 U.S. 307, 309, n. 1 (1976); Edelman v.
Jordan, 415 U.S. 651, 671 (1974). Cf. Hicks v. Miranda, 422 U.S.
332, 344 (1975). 
  
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[***8] 
 
   [*190]   This case does not require a judgment on whether laws
against sodomy between consenting adults in general, or between
homosexuals in particular, are wise or desirable.  It raises no
question about the right or propriety of state legislative
decisions to repeal their laws that criminalize homosexual sodomy, 
or of state-court decisions invalidating those laws on state
constitutional grounds.  The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage
in sodomy and hence invalidates the laws of the many States that
still make such conduct illegal and have done so for a very long
time.  The case also calls for some judgment about the limits of 
the Court's role in carrying out its constitutional mandate. 
 
   We first register our disagreement with the Court of Appeals and
with respondent that the Court's prior cases have construed the
Constitution to confer a right of privacy that extends to
homosexual sodomy and for all intents and purposes have decided
this case.  The reach of this line of cases was sketched in Carey
v. Population Services International, 431 U.S. 678, 685 (1977).
Pierce v. Society of Sisters, 268 U.S. 510 (1925),  [***9]   and
Meyer v. Nebraska, 262 U.S. 390 (1923), were described as dealing
with child rearing and education; Prince v. Massachusetts, 321 U.S.
158 (1944), with family relationships; Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535 (1942), with procreation; Loving v.
Virginia, 388 U.S. 1 (1967), with marriage;  Griswold v. 
Connecticut, supra, and Eisenstadt v. Baird, supra, with
contraception; and Roe v. Wade, 410 U.S. 113   [**2844]   (1973),
with abortion.  The latter three cases were interpreted as
construing the Due Process Clause of the Fourteenth Amendment to
confer a fundamental individual right to decide whether or not to 
beget or bear a child.  Carey v. Population Services International,
supra, at 688-689. 
 
   Accepting the decisions in these cases and the above description
of them, we think it evident that none of the rights announced in
those cases bears any resemblance to the   [*191]   claimed
constitutional right of homosexuals to engage in acts of sodomy
that is asserted in this  [***10]   case.  No connection between
family, marriage, or procreation on the one hand and homosexual
activity on the other has been demonstrated, either by the Court of
Appeals or by respondent.  Moreover, any claim that these cases
nevertheless stand for the proposition that any kind of private
sexual conduct between consenting adults is constitutionally
insulated from state proscription is unsupportable.  Indeed, the
Court's opinion in Carey twice asserted that the privacy right,
which the Griswold line of cases found to be one of the 
protections provided by the Due Process Clause, did not reach so
far.  431 U.S., at 688, n. 5, 694, n. 17. 
 
   Precedent aside, however, respondent would have us announce, as
the Court of Appeals did, a fundamental right to engage in
homosexual sodomy.  This we are quite unwilling to do.  It is true
that despite the language of the Due Process Clauses of the Fifth
and Fourteenth Amendments, which appears to focus only on the
processes by which life, liberty, or property is taken, the cases
are legion in which those Clauses have been interpreted to have
substantive content, subsuming rights that to a great extent are
immune from federal  [***11]   or state regulation or proscription. 
Among such cases are those recognizing rights that have little or
no textual support in the constitutional language.  Meyer, Prince,
and Pierce fall in this category, as do the privacy cases from
Griswold to Carey. 
 
   Striving to assure itself and the public that announcing rights
not readily identifiable in the Constitution's text involves much
more than the imposition of the Justices' own choice of values on
the States and the Federal Government, the Court has sought to
identify the nature of the rights qualifying for heightened
judicial protection.  In Palko v. Connecticut, 302 U.S. 319, 325,
326 (1937), it was said that this category includes those
fundamental liberties that are "implicit in the concept of ordered
liberty," such that "neither   [*192] liberty nor justice would
exist if [they] were sacrificed." A different description of
fundamental liberties appeared in Moore v. East Cleveland, 431 
U.S. 494, 503 (1977) (opinion of POWELL, J.), where they are
characterized as those liberties that are "deeply rooted in this
Nation's history and tradition." Id., at 503  [***12]   (POWELL,
J.).  See also Griswold v. Connecticut, 381 U.S., at 506. 
 
   It is obvious to us that neither of these formulations would
extend a fundamental right to homosexuals to  engage in acts of
consensual sodomy. Proscriptions against that conduct have ancient
roots.  See generally Survey on the Constitutional Right to Privacy
in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525
(1986). Sodomy was a criminal offense at common law and was
forbidden by the laws of the original 13 States when they ratified
the Bill of Rights. n5 In 1868, when the   [**2845]   Fourteenth
Amendment was   [*193] ratified, all but 5 of the 37 States in the
Union had criminal sodomy laws. n6 In  fact, until 1961, n7 all 50
States outlawed sodomy, and today,   [**2846] 24 States and the
District of Columbia   [*194]   continue to provide criminal 
penalties for sodomy performed in private and between consenting
adults.  See Survey, U. Miami L. Rev., supra, at 524, n. 9. 
Against this background, to claim that a right to engage in such
conduct is "deeply rooted in this Nation's history and tradition"
or "implicit in the concept of ordered  [***13] liberty" is, at
best, facetious. 
  
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   n5 Criminal sodomy laws in effect in 1791:    
Connecticut: 1 Public Statute Laws of the State of Connecticut,
1808, Title LXVI, ch. 1, @ 2 (rev. 1672). 
 
   Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, @ 5
(passed 1719). 
 
   Georgia had no criminal sodomy statute until 1816, but sodomy
was a crime at common law, and the General Assembly adopted the
common law of England as the law of Georgia in 1784.  The First
Laws of the State of Georgia, pt. 1, p. 290 (1981). 
 
   Maryland had no criminal sodomy statute in 1791.  Maryland's
Declaration of Rights, passed in 1776, however, stated that "the
inhabitants of Maryland are entitled to the common law of England,"
and sodomy was a crime at common law.  4 W. Swindler, Sources and
Documents of United States Constitutions 372 (1975). 
 
   Massachusetts: Acts and Laws passed by the General Court of
Massachusetts, ch. 14, Act of Mar. 3, 1785. 
 
   New Hampshire passed its first sodomy statute in 1718.  Acts and
Laws of New Hampshire 1680-1726, p. 141 (1978). 
 
   Sodomy was a crime at common law in New Jersey at the time of
the ratification of the Bill of Rights.  The State enacted its
first criminal sodomy law five years later.  Acts of the Twentieth
General Assembly, Mar. 18, 1796, ch. DC, @ 7. 
 
   New York: Laws of New York, ch. 21 (passed 1787). 
 
   At the time of ratification of the Bill of Rights, North
Carolina had adopted the English statute of Henry VIII outlawing
sodomy.  See Collection of the Statutes of the Parliament of
England in Force in the State of North-Carolina, ch. 17, p. 314
(Martin ed. 1792). 
 
   Pennsylvania: Laws of the Fourteenth General Assembly of the
Commonwealth of Pennsylvania, ch. CLIV, @ 2 (passed 1790). 
 
   Rhode Island passed its first sodomy law in 1662.  The Earliest
Acts and Laws of the Colony of Rhode Island and Providence
Plantations 1647-1719, p. 142 (1977). 
 
   South Carolina: Public Laws of the State of South Carolina, p.
49 (1790). 
 
   At the time of the ratification of the Bill of Rights, Virginia
had no specific statute outlawing sodomy, but had adopted the
English common law.  9 Hening's Laws of Virginia, ch. 5, @ 6, p.
127 (1821) (passed 1776).  [***14] 
 
   n6 Criminal sodomy statutes in effect in 1868: 
 
   Alabama: Ala. Rev. Code @ 3604 (1867). 
 
   Arizona (Terr.): Howell Code, ch. 10, @ 48 (1865). 
 
   Arkansas: Ark. Stat., ch. 51, Art. IV, @ 5 (1858). 
 
   California: 1 Cal. Gen. Laws, para. 1450, @ 48 (1865). 
 
   Colorado (Terr.): Colo. Rev. Stat., ch. 22, @@ 45, 46 (1868). 
 
   Connecticut: Conn. Gen. Stat., Tit. 122, ch. 7, @ 124 (1866). 
 
   Delaware: Del. Rev. Stat., ch. 131, @ 7 (1893). 
 
   Florida: Fla. Rev. Stat., div. 5, @ 2614 (passed 1868) (1892). 
 
   Georgia: Ga. Code @@ 4286, 4287, 4290 (1867). 
 
   Kingdom of Hawaii: Haw. Penal Code, ch. 13, @ 11 (1869). 
 
   Illinois: Ill. Rev. Stat., div. 5, @@ 49, 50 (1845). 
 
   Kansas (Terr.): Kan. Stat., ch. 53, @ 7 (1855). 
 
   Kentucky: 1 Ky. Rev. Stat., ch. 28, Art. IV, @ 11 (1860). 
 
   Louisiana: La. Rev. Stat., Crimes and Offences, @ 5 (1856). 
 
   Maine: Me. Rev. Stat., Tit. XII, ch. 160, @ 4 (1840). 
 
   Maryland: 1 Md. Code, Art. 30, @ 201 (1860). 
 
   Massachusetts: Mass. Gen. Stat., ch. 165, @ 18 (1860). 
 
   Michigan: Mich. Rev. Stat., Tit. 30, ch. 158, @ 16 (1846). 
 
   Minnesota: Minn. Stat., ch. 96, @ 13 (1859). 
 
   Mississippi: Miss. Rev. Code, ch. 64, @ LII, Art. 238 (1857). 
 
   Missouri: 1 Mo. Rev. Stat., ch. 50, Art. VIII, @ 7 (1856). 
 
   Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal
Practice Acts, ch. IV, @ 44 (1866). 
 
   Nebraska (Terr.): Neb. Rev. Stat., Crim. Code, ch. 4, @ 47
(1866). 
 
   Nevada (Terr.): Nev. Comp. Laws, 1861-1900, Crimes and
Punishments, @ 45. 
 
   New Hampshire: N. H. Laws, Act. of June 19, 1812, @ 5 (1815). 
 
   New Jersey: N. J. Rev. Stat., Tit. 8, ch. 1, @ 9 (1847). 
 
   New York: 3 N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 5, @ 20 (5th
ed. 1859). 
 
   North Carolina: N. C. Rev. Code, ch. 34, @ 6 (1855). 
 
   Oregon: Laws of Ore., Crimes -- Against Morality, etc., ch. 7,
@ 655 (1874). 
 
   Pennsylvania: Act of Mar. 31, 1860, @ 32, Pub. L. 392, in 1
Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905). 
 
   Rhode Island: R. I. Gen. Stat., ch. 232, @ 12 (1872). 
 
   South Carolina: Act of 1712, in 2 Stat. at Large of S. C.
1682-1716, p. 493 (1837). 
 
   Tennessee: Tenn. Code, ch. 8, Art. 1, @ 4843 (1858). 
 
   Texas: Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed
1860). 
 
   Vermont: Acts and Laws of the State of Vt. (1779). 
 
   Virginia: Va. Code, ch. 149, @ 12 (1868). 
 
   West Virginia: W. Va. Code, ch. 149, @ 12 (1868). 
 
   Wisconsin (Terr.): Wis. Stat. @ 14, p. 367 (1839).  [***15] 
 
   n7 In 1961, Illinois adopted the American Law Institute's Model
Penal Code, which decriminalized adult, consensual, private, sexual
conduct.  Criminal Code of 1961, @@ 11-2, 11-3, 1961 Ill. Laws, pp.
1985, 2006 (codified as amended at Ill. Rev. Stat., ch. 38, paras.
11-2, 11-3 (1983) (repealed 1984)).  See American Law Institute,
Model Penal Code @ 213.2 (Proposed Official Draft 1962). 
  
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   Nor are we inclined to take a more expansive view of our
authority to discover new fundamental rights imbedded in the Due
Process Clause.  The Court is most vulnerable and comes nearest to
illegitimacy when it deals with judge-made constitutional law
having little or no cognizable roots in the language or design of
the Constitution.  That this is so was painfully demonstrated by
the face-off between the Executive and the Court in the 1930's, 
which resulted in the repudiation   [*195]   of much of the
substantive gloss that the Court had placed on the Due Process
Clauses of the Fifth and Fourteenth Amendments.  There should be,
therefore, great resistance to expand the substantive reach of
those Clauses, particularly  [***16]   if it requires redefining
the category of rights deemed to be fundamental.  Otherwise, the 
Judiciary necessarily takes to itself further authority to govern
the country without express constitutional authority.  The claimed
right pressed on us today falls far short of overcoming this
resistance. 
 
   Respondent, however, asserts that the result should be different
where the homosexual conduct occurs in the privacy of the home.  He
relies on Stanley v. Georgia, 394 U.S. 557 (1969), where the Court
held that the First Amendment prevents conviction for possessing
and reading obscene material in the privacy of one's home: "If the
First Amendment means anything, it means that a State has no
business telling a man, sitting alone in his house, what books he
may read or what films he may watch." Id., at 565. 
 
   Stanley did protect conduct that would not have been protected
outside the home, and it partially prevented  the enforcement of
state obscenity laws; but the decision was firmly grounded in the
First Amendment.  The right pressed upon us here has no similar
support in the text of the Constitution, and it does not qualify
for recognition  [***17]   under the prevailing principles for 
construing the Fourteenth Amendment.  Its limits are also difficult
to discern.  Plainly enough, otherwise illegal conduct is not
always immunized whenever it occurs in the home.  Victimless
crimes, such as the possession and use of illegal drugs, do not
escape the law where they are committed at home.  Stanley itself
recognized that its holding offered no protection for the
possession in the home of drugs, firearms, or stolen goods.  Id.,
at 568, n. 11. And if respondent's submission is limited to the
voluntary sexual conduct between consenting adults, it would be
difficult, except by fiat, to limit the claimed right to homosexual
conduct   [*196]   while leaving exposed to prosecution adultery,
incest, and other sexual crimes even though they are committed in
the home.  We are unwilling to start down that road. 
 
   Even if the conduct at issue here is not a fundamental right,
respondent asserts that there must be a rational basis for the law
and that there is none in this case other than the presumed belief
of a majority of the electorate in Georgia that homosexual sodomy
is immoral and unacceptable.  This is said to be an   [***18]  
inadequate rationale to support the law.  The law, however, is 
constantly based on notions of morality, and if all laws
representing essentially moral choices are to be invalidated under
the Due Process Clause, the courts will be very busy indeed.  Even
respondent makes no such claim, but insists that majority
sentiments about the morality of homosexuality should be declared
inadequate.  We do not agree, and are unpersuaded that   [**2847] 
the sodomy laws of some 25 States should be invalidated on this
basis. n8   
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   n8 Respondent does not defend the judgment below based on the
Ninth Amendment, the Equal Protection Clause, or the Eighth
Amendment. 
  
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   Accordingly, the judgment of the Court of Appeals is  Reversed. 
CONCURBY: BURGER; POWELL 
 
CONCUR: CHIEF JUSTICE BURGER, concurring. 
 
   I join the Court's opinion, but I write separately to underscore
my view that in constitutional terms there is no such thing as a
fundamental right to commit homosexual sodomy. 
 
   As the Court notes, ante, at 192, the proscriptions against
sodomy have very "ancient  [***19]   roots." Decisions of
individuals relating to homosexual conduct have been subject to
state intervention throughout the history of Western civilization. 
Condemnation of those practices is firmly rooted in
Judeao-Christian moral and ethical standards.  Homosexual sodomy
was a capital crime under Roman law.  See Code Theod. 9.7.6; Code
Just. 9.9.31.  See also D. Bailey, Homosexuality   [*197]   and the
Western Christian Tradition 70-81 (1975).  During the English
Reformation when powers of the ecclesiastical courts were
transferred to the King's Courts, the first English statute
criminalizing sodomy was  passed.  25 Hen. VIII, ch. 6.  Blackstone
described "the infamous crime against nature" as an offense of
"deeper malignity" than rape, a heinous act "the very mention of
which is a disgrace to human nature," and "a crime not fit to be
named." 4 W. Blackstone, Commentaries *215.  The common law of 
England, including its prohibition of sodomy, became the received
law of Georgia and the other Colonies.  In 1816 the Georgia
Legislature passed the statute at issue here, and that statute has
been continuously in force in one form or another since that time. 
To hold that the   [***20]   act of homosexual sodomy is somehow
protected as a fundamental right would be to cast aside millennia
of moral teaching. 
 
   This is essentially not a question of personal "preferences" but
rather of the legislative authority of the State.  I find nothing
in the Constitution depriving a State of the power to enact the
statute challenged here. 
 
   JUSTICE POWELL, concurring. 
 
   I join the opinion of the Court.  I agree with the Court that
there is no fundamental right -- i. e., no substantive right under
the Due Process Clause -- such as that claimed by respondent
Hardwick, and found to exist by the Court of Appeals.  This is not
to suggest, however, that respondent may not be protected by the
Eighth Amendment of the Constitution.  The Georgia statute at issue
in this case, Ga. Code Ann. @ 16-6-2 (1984), authorizes a court to
imprison a person for up to 20 years for a single private,
consensual act of sodomy.  In my view, a prison sentence for such
conduct -- certainly a sentence of long duration -- would create a
serious Eighth Amendment issue.  Under the Georgia statute a single
act of sodomy, even in the private setting of a home, is a [*198] 
 felony comparable in terms of the possible  [***21]   sentence
imposed to serious felonies such as aggravated battery, @ 16-5-24,
first-degree arson, @ 16-7-60, and robbery, @ 16-8-40. n1 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - - 
 
   n1 Among those States that continue to make sodomy a crime,
Georgia authorizes one of the longest possible sentences.  See Ala.
Code @ 13A-6-65(a)(3) (1982) (1-year maximum); Ariz. Rev. Stat.
Ann. @@ 13-1411, 13-1412 (West Supp. 1985) (30 days); Ark. Stat.
Ann. @ 41-1813 (1977) (1-year maximum); D. C. Code @ 22-3502 (1981)
(10-year maximum); Fla. Stat. @ 800.02 (1985) (60-day maximum); Ga.
Code Ann. @ 16-6-2 (1984) (1 to 20 years); Idaho Code @ 18-6605
(1979) (5-year minimum); Kan. Stat. Ann. @ 21-3505 (Supp. 1985) 
(6-month maximum); Ky. Rev. Stat. @ 510.100 (1985) (90 days to 12
months); La. Rev. Stat. Ann. @ 14:89 (West 1986) (5-year maximum);
Md. Ann. Code, Art. 27, @ 553-554 (1982) (10-year maximum); Mich.
Comp. Laws @ 750.158 (1968) (15-year maximum); Minn. Stat. @
609.293 (1984) (1-year maximum); Miss. Code Ann. @ 97-29-59 (1973)
(10-year maximum); Mo. Rev. Stat. @ 566.090 (Supp. 1984) (1-year 
maximum); Mont. Code Ann. @ 45-5-505 (1985) (10-year maximum); Nev.
Rev. Stat. @ 201.190 (1985) (6-year maximum); N. C. Gen. Stat. @
14-177 (1981) (10-year maximum); Okla. Stat., Tit. 21, @ 886 (1981)
(10-year maximum); R. I. Gen. Laws @ 11-10-1 (1981) (7 to 20
years); S. C. Code @ 16-15-120 (1985) (5-year maximum); Tenn. Code
Ann. @ 39-2-612 (1982) (5 to 15 years); Tex. Penal Code Ann. @
21.06 (1974) ($ 200 maximum fine); Utah Code Ann. @ 76-5-403 (1978)

(6-month maximum); Va. Code @ 18.2-361 (1982) (5-year maximum). 
  
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - 

   [***22] 
 
   [**2848]   In this case, however, respondent has not been tried,
much less convicted and sentenced. n2 Moreover, respondent  has not
raised the Eighth Amendment issue below.  For these reasons this
constitutional argument is not before us. 
  
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - 

   n2 It was conceded at oral argument that, prior to the complaint
against respondent Hardwick, there had been no reported decision
involving prosecution for private homosexual sodomy under this
statute for several decades.  See Thompson v. Aldredge, 187 Ga.
467, 200 S. E. 799 (1939). Moreover, the State has declined to
present the criminal charge against Hardwick to a grand jury, and 
this is a suit for declaratory judgment brought by respondents
challenging the validity of the statute.  The history of
nonenforcement suggests the moribund character today of laws
criminalizing this type of private, consensual conduct. Some 26
States have repealed similar statutes.  But the constitutional
validity of the Georgia statute was put in issue by respondents,
and for the reasons stated by the Court, I cannot say that conduct
condemned for hundreds of years has now become a fundamental right.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
[***23] 
 
DISSENTBY: BLACKMUN; STEVENS 
 
DISSENT:   [*199]   JUSTICE BLACKMUN, with whom JUSTICE BRENNAN,
JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. 
 
I

   This case is no more about "a fundamental right to engage in
homosexual sodomy," as the Court purports to declare, ante, at 191,
than Stanley v. Georgia, 394 U.S. 557 (1969), was about a
fundamental right to watch obscene movies, or Katz v. United
States, 389 U.S. 347 (1967), was about a fundamental right to place
interstate bets from a telephone booth.  Rather, this case is about
"the most comprehensive of rights and the right most valued by
civilized men," namely, "the right to be let alone." Olmstead v.
United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

 
   The statute at issue, Ga. Code Ann. @ 16-6-2 (1984), denies
individuals the right to decide for themselves whether to engage in
particular forms of private, consensual sexual activity.  The Court
concludes that @ 16-6-2 is valid essentially because "the laws of
. . . many States . . . still make such conduct illegal and have
done so for a very long time." Ante, at 190.  But the fact that the
moral judgments  [***24]   expressed by statutes like @ 16-6-2 may
be "'natural and familiar . . . ought not to conclude our judgment
upon the question whether statutes embodying them conflict with the
Constitution of the United States.'" Roe v. Wade, 410 U.S. 113, 117
(1973), quoting Lochner v. New York, 198 U.S. 45, 76 (1905)
(Holmes, J., dissenting).  Like Justice Holmes, I believe that
"[it] is revolting to have no better reason for a rule of law than 
that so it was laid down in the time of Henry IV.  It is still more
revolting if the grounds upon which it was laid down have vanished
long since, and the rule simply persists from blind imitation of
the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469
(1897). I believe we must analyze respondent Hardwick's claim in
the light of the values that underlie the constitutional right to
privacy.  If that right means anything, it means that, before
Georgia can prosecute its citizens for making choices about the
most intimate   [*200] aspects of their lives, it must do more than
assert that the choice they have made is an "'abominable crime not
fit to be named among Christians.'" Herring v. State, 119 Ga. 709,
721, 46 S. E. 876, 882 (1904).  [***25]  
  
   In its haste to reverse the Court of Appeals and hold that the
Constitution does not "[confer] a fundamental right upon
homosexuals to engage in sodomy," ante, at 190, the Court relegates
the actual statute being challenged to a footnote and ignores the
procedural posture of the case before   [**2849]   it. A fair
reading of the statute and of the  complaint clearly reveals that
the majority has distorted the question this case presents. 
 
   First, the Court's almost obsessive focus on homosexual activity
is particularly hard to justify in light of the broad language
Georgia has used. Unlike the Court, the Georgia Legislature has not
proceeded on the assumption that homosexuals are so different from
other citizens that their lives may be controlled in a way that
would not be tolerated if it limited the choices of those other
citizens.  Cf. ante, at 188, n. 2.  Rather, Georgia has provided 
that "[a] person commits the offense of sodomy when he performs or
submits to any sexual act involving the sex organs of one person
and the mouth or anus of another." Ga. Code Ann. @ 16-6-2(a)
(1984).  The sex or status of the persons who engage in the act is
irrelevant as a matter  [***26]   of state law.  In fact, to the
extent I can discern a legislative purpose for Georgia's 1968 
enactment of @ 16-6-2, that purpose seems to have been to broaden
the coverage of the law to reach heterosexual as well as homosexual
activity. n1 I therefore see no basis for the   [*201]   Court's
decision to treat this case as an "as applied" challenge to @
16-6-2, see ante, at 188, n. 2, or for Georgia's attempt, both in
its brief and at oral argument, to defend @ 16-6-2 solely on 
the grounds that it prohibits homosexual activity.  Michael
Hardwick's standing may rest in significant part on Georgia's
apparent willingness to enforce against homosexuals a law it seems
not to have any desire to enforce against heterosexuals.  See Tr.
of Oral Arg. 4-5; cf. 760 F.2d 1202, 1205-1206 (CA11 1985). But his
claim that @ 16-6-2 involves an unconstitutional intrusion into 
his privacy and his right of intimate association does not depend
in any way on his sexual orientation. 
  
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - - 
 
   n1 Until 1968, Georgia defined sodomy as "the carnal knowledge
and connection against the order of nature, by man with man, or in
the same unnatural manner with woman." Ga. Crim. Code @ 26-5901
(1933).  In Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799
(1939), the Georgia Supreme Court held that @ 26-5901 did not 
prohibit lesbian activity.  And in Riley v. Garrett, 219 Ga. 345,
133 S. E. 2d 367 (1963), the Georgia Supreme Court held that @
26-5901 did not prohibit heterosexual cunnilingus.  Georgia passed
the act-specific statute currently in force "perhaps in response to
the restrictive court decisions such as Riley," Note, The Crimes
Against Nature, 16 J. Pub. L. 159, 167, n. 47 (1967). 
  
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - 
[***27]       
 
   Second, I disagree with the Court's refusal to consider whether
@ 16-6-2 runs afoul of the Eighth or Ninth Amendments or the Equal
Protection Clause of the Fourteenth Amendment.  Ante, at 196, n. 8. 
Respondent's complaint expressly invoked the Ninth Amendment, see
App. 6, and he relied heavily before this Court on Griswold v.
Connecticut, 381 U.S. 479, 484 (1965), which identifies that 
Amendment as one of the specific constitutional provisions giving
"life and substance" to our understanding of privacy.  See Brief
for Respondent Hardwick 10-12; Tr. of Oral Arg. 33.  More
importantly, the procedural posture of the case requires that we
affirm the Court of Appeals' judgment if there is any ground on
which respondent may be entitled to relief.  This case is before us
on petitioner's motion to dismiss for failure to state a claim,
Fed. Rule Civ. Proc. 12(b)(6).  See App. 17.  It is a well-settled
principle of law that "a complaint should not be dismissed merely
because a plaintiff's allegations  do not support the particular
legal theory he advances, for the court is under a duty to examine
the complaint to determine if the allegations provide  [***28] 
for relief on any possible theory."   [*202]   Bramlet v. Wilson,
495 F.2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co.,
484 F.2d 767, 773 (CA7 1973); Due v. Tallahassee Theatres, Inc.,
333 F.2d 630, 631 (CA5 1964); United States v. Howell, 318 F.2d
162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal Practice and
Procedure @ 1357, pp. 601-602 (1969); see also Conley v. Gibson, 
355 U.S. 41, 45-46 (1957). Thus, even if respondent did not advance
claims based on the Eighth or Ninth Amendments, or on the  
[**2850]   Equal Protection Clause, his complaint should not be
dismissed if any of those provisions could entitle him to relief. 
I need not reach either the Eighth Amendment or the Equal
Protection Clause issues because I believe that Hardwick has stated
a cognizable claim that @ 16-6-2 interferes with constitutionally
protected interests in privacy and freedom of intimate association. 
But neither the Eighth Amendment nor the Equal Protection Clause is
so clearly irrelevant that a claim resting on either provision
should be peremptorily dismissed. n2 [***29]   The Court's  cramped
reading of the   [*203]   issue before it makes for a short
opinion, but it does little to make for a persuasive one. 
  
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - - 
 
   n2 In Robinson v. California, 370 U.S. 660 (1962), the Court
held that the Eighth Amendment barred convicting a defendant due to
his "status" as a narcotics addict, since that condition was
"apparently an illness which may be contracted innocently or
involuntarily." Id., at 667. In Powell v. Texas, 392 U.S. 514
(1968), where the Court refused to extend Robinson to punishment of
public drunkenness by a chronic alcoholic, one of the factors
relied on by JUSTICE MARSHALL, in writing the plurality opinion,
was that Texas had not "attempted to regulate appellant's behavior
in the privacy of his own home." Id., at 532. JUSTICE WHITE wrote
separately: 
 
   "Analysis of this difficult case is not advanced by
preoccupation with the label 'condition.' In Robinson the Court
dealt with 'a statute which makes the "status" of narcotic
addiction a criminal offense . . . .' 370 U.S., at 666. By 
precluding criminal conviction for such a 'status' the Court was
dealing with a condition brought about by acts remote in time from
the application of the criminal sanctions contemplated, a condition
which was relatively permanent in duration, and a condition of
great magnitude and significance in terms of human behavior and
values. . . .  If it were necessary to distinguish between 'acts' 
and 'conditions' for purposes of the Eighth Amendment, I would
adhere to the concept of 'condition' implicit in the opinion in
Robinson . . . .  The proper subject of inquiry is whether
volitional acts brought about the 'condition' and whether those
acts are sufficiently proximate to the 'condition' for it to be 
permissible to impose penal sanctions on the 'condition.'" Id., at
550-551, n. 2. 
 
   Despite historical views of homosexuality, it is no longer
viewed by mental health professionals as a "disease" or disorder. 
See Brief for American Psychological Association and American
Public Health Association as Amici Curiae 8-11.  But, obviously,
neither is it simply a matter of deliberate personal election. 
Homosexual orientation may well form part of the very fiber of an 
individual's personality.  Consequently, under JUSTICE WHITE's
analysis in Powell, the Eighth Amendment may pose a constitutional
barrier to sending an individual to prison for acting on that
attraction regardless of the circumstances.  An individual's
ability to make constitutionally protected "decisions concerning
sexual relations," Carey v. Population Services International, 431
U.S. 678, 711 (1977) (POWELL, J., concurring in part and 
concurring in judgment), is rendered empty indeed if he or she is
given no real choice but a life without any physical intimacy. 
 
   With respect to the Equal Protection Clause's applicability to
@ 16-6-2, I note that Georgia's exclusive stress before this Court
on its interest in prosecuting homosexual activity despite the
gender-neutral terms of the statute may raise serious questions of
discriminatory enforcement, questions that cannot be disposed of
before this Court on a motion to dismiss.  See Yick Wo v. Hopkins,
118 U.S. 356, 373-374 (1886). The legislature having decided that
the sex of the participants is irrelevant to the legality of the
acts, I do not see why the State can defend @ 16-6-2 on the ground
that individuals singled out for prosecution are of the same sex as
their partners.  Thus, under the circumstances of this case, a
claim under the Equal Protection Clause may well be available
without having to reach the more controversial question whether 
homosexuals are a suspect class.  See, e. g., Rowland v. Mad River
Local School District, 470 U.S. 1009 (1985) (BRENNAN, J.,
dissenting from denial of certiorari); Note, The Constitutional
Status of Sexual Orientation: Homosexuality as a Suspect
Classification, 98 Harv. L. Rev. 1285 (1985). 
  
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - 
[***30] 
 
   II 
 
   "Our cases long have recognized that the Constitution embodies
a promise that a certain private sphere of individual liberty will
be kept largely beyond the reach of government." Thornburgh v.
American College of Obstetricians & Gynecologists, 476 U.S. 747,
772 (1986). In construing the right to privacy, the Court has
proceeded along two somewhat distinct,   [*204]   albeit
complementary, lines.  First, it has recognized a privacy interest
with reference to certain decisions   [**2851]   that are properly
for the individual to make.  E. g., Roe v. Wade, 410 U.S. 113
(1973); Pierce v. Society of Sisters, 268 U.S. 510 (1925). Second,
it has recognized a privacy interest with reference to certain
places without regard for the particular activities in which the 
individuals who occupy them are engaged.  E. g., United States v.
Karo, 468 U.S. 705 (1984); Payton v. New York, 445 U.S. 573 (1980);
Rios v. United States, 364 U.S. 253 (1960). The case before us
implicates both the decisional and the spatial aspects of the right
to privacy.   [***31] 
 
   A 
 
   The Court concludes today that none of our prior cases dealing
with various decisions that individuals are entitled to make free
of governmental interference "bears any resemblance to the claimed
constitutional right of homosexuals to engage in acts of sodomy
that is asserted in this case." Ante, at 190-191.  While it is true
that these cases may be characterized by their connection to
protection of the family, see Roberts v. United States Jaycees, 
468 U.S. 609, 619 (1984), the Court's conclusion that they extend
no further than this boundary ignores the warning in Moore v. East
Cleveland, 431 U.S. 494, 501 (1977) (plurality opinion), against
"[closing] our eyes to the basic reasons why certain rights
associated with the family have been accorded shelter under the
Fourteenth Amendment's Due Process Clause." We protect those rights
not because they contribute, in some direct and material way, to
the general public welfare, but because they form so central a part
of an individual's life. "[The] concept of privacy embodies the
'moral fact that a person belongs to himself and not others nor to
society as a whole.'" Thornburgh v. American College of
Obstetricians & Gynecologists, 476 U.S., at 777, n. 5  [***32] 
(STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil.
&  Pub. Affairs 288-289 (1977).  And so we protect the decision
whether to   [*205] marry precisely because marriage "is an
association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial
or social projects." Griswold v. Connecticut, 381 U.S., at 486. We 
protect the decision whether to have a child because parenthood
alters so dramatically an individual's self-definition, not because
of demographic considerations or the Bible's command to be fruitful
and multiply.  Cf. Thornburgh v. American College of Obstetricians
& Gynecologists, supra, at 777, n. 6 (STEVENS, J., concurring). 
And we protect the family because it contributes so powerfully to
the happiness of individuals, not because of a preference for
stereotypical households.  Cf. Moore v. East Cleveland, 431 U.S., 
at 500-506 (plurality opinion).  The Court recognized in Roberts,
468 U.S., at 619, that the "ability independently to define one's
identity that is central to any concept of liberty"   [***33]  
cannot truly be exercised in a vacuum; we all depend on the
"emotional enrichment from close ties with others." Ibid. 
 
   Only the most willful blindness could obscure the fact that
sexual intimacy is "a sensitive, key relationship of human
existence, central to family life, community welfare, and the
development of human personality," Paris Adult Theatre I v. Slaton,
413 U.S. 49, 63 (1973); see also Carey v. Population Services
International, 431 U.S. 678, 685 (1977). The fact that individuals 
define themselves in a significant way through their intimate
sexual relationships with others suggests, in a Nation as diverse
as ours, that there may be many "right" ways of conducting those
relationships, and that much of the richness of a relationship will
come from the freedom an individual has to choose the form and
nature of these intensely   [**2852]   personal bonds.  See Karst,
The Freedom of Intimate Association, 89 Yale L. J. 624, 637 (1980);
cf. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe v. Wade, 410
U.S., at 153. 
 
   In a variety of circumstances we have recognized  [***34]   that
a necessary corollary of giving individuals freedom to choose  
[*206]   how to conduct their lives is acceptance of the fact that
different individuals will make different choices.  For example, in
holding that the clearly important state interest in public
education should give way to a competing claim by the Amish 
to the effect that extended formal schooling threatened their way
of life, the Court declared: "There can be no assumption that
today's majority is 'right' and the Amish and others like them are
'wrong.' A way of life that is odd or even erratic but interferes
with no rights or interests of others is not to be condemned
because it is different." Wisconsin v. Yoder, 406 U.S. 205, 223-224
(1972). The Court claims that its decision today merely refuses to
recognize a fundamental right to engage in homosexual sodomy; what
the Court really has refused to recognize is the fundamental
interest all individuals have in controlling the nature of their
intimate associations with others. 
 
    B 
 
   The behavior for which Hardwick faces prosecution occurred in
his own home, a place to which the Fourth Amendment attaches
special significance.  The Court's [***35]   treatment of this
aspect of the case is symptomatic of its overall refusal to
consider the broad principles that have informed our treatment of 
privacy in specific cases.  Just as the right to privacy is more
than the mere aggregation of a number of entitlements to engage in
specific behavior, so too, protecting the physical integrity of the
home is more than merely a means of protecting specific activities
that often take place there.  Even when our understanding of the
contours of the right to privacy depends on "reference to a
'place,'" Katz v. United States, 389 U.S., at 361 (Harlan, J.,
concurring), "the essence of a Fourth Amendment violation is 'not
the breaking of [a person's] doors, and the rummaging of his
drawers,' but rather is 'the invasion of his indefeasible right of
personal security, personal liberty and private property.'"
California v. Ciraolo, 476 U.S. 207, 226 (1986) (POWELL, J., 
dissenting),   [*207]   quoting Boyd v. United States, 116 U.S.
616, 630 (1886). 
 
   The Court's interpretation of the pivotal case of Stanley v.
Georgia, 394 U.S. 557 (1969), is entirely unconvincing.   [***36] 
Stanley held that Georgia's undoubted power to punish the public
distribution of constitutionally unprotected, obscene material did
not permit the State to punish the private possession of such
material.  According to the majority here, Stanley relied 
entirely on the First Amendment, and thus, it is claimed, sheds no
light on cases not involving printed materials.  Ante, at 195.  But
that is not what Stanley said.  Rather, the Stanley Court anchored
its holding in the Fourth Amendment's special protection for the
individual in his home: 
 
   "'The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness.  They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect.  They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations.' 
 
   . . . . 
 
   "These are the rights that appellant is asserting in the case
before us.  He is asserting the right to read or observe what he
pleases -- the right to satisfy his intellectual and emotional
needs in the privacy  [***37]   of his own home." 394 U.S., at
564-565, quoting Olmstead   [**2853]   v. United States, 277 U.S.,
at 478 (Brandeis, J., dissenting). 
 
   The central place that Stanley gives Justice Brandeis' dissent
in Olmstead, a case raising no First Amendment claim, shows that
Stanley rested as much on the Court's understanding of the Fourth
Amendment as it did on the First. Indeed, in Paris Adult Theatre I
v. Slaton, 413 U.S. 49 (1973), the Court suggested that reliance on
the Fourth   [*208]   Amendment not only supported the Court's
outcome in Stanley but actually was  necessary to it: "If obscene 
material unprotected by the First Amendment in itself carried with
it a 'penumbra' of constitutionally protected privacy, this Court
would not have found it necessary to decide Stanley on the narrow
basis of the 'privacy of the home,' which was hardly more than a
reaffirmation that 'a man's home is his castle.'" 413 U.S., at 66.
"The right of the people to be secure in their . . . houses,"
expressly guaranteed by the Fourth Amendment, is perhaps the most 
"textual" of the various constitutional  [***38]   provisions that
inform our understanding of the right to privacy, and thus I cannot
agree with the Court's statement that "[the] right pressed upon us
here has no . . . support in the text of the Constitution," ante,
at 195.  Indeed, the right of an individual to conduct intimate
relationships in the intimacy of his or her own home seems to 
me to be the heart of the Constitution's protection of privacy. 
 
   III 
 
   The Court's failure to comprehend the magnitude of the liberty
interests at stake in this case leads it to slight the question
whether petitioner, on behalf of the State, has justified Georgia's
infringement on these interests.  I believe that neither of the two
general justifications for @ 16-6-2 that petitioner has advanced
warrants dismissing respondent's challenge for failure to state a
claim. 
 
   First, petitioner asserts that the acts made criminal by the
statute may have serious adverse consequences for "the general
public health and welfare," such as spreading communicable diseases
or fostering other criminal activity.  Brief for Petitioner 37. 
Inasmuch as this case was dismissed by the District Court on the
pleadings, it is not surprising that the record before us is
[***39] barren of any evidence to support petitioner's claim. n3 In
light of the state of the record, I see   [*209]   no justification
for the Court's attempt to equate the private, consensual sexual
activity at issue here with the "possession in the home of drugs,
firearms, or stolen goods," ante, at 195, to which Stanley refused
to extend its protection.  394 U.S., at 568, n. 11. None of the
behavior so mentioned in Stanley can properly be viewed as 
"[victimless]," ante, at 195: drugs and weapons are inherently
dangerous, see, e. g., McLaughlin v. United States, 476 U.S. 16
(1986), and for property to be "stolen," someone must have been
wrongfully deprived of it.  Nothing in the record before the Court
provides any justification for finding the activity forbidden by @
16-6-2 to be  physically dangerous, either to the persons engaged 
in it or to others. n4 
  
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - - 
 
   n3 Even if a court faced with a challenge to @ 16-6-2 were to
apply simple rational-basis scrutiny to the statute, Georgia would
be required to show an actual connection between the forbidden acts
and the ill effects it seeks to prevent.  The connection between
the acts prohibited by @ 16-6-2 and the harms identified by
petitioner in his brief before this Court is a subject of hot 
dispute, hardly amenable to dismissal under Federal Rule of Civil
Procedure 12(b)(6).  Compare, e. g., Brief for Petitioner 36-37 and
Brief for David Robinson, Jr., as Amicus Curiae 23-28, on the one
hand, with People v. Onofre, 51 N. Y. 2d 476, 489, 415 N. E. 2d
936, 941 (1980); Brief for the Attorney General of the State of New
York, joined by the Attorney General of the State of California, as
Amici Curiae 11-14; and Brief for the American Psychological 
Association and American Public Health Association as Amici Curiae
19-27, on the other.  [***40] 
 
   n4 Although I do not think it necessary to decide today issues
that are not even remotely before us, it does seem to me that a
court could find simple, analytically sound distinctions between
certain private, consensual sexual conduct, on the one hand, and
adultery and incest (the only two vaguely specific "sexual crimes"
to which the majority points, ante, at 196), on the other.  For 
example, marriage, in addition to its spiritual aspects, is a civil
contract that entitles the contracting parties to a variety of
governmentally provided benefits.  A State might define the
contractual commitment necessary to become eligible for these
benefits to include a commitment of fidelity and then punish 
individuals for breaching that contract.  Moreover, a State might
conclude that adultery is likely to injure third persons, in
particular, spouses and children of persons who engage in
extramarital affairs.  With respect to incest, a court might well
agree with respondent that the nature of familial relationships 
renders true consent to incestuous activity sufficiently
problematical that a blanket prohibition of such activity is
warranted.  See Tr. of Oral Arg. 21-22. Notably, the Court makes no
effort to explain why it has chosen to group private, consensual
homosexual activity with adultery and incest rather than with
private, consensual heterosexual activity by unmarried persons or,
indeed, with oral or anal sex within marriage. 
  
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - 
[***41] 
 
   [*210]     [**2854]   The core of petitioner's defense of @
16-6-2, however, is that respondent and others who engage in the
conduct prohibited by @ 16-6-2 interfere with Georgia's exercise of
the "'right of the Nation and of the States to maintain a decent
society,'" Paris Adult Theatre I v. Slaton, 413 U.S., at 59-60,
quoting Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Warren, C.
J., dissenting).  Essentially, petitioner argues, and the Court
agrees, that the fact that the acts described in @ 16-6-2 "for
hundreds of years, if not thousands, have been uniformly condemned
as immoral" is a sufficient reason to permit a State to ban them
today.  Brief for Petitioner 19; see ante, at 190, 192-194, 196. 
 
   I cannot agree that either the length of time a majority has
held its convictions or the passions with which it defends them can
withdraw legislation from this Court's scrutiny.  See, e. g., Roe
v. Wade, 410 U.S. 113 (1973); Loving v. Virginia, 388 U.S. 1
(1967); Brown v. Board of Education, 347 U.S. 483 (1954). n5 As
Justice Jackson wrote so  eloquently  [***42]     [*211]   for the 
Court in West Virginia Board of Education v. Barnette, 319 U.S.
624, 641-642 (1943), "we apply the limitations of the Constitution
with no fear that freedom to be intellectually and spiritually
diverse or even contrary will disintegrate the social organization.
. . .  [Freedom] to differ is not limited to things that do not
matter much.  That would be a mere shadow of freedom.  The test of 
its substance is the right to differ as to things that touch the
heart of the existing order." See also Karst, 89 Yale L. J., at
627. It is precisely because the issue raised by this case touches
the heart of what makes individuals what they are that we should be
especially sensitive to the rights of those whose choices upset the
majority. 
  
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- - - - - - - 
 
   n5 The parallel between Loving and this case is almost uncanny. 
There, too, the State relied on a religious justification for its
law.  Compare 388 U.S., at 3 (quoting trial court's statement that
"Almighty God created the races white, black, yellow, malay and
red, and he placed them on separate continents. . . . The fact that
he separated the races shows that he did not intend for the races 
to mix"), with Brief for Petitioner 20-21 (relying on the Old and
New Testaments and the writings of St. Thomas Aquinas to show that
"traditional Judeo-Christian values proscribe such conduct"). 
There, too, defenders of the challenged statute relied heavily on
the fact that when the Fourteenth Amendment was ratified, most of
the States had similar prohibitions.  Compare Brief for Appellee in
Loving v. Virginia, O. T. 1966, No. 395, pp. 28-29, with ante, at 
192-194, and n. 6.  There, too, at the time the case came before
the Court, many of the States still had criminal statutes
concerning the conduct at issue. Compare 388 U.S., at 6, n. 5
(noting that 16 States still outlawed interracial marriage), with
ante, at 193-194 (noting that 24 States and the District of 
Columbia have sodomy statutes).  Yet the Court held, not only that
the invidious racism of Virginia's law violated the Equal
Protection Clause, see 388 U.S., at 7-12, but also that the law
deprived the Lovings of due process by denying them the "freedom of
choice to marry" that had "long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by
free men." Id., at 12. 
  
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[***43] 
 
   The assertion that "traditional Judeo-Christian values
proscribe" the conduct involved, Brief for Petitioner 20, cannot
provide an adequate justification for @ 16-6-2.    [**2855]   That
certain, but by no means all, religious groups condemn the behavior
at issue gives the State no license to impose their judgments on
the entire citizenry.  The legitimacy of secular legislation
depends instead on whether the State can advance some justification
for its law beyond its conformity to religious doctrine.  See, e.
g., McGowan v. Maryland, 366 U.S. 420, 429-453 (1961); Stone v.
Graham, 449 U.S. 39 (1980). Thus, far from buttressing his case,
petitioner's invocation of Leviticus, Romans, St. Thomas Aquinas,
and sodomy's heretical status during the Middle Ages undermines 
his suggestion that @ 16-6-2 represents a legitimate use of secular
coercive power. n6 A State can no more punish private behavior
because   [*212]   of religious intolerance than it can punish such
behavior because of racial animus. "The Constitution cannot control
such prejudices, but neither can it tolerate them.  Private biases
may be outside the reach of the law, but the  [***44] law cannot,
directly or indirectly, give them effect." Palmore v. Sidoti, 466 
U.S. 429, 433 (1984). No matter how uncomfortable a certain group
may make the majority of this Court, we have held that "[mere]
public intolerance or animosity cannot constitutionally justify the
deprivation of a person's physical liberty." O'Connor v. Donaldson,
422 U.S. 563, 575 (1975). See also Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432  (1985); United States Dept. of 
Agriculture v. Moreno, 413 U.S. 528, 534 (1973). 
  
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   n6 The theological nature of the origin of Anglo-American
antisodomy statutes is patent.  It was not until 1533 that sodomy
was made a secular offense in England.  25 Hen. VIII, ch. 6.  Until
that time, the offense was, in Sir James Stephen's words, "merely
ecclesiastical." 2 J. Stephen, A History of the Criminal Law of
England 429-430 (1883).  Pollock and Maitland similarly observed 
that "[the] crime against nature . . . was so closely connected
with heresy that the vulgar had but one name for both." 2 F.
Pollock & F. Maitland, The History of English Law 554 (1895).  The
transfer of jurisdiction over prosecutions for sodomy to the
secular courts seems primarily due to the alteration of
ecclesiastical jurisdiction attendant on England's break with the
Roman Catholic Church, rather than to any new understanding of the
sovereign's interest in preventing or punishing the behavior
involved.  Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797). 
  
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- - - - - - - 
[***45] 
 
   Nor can @ 16-6-2 be justified as a "morally neutral" exercise of
Georgia's power to "protect the public environment," Paris Adult
Theatre I, 413 U.S., at 68-69. Certainly, some private behavior can
affect the fabric of society as a whole.  Reasonable people may
differ about whether particular sexual acts are moral or immoral,
but "we have ample evidence for believing that people will not 
abandon morality, will not think any better of murder, cruelty and
dishonesty, merely because some private sexual practice which they
abominate is not punished by the law." H. L. A. Hart, Immorality
and Treason, reprinted in The Law as Literature 220, 225 (L.
Blom-Cooper ed. 1961).  Petitioner and the Court fail to see the
difference between laws that protect public sensibilities and those
that enforce private morality.  Statutes banning   [*213]   public
sexual activity are entirely consistent with protecting the
individual's liberty interest in decisions concerning sexual
relations: the same recognition that those decisions are intensely
private which justifies protecting them from governmental
interference can justify protecting individuals from unwilling
exposure to the sexual  [***46]   activities of others.  But the
mere fact that intimate behavior may be punished when it takes
place in public cannot dictate how States can regulate intimate
behavior that occurs in intimate places.  See Paris Adult Theatre
I, 413 U.S., at 66, n. 13 ("marital intercourse on a street corner
or a theater stage" can be forbidden despite the constitutional
protection identified in Griswold v. Connecticut, 381 U.S. 479
(1965)). n7   
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- - - - - - - 
 
   n7 At oral argument a suggestion appeared that, while the Fourth
Amendment's special protection of the home might prevent the State
from enforcing @ 16-6-2 against individuals who engage in
consensual sexual activity there, that protection would not make
the statute invalid.  See Tr. of Oral Arg. 10-11.  The suggestion
misses the point entirely.  If the law is not invalid, then the 
police can invade the home to enforce it, provided, of course, that
they obtain a determination of probable cause from a neutral
magistrate.  One of the reasons for the Court's holding in Griswold
v. Connecticut, 381 U.S. 479 (1965), was precisely the possibility,
and repugnancy, of permitting searches to obtain evidence regarding
the use of contraceptives.  Id., at 485-486. Permitting the kinds
of searches that might be necessary to obtain evidence of the
sexual activity banned by @ 16-6-2 seems no less intrusive, or
repugnant.  Cf. Winston v. Lee, 470 U.S. 753 (1985); Mary Beth G.
v. City of Chicago, 723 F.2d 1263, 1274 (CA7 1983). 
  
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- - - - - - - 
[***47] 
 
   [**2856]   This case involves no real interference with the
rights of others, for the mere knowledge that other individuals do
not adhere to one's value system cannot be a legally cognizable
interest, cf. Diamond v. Charles, 476 U.S. 54, 65-66 (1986), let
alone an interest that can justify invading the houses, hearts, and
minds of citizens who choose to live their lives differently. 
 
   IV 
 
   It took but three years for the Court to see the error in its
analysis in Minersville School District v. Gobitis, 310 U.S. 586
(1940),   [*214]   and to recognize that the threat to national
cohesion posed  by a refusal to salute the flag was vastly
outweighed by the threat to those same values posed by compelling
such a salute.  See West Virginia Board of Education v. Barnette,
319 U.S. 624 (1943). I can only hope that here, too, the Court soon
will reconsider its analysis and conclude that depriving
individuals of the right to choose for themselves how to conduct
their intimate relationships poses a far greater threat to the
values most deeply rooted in our Nation's history than tolerance 
of nonconformity could ever   [***48]   do.  Because I think the
Court today betrays those values, I dissent. 
 
   JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting. 
 
   Like the statute that is challenged in this case, n1 the
rationale of the Court's opinion applies equally to the prohibited
conduct regardless of whether the parties who engage in it are
married or unmarried, or are of the same or different sexes. n2
Sodomy was condemned as an odious and sinful type of behavior
during the formative period of the common law. n3   [*215]   That 
condemnation was equally damning for heterosexual and homosexual
sodomy. n4 Moreover, it   [**2857]   provided no special exemption
for married couples. n5 The license to cohabit and to produce
legitimate offspring simply did not include any permission to
engage in sexual conduct that was considered a "crime against
nature." 
  
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- - - - - - - 
 
   n1 See Ga. Code Ann. @ 16-6-2(a) (1984) ("A person commits the
offense of sodomy when he performs or submits to any sexual act
involving the sex organs of one person and the mouth or anus of
another"). 
 
   n2 The Court states that the "issue presented is whether the
Federal Constitution confers a fundamental right upon homosexuals
to engage in sodomy and hence invalidates the laws of the many
States that still make such conduct illegal and have done so for a
very long time." Ante, at 190.  In reality, however, it is the
indiscriminate prohibition of sodomy, heterosexual as well as 
homosexual, that has been present "for a very long time." See nn.
3, 4, and 5, infra.  Moreover, the reasoning the Court employs
would provide the same support for the statute as it is written as
it does for the statute as it is narrowly construed by the Court. 
[***49]       
 
   n3 See, e. g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed. 1787)
("All unnatural carnal copulations, whether with man or beast, seem
to come under the notion of sodomy, which was felony by the antient
common law, and punished, according to some authors, with burning;
according to others, . . . with burying alive"); 4 W. Blackstone,
Commentaries *215 (discussing "the infamous crime against nature,
committed either with man or beast; a crime which ought to be 
strictly and impartially proved, and then as strictly and
impartially punished"). 
 
 
   n4 See 1 E. East, Pleas of the Crown 480 (1803) ("This offence,
concerning which the least notice is the best, consists in a carnal
knowledge committed against the order of nature by man with man, or
in the same unnatural manner with woman, or by man or woman in any
manner with beast"); J. Hawley & M. McGregor, The Criminal Law 287
(3d ed. 1899) ("Sodomy is the carnal knowledge against the order of
nature by two persons with each other, or of a human being with a
beast. . . .  The offense may be committed between a man and a
woman, or between two male persons, or between a man or a woman and
a beast"). 
 
   n5 See J. May, The Law of Crimes @ 203 (2d ed. 1893) ("Sodomy,
otherwise called buggery, bestiality, and the crime against nature,
is the unnatural copulation of two persons with each other, or of
a human being with a beast. . . .  It may be committed by a man
with a man, by a man with a beast, or by a woman with a beast, or
by a man with a woman -- his wife, in which case, if she consent,
she is an accomplice"). 
  
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[***50] 
 
   The history of the Georgia statute before us clearly reveals
this traditional prohibition of heterosexual, as well as
homosexual, sodomy. n6 Indeed, at one point in the 20th century,
Georgia's law was construed to permit certain sexual conduct
between homosexual women even though such conduct was prohibited
between heterosexuals. n7 The history of the statutes cited by the
majority as proof for the proposition that sodomy is not
constitutionally protected, ante, at 192-194, [*216]   and nn. 5
and 6, similarly reveals a prohibition on heterosexual, as well as
homosexual, sodomy. n8 
  
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- - - - - - - 
 
   n6 The predecessor of the current Georgia statute provided:
"Sodomy is the carnal knowledge and connection against the order of
nature, by man with man, or in the same unnatural manner with
woman." Ga. Code, Tit. 1, Pt. 4, @ 4251 (1861).  This prohibition
of heterosexual sodomy was not purely hortatory.  See, e. g., Comer
v. State, 21 Ga. App. 306, 94 S. E. 314 (1917) (affirming
prosecution for consensual heterosexual sodomy). 
 
   n7 See Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939). 
[***51] 
 
   n8 A review of the statutes cited by the majority discloses
that, in 1791, in 1868, and today, the vast majority of sodomy
statutes do not differentiate between homosexual and heterosexual
sodomy. 
  
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   Because the Georgia statute expresses the traditional view that
sodomy is an immoral kind of conduct regardless of the identity of
the persons who engage in it, I believe that a proper analysis of
its constitutionality requires consideration of two questions:
First, may a State totally prohibit the described conduct by means
of a neutral law applying without exception to all persons subject
to its jurisdiction? If not, may the State save the statute by 
announcing that it will only enforce the law against homosexuals? 
The two questions merit separate discussion. 
 
   I 
 
   Our prior cases make two propositions abundantly clear.  First,
the fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice; neither history nor
tradition could save a law prohibiting miscegenation from
constitutional attack.   [***52]   n9 Second, individual decisions
by married persons, concerning the intimacies of their physical 
relationship, even when not intended to produce offspring, are a
form of "liberty" protected by the Due Process Clause of the
Fourteenth Amendment. Griswold v. Connecticut, 381 U.S. 479 (1965).
Moreover, this protection extends to intimate choices by unmarried
as well as married persons.  Carey v. Population Services
International, 431 U.S. 678 (1977); Eisenstadt v. Baird, 405 
U.S. 438 (1972). 
  
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- - - - - - - 
 
   n9 See Loving v. Virginia, 388 U.S. 1 (1967). Interestingly,
miscegenation was once treated as a crime similar to sodomy.  See
Hawley & McGregor, The Criminal Law, at 287 (discussing crime of
sodomy); id., at 288 (discussing crime of miscegenation). 
  
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- - - - - - - 
 
   [*217]   In consideration of claims of this kind, the Court has
emphasized the individual interest in privacy, but its decisions
have actually been animated by an even more fundamental  [***53]  
concern.  As I wrote some years ago: 
  
"These cases do not deal with the individual's interest in
protection from unwarranted public attention, comment, or
exploitation.    [**2858]   They deal, rather, with the
individual's  right to make certain unusually important decisions
that will affect his own, or his family's, destiny.  The Court has 
referred to such decisions as implicating 'basic values,' as being 
'fundamental,' and as being dignified by history and tradition. The
character of the Court's language in these cases brings to mind the
origins of the American heritage of freedom -- the abiding interest
in individual liberty that makes certain state intrusions on the
citizen's right to decide how he will live his own life
intolerable.  Guided by history, our tradition of respect for the 
dignity of individual choice in matters of conscience and the
restraints implicit in the federal system, federal judges have
accepted the responsibility for recognition and protection of these
rights in appropriate cases." Fitzgerald v. Porter Memorial
Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footnotes omitted),
cert. denied, 425 U.S. 916 (1976).  [***54] 
 
   Society has every right to encourage its individual members to
follow particular traditions in expressing affection for one
another and in gratifying their personal desires.  It, of course,
may prohibit an individual from imposing his will on another to
satisfy his own selfish interests.  It also may prevent an
individual from interfering with, or violating, a legally
sanctioned and protected relationship, such as marriage.  And it
may explain the relative advantages and disadvantages of different
forms of intimate expression.  But when individual married couples
are isolated from observation by others, the way in which they
voluntarily choose to conduct their intimate relations is a matter 
for them -- not the   [*218]   State -- to decide. n10 The
essential "liberty" that animated the development of the law in
cases like Griswold, Eisenstadt, and Carey surely embraces the
right to engage in nonreproductive, sexual conduct that others may
consider offensive or immoral. 
  
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- - - - - - - 
 
   n10 Indeed, the Georgia Attorney General concedes that Georgia's
statute would be unconstitutional if applied to a married couple. 
See Tr. of Oral Arg. 8 (stating that application of the statute to
a married couple "would be unconstitutional" because of the "right
of marital privacy as identified by the Court in Griswold"). 
Significantly, Georgia passed the current statute three years after
the Court's decision in Griswold. 
  
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- - - - - - - 
[***55] 
 
   Paradoxical as it may seem, our prior cases thus establish that
a State may not prohibit sodomy within "the sacred precincts of
marital bedrooms," Griswold, 381 U.S., at 485, or, indeed, between
unmarried heterosexual adults. Eisenstadt, 405 U.S., at 453. In all
events, it is perfectly clear that the State of Georgia may not
totally prohibit the conduct proscribed by @ 16-6-2 of the Georgia
Criminal Code. 
 
   II 
 
   If the Georgia statute cannot be enforced as it is written -- if
the conduct it seeks to prohibit is a protected form of liberty for
the vast majority of Georgia's citizens -- the State must assume
the burden of justifying a selective application of its law. 
Either the persons to whom Georgia seeks to apply its statute do
not have the same interest in "liberty" that others have, or there 
must be a reason why the State may  be permitted to apply
agenerally applicable law to certain persons that it does not apply
to others. 
 
   The first possibility is plainly unacceptable.  Although the
meaning of the principle that "all men are created equal" is not
always clear, it surely must mean that every free citizen has the
same interest  [***56]   in "liberty" that the members of the
majority share.  From the standpoint of the individual, the
homosexual and the heterosexual have the same interest in deciding
how he will live his own life, and, more narrowly, how he will
conduct himself in his personal and voluntary   [*219] 
associations with his companions.  State intrusion into the private
conduct of either is equally burdensome. 
 
   The second possibility is similarly unacceptable.  A policy of
selective application must be supported by a neutral and legitimate 
 [**2859]   interest -- something more substantial than a habitual
dislike for, or ignorance about, the disfavored group.  Neither the
State nor the Court has identified any such interest in this case. 
The Court has posited as a justification for the Georgia statute
"the presumed belief of a majority of the electorate in Georgia
that homosexual sodomy is immoral and unacceptable." Ante, at 196. 
But the Georgia electorate has expressed no such belief -- instead,
its representatives enacted a law that presumably reflects the
belief that all sodomy is immoral and unacceptable.  Unless the
Court is prepared to conclude that such a law is constitutional, it
may not  [***57]   rely on the work product of the Georgia
Legislature to support its holding.  For the Georgia statute does
not single out homosexuals as a separate class meriting special
disfavored treatment. 
 
   Nor, indeed, does the Georgia prosecutor even believe that all
homosexuals who violate this statute should be punished.  This
conclusion is evident from the fact that the respondent in this
very case has formally acknowledged in his complaint and in court
that he has engaged, and intends to continue to engage, in the
prohibited conduct, yet the State has elected not to process
criminal charges against him.  As JUSTICE POWELL points out,
moreover, Georgia's prohibition on private, consensual sodomy has
not been enforced for decades. n11 The record of nonenforcement, in
this case and in the last several decades, belies the Attorney
General's representations   [*220]   about the importance of the
State's selective application of its generally applicable law. n12 
  
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- - - - - - - 
 
   n11 Ante, at 198, n. 2 (POWELL, J., concurring).  See also Tr.
of Oral Arg. 4-5 (argument of Georgia Attorney General) (noting, in
response to question about prosecution "where the activity took
place in a private residence," the "last case I can recall was back
in the 1930's or 40's").  [***58] 
 
   n12 It is, of course, possible to argue that a statute has a
purely symbolic role.  Cf. Carey v. Population Services
International, 431 U.S. 678, 715, n. 3 (1977) (STEVENS, J.,
concurring in part and concurring in judgment) ("The fact that the
State admittedly has never brought a prosecution under the statute
. . . is consistent with appellants' position that the purpose of
the statute is merely symbolic").  Since the Georgia Attorney
General does not even defend the statute as written, however, see
n. 10, supra, the State cannot possibly rest on the notion that the
statute may be defended for its symbolic message. 
  
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- - - - - - - 
 
   Both the Georgia statute and the Georgia prosecutor thus
completely fail to provide the Court with any support for the
conclusion that homosexual  sodomy, simpliciter, is considered
unacceptable conduct in that State, and that the burden of
justifying a selective application of the generally applicable law
has been met. 
 
   III 
 
   The Court orders the dismissal of respondent's complaint even
though the State's statute prohibits all sodomy; even though 
[***59]   that prohibition is concededly unconstitutional with
respect to heterosexuals; and even though the State's post hoc
explanations for selective application are belied by the State's
own actions.  At the very least, I think it clear at this early
stage of the litigation that respondent has alleged a
constitutional claim sufficient to withstand a motion to dismiss.
n13   
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   n13 Indeed, at this stage, it appears that the statute
indiscriminately authorizes a policy of selective prosecution that
is neither limited to the class of homosexual persons nor embraces
all persons in that class, but rather applies to those who may be
arbitrarily selected by the prosecutor for reasons that are not
revealed either in the record of this case or in the text of the 
statute.  If that is true, although the text of the statute is
clear enough, its true meaning may be "so intolerably vague that
evenhanded enforcement of the law is a virtual impossibility."
Marks v. United States, 430 U.S. 188, 198 (1977) (STEVENS, J.,
concurring in part and dissenting in part). 
  
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   I respectfully dissent.