Bowers v. Hardwick/Concurrence Powell

by Lewis Franklin Powell, Jr.

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 felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, 16-5-24, first-degree arson, 16-7-60, and robbery, 16-8-40.^[1]

In this case, however, respondent has not been tried, much less convicted and sentenced.^[2] Moreover, respondent has not raised the Eighth Amendment issue below.

For these reasons this constitutional argument is not before us.

Notes

1. 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).
2. 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.