Ruling Upholds Ban on Homosexual Conduct : Justices Refuse, 5 to 4, to Extend Protection of Constitution to Private, Consentual Sodomy

WASHINGTON —  A sharply divided Supreme Court refused Monday to expand the right to privacy to grant constitutional protection to private homosexual conduct between consenting adults.

In their first major ruling on a gay rights issue, the justices voted 5 to 4 to reverse a federal appellate court decision that said that a Georgia law making sodomy a crime violated fundamental rights and that such conduct in private was beyond state regulation.

The high court, dealing a major setback to gay rights and civil liberties groups, refused to give homosexuals the same right against state intrusion that it has granted in cases involving marriage, child-rearing, contraception and abortion.

“We think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy,” Justice Byron R. White wrote for the majority.

As recently as 1961, all states had laws forbidding sodomy, but now 26 states--including California--have legalized private homosexual activity between consenting adults. The court’s decision does not prevent further repeals of sodomy laws.

The justices did not rule on the constitutionality of sodomy statutes as applied to private heterosexual conduct--such as acts between married couples. Such laws will remain on the books, although they are rarely, if ever, enforced.

In a bristling dissent, Justice Harry A. Blackmun, taking the unusual step of reading his opinion from the bench, assailed the majority for opening the way for the state to “invade the houses, hearts and minds of citizens who choose to live their lives differently.”

Blackmun, joined by Justices William J. Brennan Jr., Thurgood Marshall and John Paul Stevens, declared:

“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 . . . .”

20 Years in Prison

Under the Georgia law, oral and anal sex acts between either homosexuals or heterosexuals are punishable by a prison term of up to 20 years. The law apparently had not been enforced against private activity in decades.

The case arose in 1982, when Michael Hardwick was arrested in Atlanta for committing sodomy with another man in his home. Police officers had gone to the residence to serve a summons on Hardwick in another case, and a third party who answered the door directed the officers to Hardwick’s bedroom.

Prosecuting authorities refused to press charges, but Hardwick challenged the law in a federal civil rights suit. A federal district judge dismissed the case, but a federal appellate panel reinstated the action, saying that the law could stand only if the state met the difficult legal burden of showing that it was justified by a “compelling interest.”

No ‘Fundamental Right’

White, in an opinion (Bowers vs. Hardwick, 85-140) joined by Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr., William H. Rehnquist and Sandra Day O’Connor, said the court was “quite unwilling” to declare a “fundamental right” to engage in homosexual sodomy.

The fact that such conduct may take place in the home is no reason to grant it constitutional protection, White said.

“Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home,” he wrote. “It would be difficult . . . to limit the claimed right to homosexual conduct 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.”

The majority noted that previous decisions had extended new protection only to those liberties that are “deeply rooted in this nation’s history and tradition.” To claim that homosexual conduct met that standard, White said, “is at best, facetious.”

Illegal in 24 States

Laws in this country against sodomy go back to the late 18th Century, he noted, and today 24 states and the District of Columbia still provide criminal penalties for sodomy performed privately between consenting adults.

The courts, White added, should resist invitations to declare sweeping new fundamental rights that lack solid constitutional foundation. “Otherwise, the judiciary necessarily takes to itself further authority to govern the country without express constitutional authority,” he said.

In recent years, the justices had turned aside several opportunities to make major rulings in gay rights cases. In 1967, the court held that homosexual aliens could be deported as “psychopathic personalities.” In 1976, without issuing an opinion, the court summarily affirmed a lower court decision upholding Virginia’s sodomy law.

Monday’s ruling was immediately condemned by gay rights and other groups.

Policing the Bedroom

Nan Hunter, director of the American Civil Liberties Union’s Lesbian-Gay Rights Project, said that the decision “allows Big Brother to police the bedrooms of millions of American citizens.”

Thomas B. Stoddard, executive director of the Lambda Legal Defense and Education Fund, called the ruling “intellectually indefensible,” concluding that it was based “upon the personal distaste of five justices of the court.”

The executive director of the National Gay Task Force, Jeff Levi, said he was “angry and disappointed” by what he called a “political” decision. “It is certainly something that all Americans should worry about,” he said.

Times staff writer Marlene Cimons contributed to this story.