The rights qualifying for heightened judicial protection includes those fundamental liberties that are implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. A different description of fundamental liberties characterizes them as liberties that are deeply rooted in this Nation's history and tradition. Neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.
Respondent was charged with violating O.G.C.A. § 16-6-2 (1984), which criminalized sodomy. He was allegedly caught engaging in sodomy with another adult male in his own bedroom. After the district attorney decided not to present the matter to the grand jury unless further evidence developed, Hardwick challenged the statue’s constitutionality with the federal district court, insofar as it criminalized consensual sodomy. The court of appeals held that § 16-6-2 violated respondent's fundamental rights because his homosexual activity was a private and intimate association that was beyond the reach of state regulation by reason of U.S. Const. amends. XI and XIV.
Does the Constitution confer a right to homosexuals to engage in sodomy, disregarding the laws of many states which make the said conduct illegal?
The court held that there can be no constitutional protection for sodomy. The court has acted to protect rights which are not easily identifiable in the Constitution when these rights are implied in the concept of ordered liberty, or if these are rooted in the Nation’s history and tradition. Unfortunately, the act of sodomy did not meet either of these guidelines. Ultimately, the court held that the Due Process Clause did not confer any fundamental right on homosexuals to engage in consensual sodomy, even if the conduct occurred in the privacy of their own homes.