In August of 1982, Michael Hardwick was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of Hardwick's home. Hardwick then brought suit in the Federal District Court, therefore challenging the constitutionality of the statute as it criminalized sodomy. Hardwick asserted that he was a practicing homosexual, that the Georgia statute, as administered by the defendants, placed him in imminent danger of arrest and that the statute for several reasons violates the Federal Constitution.
I oppose the Court of Appeals decision that Michael Hardwick's complaint was dismissed by evidence seen through rights readily identifiable in the Constitution's text involved much more that the imposition of the Justices' own choice of values on the States and the Federal Government, the Court sought to identify the nature of rights for heightened judicial protection. Such landmark court decisions as Palko v. Connecticut stated this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if any fundamental liberties were sacrificed." In Moore v. East Cleveland, fundamental liberties are characterized as those liberties that are "deeply rooted in this Nation's history and tradition."
Proscriptions against a fundamental right to homosexuals to engage in acts of consensual sodomy have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but five of the thirty-seven States in the Union had criminal sodomy laws. In fact, until 1961, all fifty States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.