BURGER, C.J., Concurring Opinion 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 Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law…. 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…. 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." W. Blackstone, Commentaries . 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 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.
Thomas Jefferson on Sodomy Sect. XIV. Whosoever shall be guilty of rape, polygamy, or sodomy* with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least. Peterson, Merrill D. "Crimes and Punishments" Thomas Jefferson: Writings Public Papers (Literary Classics of the United States, Inc. 1984) pp. 355, 356.
The Constitution also does not confer a fundamental right to barbecue on Sundays....