In the case of Bowers v. Hardwick (478 U.S 186 (1986)), Hardwick was arrested and charged with homosexual sodomy. He challenged the law on the basis of the Due Process Clause of the 14th Amendment.
- The US Supreme Court upheld the law, saying that the Due Process Clause of the 14th Amendment is only applicable to the States if it protects a fundamental right, and that sodomy was not fundamental.
- See Duncan v. Louisiana (391 U.S. 145 (1968)).
- Hardwick probably did not make the proper legal argument. He should have argued that the law was unconstitutional based on the Equal Protection Clause. Since the law disproportionately affected homosexuals.
- Later, in Lawrence v. Texas (539 U.S. 558 (2003)), Lawrence argued against a similar sodomy law with an Equal Protection Clause and won.