Bowers V. Hardwick - Sodomy

• White 1986. Significance. Actual holding is fairly narrow: the states may, without violating substantive due process, proscribe homosexual sodomy. Case does not even resolve the issue of whether enforcement of such a ban on homosexual sodomy without similarly banning heterosexual sodomy would violate the Equal Protection Clause, or the issue of whether imprisonment for homosexual sodomy would violate the 8^th Amendment’s proscription of “cruel and unusual” punishment. Majority expressly declined to consider whether these constitutional arguments might have merit. (Powell stated in separate concurrence that a prison sentence for such conduct “would create a serious 8^th Amendment issue.”)

• Facts. Plaintiff, an avowed homosexual, challenged a Georgia statute making it a crime to perform or submit to “any sexual act involving the sex organs of one person and the mouth or anus of another . . .” The statute did not on its face distinguish between heterosexual and homosexual behavior. Violations were punishable by a prison sentence of up to 20 years.

• Statute upheld. By 5-4 vote, SCt upheld the statute against plaintiff’s substantive due process attack. The majority phrased the issue as being “whether the Federal USC confers a fundamental right upon homosexuals to engage in sodomy.”

• Precedent. Majority began by concluding that the cases recognizing a right of privacy for matters of family, marriage, or procreation did not bear “any resemblance” to the right of homosexuals to practice sodomy.

• Not a fundamental right. Apart from precedent, majority drew from the early privacy and incorporation decisions to craft a two-pronged test for whether conduct is protected by the right to privacy: in order for conduct to be protected as a “fundamental” right, the conduct must be either (1) implicit in the concept of ordered liberty” (Palko), or (2) “deeply rooted in this Nation’s history and tradition” (Moore v. East Clevland). Homosexual sodomy was not such a liberty under either of these formulations. In view of the fact that until 1961, all 50 states outlawed sodomy, and 24 still do, any claim that the right to practice sodomy is “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition” is “at best, facetious.”

• Privacy of home irrelevant. Plaintiff in Bowers asserted that whatever right the state might have to police public sexual practices, conduct occurring in the privacy of the home should be protected; he relied on Stanley v. Georgia, in which SCt had held that a person could not be convicted of possessing and reading obscene material in the privacy of his own home. The majority rejected this argument on the grounds that Stanley was based on the 1^st Amendment, not the 14^th Amendment.

1. Parade of Horribles. Majority believed that plaintiff’s Stanley-based argument, insofar as it claimed a constitutional protection for all voluntary sexual conduct between consenting adults in the home, would make it logically impossible to protect 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.” The majority was “unwilling to start down that road.”

• Reluctance to recognize new rights. Decision here showed a self-conscious concern about judicial overreaching, citing battle of 1930s on 1031. Not only did majority reject plaintiff’s constitutional claim, it went out of its way to make a broad statement about the proper role of the SCt in handling assertions that “new” fundamental rights should be recognized. “The SCt is most vulnerable and it comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the USC . . . There should be, therefore, great resistance to expand the substantive reach of [the Due Process Clauses of the 5^th and 14^th Amendments], particularly if it requires redefining the category of rights deemed to be fundamental.”

1. Does this concern justify the SCt’s decision?

2. Is SCt’s basis for distinguishing earlier decisions persuasive?

3. How would abortion fare under majority’s 2-part test here? White said that abortion would fail the test.

1. History/tradition: Roe itself refutes notion that abortion liberty is deeply rooted in the history or tradition of our people, as does the continuing and deep division of the people themselves over the question of abortion.

2. Ordered liberty: It seems apparent that a free, egalitarian, and democratic society does not presuppose any particular rule or set of rules with respect to abortion.

4. If SCt was so concerned about judicial overreaching, it did not make sense to recharacterize the case as one involving homosexual sodomy. The statute does not distinguish between homosexual and heterosexual sodomy. The sex of Hardwick’s sex partner was not an element of the crime that the prosecution had to prove.

• Concurrences:

• Burger. Relied on “Judeo-Christian moral and ethical standards.” Is this an appropriate source of judicial decision?

• Powell. Thought that, if Hardwick were actually sent to jail, that might be cruel and unusual punishment in violation of the 8^th Amendment.

• Blackmun’s dissent. Disagreed not only with result reached by majority, but also with the proper framework for analyzing the Georgia statute.

• What case is about. The case was not about “a fundamental right to engage in homosexual sodomy” as majority argued. Rather, it was about the much broader “right to be let alone.” The statute was not limited to homosexual sodomy; by its terms, heterosexual conduct was equally covered.

• Two strands to privacy right. Blackmun offered a different interpretation of the earlier privacy cases. Certain rights are protected “because they form so central a part of an individual’s life.” (1033) The dissenters noted that this “right to be let alone” has two different strands recognized in prior SCt decisions: (1) a right to be free of governmental interference in making certain private decisions (the “decisional” aspect of the privacy right); and (2) the right to privacy of certain places without regard to the activities that go on there (the “spatial” aspect). Georgia statute violated each of these statutes.

1. Decisional aspects. Decisional privacy guarantees “the freedom an individual has to choose the form and nature of these intensely personal bonds.” Argued that “sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of the human personality’” and that “much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.” The majority decision did not merely refuse to recognize a fundamental right to engage in homosexual sodomy – “what SCt has really refused to recognize is the fundamental interest of all individuals have in controlling the nature of their intimate associations with others.”

1. AK critique. This looks a lot like (most pejorative possible characterization of) Lochner. It requires judges to decide, with no apparent guidance from any authority outside of their own personal moral beliefs, what parts of an individual’s life are so central as to warrant protection.

2. Spatial privacy - Protection for the home. Furthermore, activities that take place in one’s own home deserve special protection. Blackmun argued that majority mischaracterized Stanley v. Georgia, which held that one could possess obscene material in one’s own home. In Stanley, SCt relied on D’s “right to satisfy his intellectual and emotional needs in the privacy of his own home.” Rebutting majority’s assertion that Stanley v. Georgia was based solely on 1^st Amendment rather than privacy grounds, dissenters contended that decision derived in large part from 4^th Amendment’s special protection of the home. Therefore, the right to be left alone in one’s house, because it is expressly granted by the 4^th Amendment, is “perhaps the most ‘textual’ of the various constitutional provisions that inform our understanding of the right to privacy . . . The right of an individual to conduct intimate relationships in the intimacy of his or her own home [is] the heart of the USC’s protection of privacy.”

1. AK critique. Even if Blackmun was right about this, though, the result would be a very modest victory for gays. Much of what is at stake in the gay rights issue is public equality and recognition, not simply a right to conduct secret liaisons undisturbed by the law. Spatial privacy is achievable in a closet.

3. State’s justification. Dissenters believed that, in light of strength of privacy interests implicated by statute here, state’s justifications for statute were inadequate. Neither the length of time a majority of society has objected to a practice, nor fact that many religious groups condemn the practice, can have any relevance to whether the state may ban it. Nor did the majority identify any concrete harm ensuing from private adult consensual activity such as that proscribed by the statute.

• Stevens’ dissent. Thought there is an equal protection problem in selective application of this law to gays. Emphasized that the statute banned both homosexual and heterosexual conduct, and banned it whether the parties were married or unmarried. Therefore, state must either (1) show why the statue is valid in its application to all types of banned conduct, or (2) show why selective enforcement against homosexuals alone does not constitute unconstitutional discrimination.

• Married couples. “When individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them – not the State – to decide.” Georgia itself conceded that the statute would be unconstitutional if applied to married couples because of the right to marital privacy identified in Griswold.

• Selective application. A policy of selective application of statute solely against homosexuals must be supported by “a neutral and legitimate interest – something more substantial than a habitual dislike for, or ignorance about, the disfavored group.” Neither Georgia nor the majority had identified any such interest in disfavoring unmarried homosexuals over married couples with respect to sodomy.

• Decisional privacy. This right to define oneself has become central to arguments that seek to expand the right to privacy.

• Jed Rubenfeld has argued that this argument reproduces assumptions that women and gays should not unquestionably accept.

• Homsexuality. Notion of homosexual identity begins with the notion of an essential division separating those who engage in homosexual as opposed to heterosexual sex. Moreover, that identity is assumed to be deviant. There is no notion of “heterosexual identity.” Persons don’t define themselves when they engage in heterosexual sex, because “heterosexuality is merely normality, and the heterosexual must make some further, more particular decisions – pursuing certain kinds of partners or forms of sexual pleasure – before he will be said to have defined his identity according to sexual criteria.”

• Abortion. Do we really want to say that a woman’s decision not to bear a child is a cataclysmic, life-defining event? Doesn’t that reproduce all the ideas about women’s natural destiny that we were trying to get away from?

• All of this suggests that even those who want to find constitutional arguments for the protection of abortion and/or homosexual sex ought to look somewhere other than the privacy doctrine for support.