From: Sam Damon Subject: Gays & The Constitution / Hardwick Case Date: Mon, 9 Oct 1995 20:53:07 -0400 (edt) Here's an analysis of what the Supreme Court said about sexual privacy. Regards, Sam Thankful that his Harvard-trained ex left many law books behind when she abandoned him one cold wintery night, leaving him crying his eyes out on his frilly pink satin pillow, and irreversibly staining his beloved teddy bear with pink dye. ======== A person's sexual conduct (apart from any issues of procreation or family life) may in some instances be entitled to substantive due process protection. However, THE SUPREME COURT HAS REFRAINED FROM ESTABLISHING ANY GENERAL PROTECTION OF ADULT CONSENSUAL SEXUAL ACTIVITY. Indeed, the one major Supreme Court decision in this area, one involving homosexual sodomy, indicates that the present Court will take a highly restrictive view of what substantive due process protection, if any, should be given to adult consensual sexual acts. 1. HOMOSEXUAL SODOMY: The case involving homosexual sodomy was Bowers v. Hardwick, 478 U.S. 186 (1986). In that case, the 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! 2. STATUTE UPHELD: By a 5-4 vote the Court in Bowers upheld the statute against the plaintiff's substantive due process attack. The majority phrased the issue as being "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy..." a. PRECEDENT: The 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. b. NOT A FUNDAMENTAL RIGHT: Apart from precedent, the majority asserted that the Court has regarded and should regard as "fundamental" only those liberties that are either "implicit in the concept of ordered liberty" (citing Palko v. Connecticut) or "deeply rooted in this Nation's history and tradition" (citing Moore v. East Cleveland). Homosexual sodomy was not such a liberty under either of these formulations, the majority found. 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." c. PRIVACY OF HOME IRRELEVANT: The 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 the Court 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 First Amendment, not the Fourteenth. i. "PARADE OF HORRIBLES": The majority believed that plaintiff's Stanley-based argument, insofar as it claimed a const 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." 3. RELUCTANCE TO RECOGNIZE NEW RIGHTS: Not only did the Bowers majority reject the plaintiff's constitutional claim, it went out of its way to make a broad statement about the proper role of the Court in handling assertions that "new" fundamental rights should be recognized. "The Court 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 Constitution. ... There should be, therefore, great resistance to expand the substantive reach of [the Due Process Clauses of the Fifth and Fourteenth Amendments], particularly if it requires redefining the category of rights deemed to be fundamental." 4. BLACKMUN'S DISSENT: A dissent by Justice Blackmun (in which Brennan, Marshall, and Stevens joined) disagreed not only with the result reached by the majority but with the proper framework for analyzing the Georgia statute. a. WHAT CASE IS ABOUT: The case was not about "a fundamental right to engage in homosexual sodomy" as the majority argued, said the dissenters. 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. b. TWO STRANDS TO PRIVACY RIGHT: The dissenters then noted that this "right to be let alone" has two different strands recognized in prior Court 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). The dissenters believed that the Georgia statute violated each of these aspects. i. DECISIONAL ASPECTS: As to the "decisional" aspect, the dissenters contended that "sexual intimacy is 'a sensitive, key relationship of human existence, central to family life, community welfare, and the development of the human personality'" (citing Paris Adult Theater I) 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 the Court has really refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others." ii. PROTECTION FOR THE HOME: Furthermore, activities that take place in one's own home deserve special protection, the dissenters argued. Rebutting the majority's assertion that Stanley v. Georgia was based solely on First Amendment rather than privacy grounds, the dissenters contended that that decision derived in large part from the Fourth 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 Fourth 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 Constitution's protection of privacy." iii. STATE'S JUSTIFICATION: The dissenters believed that, in light of the strength of the privacy interests implicated by the statute, the state's justifications for the statute were inadequate. Neither the length of time a majority of society has objected to a practice, nor the 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 pro scribed by the statute. 5. STEVENS' DISSENT: A separate dissent, by Justice Stevens (joined by Brennan and Marshall) emphasized that the statute banned both homosexual and heterosexual conduct, and banned it whether the parties were married or unmarried. Therefore, Stevens contended, the state must either: (1) show why the statute 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. a. MARRIED COUPLES: As to the first alternative, Stevens argued that "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." Indeed, Georgia itself conceded that the statute would be unconstitutional if applied to married couples because of the right to marital privacy identified in Griswold v. Connecticut. b. SELECTIVE APPLICATION: As for the second alternative, a policy of selective application (application of the 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." In Stevens' opinion, neither Georgia nor the majority had identified any such interest in disfavoring unmarried homosexuals over married couples with respect to sodomy. 6. SIGNIFICANCE OF CASE: The actual holding of Bowers is fairly narrow: the states may, without violating substantive due process, proscribe homosexual sodomy. The 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 Eighth Amendment's proscription of "cruel and unusual" punishment. Indeed, the majority in Bowers expressly declined to consider whether these constitutional arguments might have merit. (Justice Powell, who supplied the crucial fifth vote, stated in a separate concurrence that a prison sentence for such conduct "would create a serious Eighth Amendment issue.") For a discussion of the equal protection issue, see equal protection analysis. [Sam's comment: Hardwick spoke about his horrifying prison experience eloquently in Bill Moyers' PBS special on the Constitution. He justifiably pointed out that the prison guards revealing his homosexuality to the other prisoners was "cruel and unusual" in every sense of the word] a. BROADER SIGNIFICANCE: However, the case does indicate that a majority of the present Court will be relatively unsympathetic to assertions by homosexuals that particular homosexual practices are constitutionally protected. For instance, it would not be surprising to see the Court hold that the states may fire or decline to hire public school teachers who openly avow their homosexuality, or that the states may take actions to combat AIDS that are limited to homosexual conduct (e.g., closing of gay bath houses without closing heterosexual massage parlors.) b. HOMOSEXUALITY IN ARMED-FORCES: Similarly, the present Court would almost certainly agree with the D.C. Court of Appeals' holding that the Navy could discharge a serviceman who engaged in homosexual acts while in the service. Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984). The court concluded that "private, consensual homosexual conduct is not constitutionally protected," because the "right of privacy" recognized by the Supreme Court has "never [been] defined ... so broadly as to encompass homosexual conduct." This pre-Bowers statement of the law is no less true following Bowers. 7. OTHER SEXUAL PRACTICES: The Court has not yet spoken on whether there is a substantive due process right to engage in certain other sexual practices: a. ADULTERY: It is highly unlikely that the Court will recognize a substantive due process right to engage in adultery. In Hollenbaugh v. Carnegie Free Library, 439 U.S. 1052 (1978), the Court let stand a lower court opinion sustaining the discharge of two public library employees for living together in an adulterous relationship and parenting a child out of wedlock. Furthermore, one of the reasons the majority gave in Bowers for denying substantive due process protection to homosexual sodomy is that were such protection granted, it would be "difficult, except by fiat, to limit the claimed right ... 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." i. COMPARISON WITH HOMOSEXUALITY: It could be argued that the case for a "right to commit adultery" is stronger than that for a "right to commit homosexuality," since our traditions and majority culture probably view the former as being less repugnant (and certainly more frequently practiced). This is not an argument that the majority is always right, but simply an argument that in determining what constitutes a "fundamental right," the degree to which the interest being asserted is a "traditional" one may be considered. b. FORNICATION: Nor is there at present any constitutionally recognized privacy interest in committing fornication, so that state bans on premarital sex remain valid. Apart from the situations where the extreme youth of one or both parties is at issue, the case in favor of anti-fornication laws seems somewhat weaker than that in favor of anti-adultery laws. In the former situation, no clear state interest in protecting existing families is present. However, the state does have an interest, probably a somewhat weaker one, in encouraging the formation of new, legally-recognized, family units. c. INCEST: It seems clear beyond doubt that there is no "fundamental" right to commit incest. Therefore, total bans on incest regardless of individual circumstances, in force in most states, are almost certainly valid. d. PUBLIC ACTS BY MARRIED COUPLES: Even though sexual relations between married persons are entitled to constitutional protection, this protection may be waived if the acts do not take place in secret. i. ILLUSTRATION: See, e.g., Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976), upholding a married couple's sodomy conviction, because they allowed a stranger to witness, photograph, and even participate in, their conduct. The court conceded that the defendants' marital intimacies fell within the protected right of privacy if done in private; but this protection "dissolved" once "onlookers" were permitted to be present.