Subject: Gays & The Constitution / Hardwick Case
From: Sam Damon <[email-masked]>
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.