Bowers v.Hardwick: THE INVASION OF HoMoSEXUALS' RIGHT
OF PRIVACY
I.
INTRODUCTION
Much of the insensitivity of the judicial and legislative
branches of government to the plight of homosexual privacy is
grounded in the "ancient roots of proscriptions"1 against such
behavior. 2 Sodomy, defined generally as a sexual act involving
the sex organs of one person and the mouth or anus of another,3
was condemned originally in the Bible.4 Adhering to this JudeoChristian tradition, England named sodomy a common law
1. Bowers v. Hardwick, 106 S. Ct. 2841, 2842-46 (1986) (White, J., plurality), reh'g
denied, 107 S.Ct. 29 (1986). See also Justice Burger's concurring opinion emphasizing
the "ancient roots" against sodomy. Id. at 2847.
2. See generally'Note,Survey on the ConstitutionalRight to Privacy in the Context of Homosexual Activity, 40 U. MIAMI L. REV. 521 (1986). This survey emphasizes
that homosexual intercourse was illegal even in the days of Plato. Id. at 525 (citing
PLATO, LAWS, Book VIII 835d-842a). Plato reasoned that sodomy should be forbidden
because it contradicted the ancient Greek values of masculinity and procreation. Id.
3. See, e.g., GA. CODE ANN. § 16-6-2 (1984). The Georgia statute is similar to those
enacted by other states similarly criminalizing sodomy. The statute in pertinent part
provides:
(a) A person commits the offense of sodomy when he performs or submits to
any sexual act involving the sex organs of one person and the mouth or anus of
another...
(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years ....
Id.
See also BLACK's LAW DICTIONARY 1247 (5th ed. 1979) defining sodomy generally as
"oral or anal copulation between persons who are not husband and wife or consenting
adult members of the opposite sex, or between a person and an animal, or coitus with an
animal." Id. (citing Kansas Criminal Code).
4. See generally Note, supra note 2, at 525. The origin of opposition to homosexuality was a story relayed in Genesis concerning the destruction of Sodom and Gomorrah.
Id. (quoting Genesis 19:5-8, 24-26; Deuteronomy 23:17). the term "sodomy" is derived
from the name of the ancient city of Sodom which, according to the Bible, God destroyed
as a result of the evil practices of its citizens. Note, Doe and Dronenburg:Sodomy Statutes are Constitutional,26 WM. & MARY L. Rev. 645, 648 (hereinafter Sodomy Statutes)
(citing Genesis 19:1-29). The Bible, reflecting the general disgust regarding sodomy,
termed the act as an "abomination" for which "they both shall surely be put to death."
Leviticus 20:13.
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crime,' and the thirteen original colonies followed suit.
The current trend in the treatment of consensual sodomy is
to decriminalize such activity.7 Presently, twenty-four states and
5. See Sodomy Statutes, supra note 4, at 649. The author noted that sodomy was
not a common law crime, but became punishable by the statute of Henry VIII. Id. This
statute was repealed during the reign of Queen Mary, and was reinstated during the
reign of Elizabeth I. Id.
6. Sodomy Statutes, supra note 4, at 649. The colonies based their sodomy statutes largely upon the rationale of Blackstone who termed sodomy an "infamous crime
against nature." 4 W.
BLACKSTONE, COMMENTARIES
215 (1811). Specifically, North Caro-
lina's sodomy statute included the language "abominable and detestable crime against
nature." Note, supra note 2, at 526 (citing N.C. REv. CODE ch. 34 § 6 (1837)). While the
term "sodomy" was used in the New England colonies, this was not the case universally;
"buggery" was the term used by the Southern colonies. J. KATz, GAY/LESBIAN ALMANAC
35 (1981).
7. See Sodomy Statutes, supra note 4, at 652 n.49 (list of those states that have
decriminalized private, consensual sodomy between adult homosexuals); see also Comment, Dronenburg u. Zech: Sexual Preference DiscriminationSanctioned in the Name
of Judicial Restraint, 5 PACE L. REV. 847, 847-48 n.2 (1985) (same).
Those states that have decriminalized sodomy include Alaska, 1978 ALASKA SESS.
LAWS, ch. 166 (amending §§ 11.41.410, 11.41.420); California, 1975 CAL. STAT., ch. 71 § 7
(amending 286); Colorado, 1971 CoLo. SEss. LAWS, ch. 121, § 1 (amending §§ 18-3-402 to
404); Connecticut, 1969 CONN. PUB. ACTS 828, § 214 (repealing ch. 944 § 53-216); Delaware, 58 DEL. LAWS, ch. 497 § 1 (1973) (amending 11 § 767); Hawaii, 1972 HAWAII SEss.
LAWS, act 9, § 1 (amending §§ 733 to 735); Illinois, 1961 ILL LAWS, 1 pt. 1983, § 11-2
(amending § 11-2); Indiana, 1976 IND. ACTS. P.L. 148, § 24 (enacting § 35-42-4-2); Iowa,
1978 IOWA AcTs, ch. 1245, § 520 (amending § 709.1); Maine, 1975 ME. ACTs, ch. 499, § 5
(repealing § 1001); Nebraska, 1977 NEB. LAWS, L.B. 38, § 328 (repealing ch. 28); New
Hampshire, 1973 N.H. LAWS, § 532:26 (amending § 632-A:1); New Jersey, 1978 N.J. LAWS,
ch. 95, § 2C:98-2 (enacting § 2C:14-1); New Mexico, 1975 N.M. LAWS, ch. 109, § 3 (enacting § 30-9-12); North Dakota, 1977 NJ). LAWS, ch. 122, § 1 (enacting §§ 12.1 to 20.02);
Ohio, 1972 OHIo LAWS, 134 V H 511, § 2 (amending § 2907.01); Oregon, 1971 OIL LAWS,
ch. 743, § 432 (167.040) (repealing § 161.020); South Dakota, 1976 S.D. LAWS, ch. 158, §
22-8 (amending § 22-22-2); Vermont, 1977 VT. LAWS, No. 51, § 3 (amending §§ 3231,
3252); Washington, 1975 WASH. LAWS, 1st exec. Sess., ch. 260 (repealing § 9.79.100); West
Virginia, 1976 W. VA. AcTs, ch. 43 (enacting ch. 61 Art. 8B); Wyoming, 1977 WYo. SESS.
LAWS, ch. 70, § 3 (amending §§ 6-2-301 to 305).
Those states whose sodomy statutes have been judicially declared unconstitutional
include: New York (People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947
(1980), cert. denied, 451 U.S. 987 (1981)); Pennsylvania (Commonwealth v. Bonadio, 490
Pa. 91, 415 A.2d 47 (1980)); Texas (Baker v. Wade, 533 F. Supp. 1121 (N.D. Tex. 1982),
cert. denied, 106 S. Ct. 3337 (1986)).
In light of the Hardwick decision, the soundness of these states' decisions is now
questionable. This is so because the judiciary of each state struck down a penal law,
similar to the Georgia statute upheld by the Supreme Court, as an unconstitutional violation of the Equal Protection Clause of the fourteenth amendment. See infra note 35
for a summary of these cases. The Hardwick Court, however, held that these laws punishing consensual sodomy are valid and that it is the state legislature that must make the
determination of how to treat this subject. Hardwick, 106 S. Ct. at 2846. Moreover, each
of the statutes struck down by the various courts of New York, Pennsylvania, and Texas,
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the District of Columbia have criminal sodomy statutes.8 With
all the attention sodomy statutes have received, it is interesting
to note that these statutes have rarely been enforced and have
largely fallen into desuetude.9
remain unrepealed. It is therefore conceivable that these states may now enforce such
statutes. In fact, the Supreme Court, after reviewing the Hardwick decision, refused to
review the Baker decision. Baker, 106 S.Ct. at 3337 (1986). Apparently, the Court would
like the respective legislatures to resolve the conflict in their own best interests.
8. Those states include: Alabama, ALA. CODE § 13A-6-65(a)(3) (1982); Arizona,
Anz. REV. STAT. ANN. §§ 13-1411, 13-1412 (1978 & Supp. 1983-1984); Arkansas, AR.
STAT. ANN § 41-1813 (1977); District of Columbia, D.C. CODE ANN. § 22-3502 (1981); Florida, FLA. STAT. ANN. § 800.2 (West 1976); Georgia, GA. CODE ANN. § 16-6-2 (1984); Idaho,
IDAHO CODE § 18-6605 (1979); Kansas, KAN. STAT. ANN. § 21-3505 (West Supp. 1984);
Kentucky, Ky. REv. STAT. ANN. § 510.100 (Baldwin 1975); Louisiana, LA. REV. STAT. ANN.
§ 14:89 (West 1974 & Supp. 1984); Maryland, MD. CODE ANN. §§ 27-533, 27-554 (1982);
Massachusetts, MASS. GEN. LAWS ANN., ch. 272, §§ 34, 35 (West 1970); Michigan, MICH.
Com. LAWS §§ 750.158, 750.338, 750.338a, 750.338b (1968); Minnesota, MINN. STAT. ANN.
§ 609.30 (West Supp. 1984); Mississippi, Miss. CODE ANN. § 97-29-59 (1973); Missouri,
Mo. ANN. STAT. § 566.090 (Vernon 1979); Montana, MONT.CODE ANN. § 45-5-505 (1984);
Nevada, NEv. REv. STAT. § 201.190 (1979); North Carolina, N.C. GEN. STAT. §§ 14-27.1 to
.10 (1981); Oklahoma, OKLA. STAT. ANN. tit. 21, § 886 (West 1983); Rhode Island, RL
GEN. LAWS § 11-10-1 (1981); South Carolina, S.C. CODE ANN. § 16-15-120 (Law. Co-op.
1977); Tennessee, TENN. CODE ANN. § 39-2-612 (1982); Utah, UTAH CODE ANN. §§ 76-5403 to 406 (1978 & Supp. 1983); Virginia, VA. CODE ANN. § 18.2-361 (1982); Wisconsin,
Wis. STAT. ANN. § 944.17 (West 1982 & Supp. 1983-1984).
9. See, e.g., Hardwick, 106 S.Ct. at 2848 n.2 (Powell, J., concurring) (Georgia statute at issue had not been enforced for several decades). Additionally, Justice Powell contended that the "history of nonenforcement suggests the moribund character" of sodomy
laws which criminalize such behavior. Id.
Desuetude, in its legal sense, has been defined as "[d]isuse; cessation or discontinuance of use ...; [aipplied to obsolete statutes." BLACK'S LAW DICTIONARY 404 (5th ed.
1979).
Sodomy statutes are evidence of the general abhorrence our society has traditionally
harbored for this activity. Cohen, Moral Aspects of the Criminal Law, 49 YALE LJ. 987,
1017 (1940). The practice of criminally punishing activities that lie beyond the purview
of public tolerance is well-rooted. Id. In order to institute criminal penalties against an
act which society finds immoral, it is not enough that the majority dislikes such behavior; there must be a real feeling of disgust or "reprobation." S. KADiSH, S. SCHULHOFFER.
M. PAULSEN, CRIMINAL LAW AND ITS PROCESSES 240 (4th ed. 1983) (noted in P. DvLN,
THE ENFORCEMENT OF MORALS 4, 16-18, 20-23 (1959)). This feeling of disgust signifies
that society's capacity for tolerance has been reached. Id.
Although society, in the past, has generally regarded sodomy with disgust, there is
significant evidence that indicates this feeling is changing. See generally supra note 7 for
a list of those states that have decriminalized sodomy. States that have decriminalized
sodomy are free of problems with respect to maintaining the validity of laws in the face
of changing societal attitudes. That is to say, there will not be contempt for a law where
the law adequately represents mainstream public ideals. On the other hand, those states
that maintain criminal sodomy laws will experience, or already have experienced trouble
in enforcing such laws. See Hardwick, 106 S.Ct. at 2848 (citing Powell, J., concurring).
See also S. KADISH, The Crisis of Overcriminalizationin 374 ANNALS 157 (1967) (herein-
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Bowers v. Hardwick,1" a case examining the constitutional
validity of sodomy statutes as applied to homosexuals, came
before the United States Supreme Court in the midst of controversy.1" Never before had the Supreme Court directly addressed
the constitutionality of a homosexual's
right of privacy exercised
12
in the confines of the home.
after Ouercriminalization).What one has then is laws that are unenforced to preserve
conduct, yet unrepealed to preserve morals. Id.
One plausible reason for the continued existence of criminal sodomy laws is that to
remove the sanctions would be to remove entirely social disapproval. Cohen, supra at
1017. However, the importance of such a reason clearly is diluted where society no longer
harbors such disapproval. Another reason for the nonenforcement of criminal sodomy
laws is the difficulty in finding evidence with which to prosecute the defendant. See
Overcriminalization,supra at 23. See also Griswold v. Connecticut, 381 U.S. 479, 485-86
(1965)(idea of allowing police to search marital bedrooms is repulsive). Apart from contempt for the law, other related problems are the resultant spread of crime, and the
diversion of both police and judicial resources. Overcriminalization,supra at 23.
10. Hardwick, 106 S. Ct. at 2841.
11. See supra notes 7-9 for a discussion of how each state has treated consensual
sodomy. This controversial history is evidenced by the varied treatment sodomy statutes
have received from the states and the history of nonenforcement of criminal sodomy laws
still in effect in many states. See, e.g., Hardwick, 106 S. Ct. at 2848 (citing Thompson v.
Aldredge, 187 Ga. 467, 200 S.E. 799 (1939)) (prior to Hardwick's case, there had not been
a reported decision involving prosecution for private homosexual sodomy under the
Georgia statute for several decades).
12. See, e.g., Note, supra note 2. The author contended that there had not been a
proper adjudication on the merits of homosexual sodomy, at that time, since the cases
analyzing this right had not been cast in a "pure" setting. Id. at 523. In Dronenburg v.
Zech, 741 F.2d 1388 (D.C. Cir. 1984), reh'g denied, 746 F.2d 1579 (D.C. Cir. 1984), the
lower court addressed the issue of the homosexual's right of privacy in the military context. Dronenburg,741 F.2d at 1389. The appellant had served in the United States Navy
for nine years and had an unblemished record. Id. at 1389. A seaman recruit had implicated the appellant in homosexual conduct. Id. Dronenburg admitted he was a homosexual and was thereafter administratively discharged. Id. The Court upheld the Navy Administrative Discharge Board's decision maintaining that homosexuals enlisted in the
military do not have a constitutional right of privacy or equal protection. Id. at 1397-98.
In so holding, the court reasoned that the military has "unique" needs which must prevail in the interests of discipline, namely the maintenance of mutual trust and confidence in one's fellow recruits. Id. at 1398.
In 1976, the Supreme Court summarily affirmed a lower court decision upholding a
statute that criminalized sodomy. Doe v. Commonwealth's Att'y, 403 F. Supp. 1199 (E.D.
Va. 1975), aff'd, 425 U.S. 901 (1976). In that case, the plaintiffs were adult males who
wished to privately engage in consensual homosexual sodomy. Commonwealth's Att'y,
403 F. Supp. at 1200. The lower court found that the state's desire to promote morality
and decency was rational and therefore passed constitutional muster in the absence of a
fundamental right. Id. at 1202.
A question arises as to whether a summary affirmance by the Supreme Court constitutes a vote on the merits of the case. The courts have given conflicting responses. In
Dronenburg, 741 F.2d at 1392, the court held that the Supreme Court in Common-
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This Comment will focus on the Court's analytical methodology in scrutinizing the issue before it, and the soundness of the
constitutional tools of construction it employed. A comparison of
Hardwick to Roe v. Wade' will demonstrate the Court's shift in
analysis. Additional attention will be drawn to the potential for
abuse of the historical tool as a guide in shaping constitutional
precedents. Finally, the Hardwick decision will be scrutinized in
light of the current trend in the related areas of cohabitation
and fornication.
If.
BACKGROUND
Although the text of the federal Constitution does not specifically refer to a fundamental right of privacy, the United
States Supreme Court has nevertheless found such a right to exist. Beginning with Griswold v. Connecticut," a "penumbral"' 5
right of privacy was established emanating from the first, third,
fourth, fifth, and ninth amendments to the Constitution."6 This
penumbral right was originally invoked to guarantee married
persons the right to use contraception,1" but was later extended
wealth's Att'y had affirmed the lower court's decision based on the constitutionality of
the statute at issue and not on the plaintiffs' lack of standing. Dronenburg,741 F.2d at
1392. Compare Illinois State Bd. of Elections v. Socialist Party, 440 U.S. 173, 182-83
(1979) (summary affirmances do not constitute a vote on merits); Mandel v. Bradley, 432
.U.S. 173, 176 (1977) (same); Hicks v. Miranda, 422 U.S. 332, 344 (1975) (same); Washington v. Confederated Bands and Tribes, 439 U.S. 463 n.20 (1970) (same) with Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (summary affirmances do constitute a
vote on merits).
13. 410 U.S. 113 (1973). In Roe, the Supreme Court determined that a woman has
the fundamental right to choose whether or not to terminate her pregnancy provided
that this decision is made within certain prescribed boundaries. Id. at 163-65.
14. 381 U.S. 479 (1965) (access to contraception a fundamental right).
15. Id. at 482.
16. Id. at 484. Specifically, the penumbra includes the first amendment which protects the sanctity of association, the fourth amendment which protects the privacy of the
home, and the fifth amendment which protects individuals from government when it
forces the individual to surrender against his will. Id. Additionally, Justice Goldberg concurred asserting a ninth amendment argument which would protect individuals against
the federal government. Id. at 486-99.
17. 381 U.S. at 479. In Griswold, the Supreme Court held that a Connecticut statute which forbade "any person from using any drug ... for the purpose of preventing
conception" was unconstitutional. Id. at 480. In that case, a married woman was prevented from obtaining contraception. Id. Justice Douglas, writing for the Court, stressed
the existence of "peripheral" rights of privacy necessary to safeguard specific rights guaranteed by the Constitution. Id. at 483. He further maintained that "[t]he right of association, while it is not expressly included in the first amendment, is necessary in making
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to guarantee single persons the same right."
The Court extended the privacy rationale in Roe to its logical conclusion-that of the right to an abortion.1 9 Roe, perhaps
one of the most significant and controversial decisions ever
handed down by the Supreme Court 20 held unconstitutional a
Texas statute that criminalized abortion."1 Justice Blackmun's
the express guarantees fully meaningful." Id. at 483.
18. Eisenstadt v. Baird, 405 U.S. 438 (1972). In this case, Justice Brennan held that
a Massachusetts statute similar to the one invalidated in Griswold violated the Equal
Protection Clause of the fourteenth amendment. Id. at 448-55. The Massachusetts statute, by permitting contraceptive use by married individuals, but not by unmarried individuals, failed to demonstrate a fair and substantial relation to an important state interest. Id. at 448. Justice Brennan vehemently asserted that "[i]f
the right of privacy means
anything, it is the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child." Id. at 453.
19. Roe, 410 U.S. at 164. A pregnant, single woman challenged a Texas criminal
abortion statute which prohibited her from obtaining an abortion where her life was not
in danger. Id. at 117-19. Also joined in the action were a licensed physician who had been
arrested previously for violations of the Texas abortion statutes, and a childless married
couple. Id. at 113. The Court dismissed the married couple's complaint, holding that
they lacked sufficient standing. Id. at 125. The Court held that the couple did not have a
"personal stake in the outcome of the controversy." Id. at 123 (construing Baker v. Carr,
369 U.S. 186, 204 (1962)).
20. See Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J.
920 (1973). In a caustic criticism of the Roe decision, Ely denounced the holding as "bad
constitutional law." Ely, supra at 947. This is so, he reasoned, because the Roe decision
lacks support in the constitutionil text, history, or any other constitutional doctrine. Id.
at 943.
See also Comment, Roe v.Wade and Doe v. Bolton: The Compelling State Interest
Test in Substantive Due Process,30 WASH. & LEE L. REv. 628 (1973). The author similarly condemned the Roe decision and argued that the Court's focus on substantive due
process has "created serious doctrinal difficulties which may return to trouble the Court
in the future." Id. at 645. By holding that the fetus does not fall within the definition of
a "person" as required by the fourteenth amendment, the author contended that arbitrary significance is placed on the time of birth. Id. Consequently, further medical advances could conceivably render the decision obsolete. Id. at 646.
See also Comment, Roe v. Wade - The Abortion Decision - An Analysis and its
Implications, 10 SAN DIEGo L. REv. 844 (1973). This author contended that the inherent
difficulty in comprehending the Roe decision was deciphering on what grounds the Court
based its determination of when life begins. Id. at 850. In fact, the author argued, the
Court shifted its focus from the protection of human life to the protection of potential
life but failed to state its reasons for so doing. Id.
21. Roe, 410 U.S. at 164. The Texas criminal abortion law was typical of those then
existing in many other states. Id. at 118. The Texas penal law stated in pertinent part:
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly
procure to be administered with'her consent any drug or medicine, or shall use
towards her any violence or means whatever externally or internally applied,
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PRIVACY RIGHTS
majority opinion, in striking down the abortion statute, relied on
precedent, 2 the history of abortion,23 and the adverse emotional
and physical effects of an unwanted pregnancy." ' The majority
concluded that the state may assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life,25 but these concerns must not unduly burden the woman's right to choose whether or not to terminate her
pregnancy. 26 Consequently, the Court outlined, in what has been
and thereby procure an abortion, he shall be confined in the penitentiary not
less than two nor more than five years; if it be done without her consent, the
punishment shall be doubled. By "abortion" is meant that the life of the fetus
or embryo shall be destroyed in the woman's womb or that a premature birth
thereof be caused.
Article 1192. Furnishing the means
Whoever furnishes the means for procuring an abortion knowing the purpose
intended is guilty as an accomplice.
Article 1193. Attempt at abortion
If the means used shall fail to produce an abortion, the offender is nevertheless
guilty of an attempt to produce abortion, provided it be shown that such
means were calculated to produce that result, and shall be fined not less than
one hundred nor more than one thousand dollars.
Article 1194. Murder in producing abortion
If the death of the mother is occasioned by an abortion so produced or by an
attempt to effect the same it is murder.
Article 1196. By medical advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
TEx. PENAL CODE ANN. §§ 1191 to 1194, 1196 (Vernon 1925).
22. Roe, 410 U.S. at 116-52. Justice Blackmun admitted that the Constitution does
not explicitly mention the right of privacy, but that a certain zone of privacy nevertheless has been recognized. Id. at 152. This zone of privacy has been established through
the first, fourth, fifth and ninth amendments, the penumbra of the Bill of Rights, and in
the concept of ordered liberty guaranteed by substantive due process. Id.
23. Id. Justice Blackmun further supported his decision through the historical
antecedents of abortion. Id. at 129-47. Interestingly enough, criminal abortion laws did
not have a long history. Id. at 129. The Roe decision represents the first challenge to
these statutes that generally became effective in the late 1880s. Id.
Several reasons for the enactment of abortion laws in the latter half of the 19th
century were the concern for illicit sexual conduct, the hazards of medical procedures,
and the state's interest in protecting fetal life. Id. at 147-50. Thus, Justice Blackmun
approached Roe fully prepared to place appropriate weight on each of these interests. Id.
at 152.
24. Id. Justice Blackmun emphasized the significant effects maternity may have on
the woman's life. Id. at 153. These included the stigma associated with unwed mothers,
distress associated with mental and physical health burdened by care for the unwanted
child, and the possible deleterious psychological effects. Id.
25. Id. at 162-65.
26. Id. The standard of review applied by the Court to the state law was strict
scrutiny since a fundamental interest was at stake. Id. at 155. This means that a state's
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termed judicial legislation, a series of strictures under which the
state may regulate such procedures. 7
The Supreme Court's decisions illustrate a trend toward extending the fundamental right of privacy in many directions. In
Carey v. Population Services, Int'l, 28 the privacy interest was
held to include the distribution of contraceptives to minors.2 9
Similar decisions have held the right of privacy applicable to activities relating to marriage, 30 procreation, 31 family relationinterest in regulating abortions must be compelling, and that the means for achieving
these goals must be necessary. Id. Given this intense scrutiny, the Texas statute failed to
pass constitutional muster. Id. at 162-65. Those times in which the state would have a
compelling interest in regulating abortions would be times when the viability of the fetus
was at issue, namely in the third trimester. Id. at 164-65. Additionally, the state could
reasonably regulate abortions in the second trimester when the mother's health was at
issue. Id.
27. Id. The only period when the state is powerless to act on behalf of the mother
or fetus is in the first trimester. Id. At this time, the woman, after the initial decision is
made to undergo an abortion, may consult with her private physician. Id.
28. 431 U.S. 678 (1977).
29. Id. at 693. In this case, Population Planning Associates mailed order forms for
nonmedical contraceptive devices to residents of New York of all ages. Id. at 682. The
Court held that the state's interest in protecting the morality of its youth against promiscuous sexual relations was not sufficiently compelling in light of the fundamental interest of privacy thereby burdened. Id. at 691-99. In the absence of conclusive proof that
extramarital sexual activity increases as a result of availability of contraceptives, the
state's interest could not be deemed compelling. Id. at 694-96.
30. Loving v. Virginia, 388 U.S. 1 (1967). In Loving, a white man and a black woman who were married challenged the constitutionality of a Virginia statute that made it
illegal for individuals of different races to marry. Id. at 12. The Supreme Court held that
the antimiscegenation law violated the Equal Protection and Due Process Clauses of the
fourteenth amendment. Id. at 11-12. Therefore, the Court reasoned, mere equal application of a statute to whites and non-whites alike does not dispel the notion that racial
classifications are invidious and must fail under the Equal Protection Clause. Id. at 11.
Moreover, the Court noted that marriage is one of the "basic civil rights of man," and
must therefore fall under the protection of the Due Process Clause. Id. at 12 (citing
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
31. Skinner, 316 U.S. at 535. Here, the petitioner was convicted of stealing chickens, and of armed robbery on two separate occasions. Id. at 537. Pursuant to an
Oklahoma law that provided for sterilization of persons convicted three times of felonies
showing "moral turpitude," petitioner was directed by the jury to undergo a vasectomy.
Id. The Supreme Court found that the Oklahoma statute violated the Equal Protection
Clause of the fourteenth amendment for the reason that perpetrators of embezzlement
and larceny were treated differently under the law. Id. at 541-42. More important, the
Court held that marriage and procreation are "fundamental to the very existence and
survival of the race." Id. at 541.
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PRIVACY RIGHTS
ships, 2 child rearing, 3 and education. 4 This peripheral right of
privacy is thus a comprehensive one.
Although heterosexuals have been successful in realizing
freedom from unwanted governmental intrusion into their intimate lives, homosexuals have not had such success.35 The Su32. Prince v. Massachusetts, 321 U.S. 158 (1944). In this case, a Jehovah's Witness
provided a minor ward with religious material to distribute. Id. at 159-60. The Court
stated that there are certain aspects of family life which the state cannot reach. Id. at
166. The petitioner's conviction was upheld, however, based on a law which barred children of any religious sect from using the street as their ground for worship. Id. at 170.
33. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925). In Pierce,a school law of Oregon
required parents to send their children to public schools as opposed to private schools.
Id. at 530. Two Oregon coiporations that owned private schools challenged the law. Id.
at 531-33. The Supreme Court held that this restriction on child rearing violated the
liberty interests afforded parents and therefore was invalid under the fourteenth amendment. Id. at 534.
34. Meyer v. Nebraska, 262 U.S. 390 (1923). At issue in this case was a state law
that prohibited school instruction of any modern language, other than English, to children who had not yet reached the ninth grade. Id. at 397. The Court held the law invalid, asserting that the liberty interest guaranteed by the fourteenth amendment extends
to choices of which vocations to pursue. Id. at 399-401.
35. See Hardwick, 106 S. Ct. at 2844; see also Commonwealth's Att'y, 403 F. Supp.
at 1200-02. The Supreme Court in Commonwealth's Att'y failed to explain how the Virginia statute would fare were it applied to heterosexual sodomy, despite the statute's
gender-neutral terms. Commonwealth's Att'y, 403 F. Supp. at 1200 (United States Supreme Court adopted the rationale of the lower court through its summary afilrmance).
The Virginia statute applied to "any person" and not "any homosexual." Id. The equal
protection argument inherent in such a statutory application was thus effectively
avoided. Id. at 1200-02. Similarly, in Hardwick, the Supreme Court ignored the general
application of the Georgia statute to all persons regardless of sexual preference. Hardwick, 106 S. Ct. at 2841. In fact, this refusal was emphatically denounced by Justice
Blackmun in his dissenting opinion. Id. at 2849 (Blackmun, J., dissenting).
Common to those states whose courts have invalidated sodomy statutes is the recognition that broadly defined consensual sodomy statutes must fail under the Equal Protection Clause. In People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947
(1980), defendants were convicted of violating a law that punished any person who engaged in deviate sexual intercourse defined as oral or anal sodomy practiced by unmarried individuals. The court found that the statute violated both the right of privacy and
equal protection under the law. Onofre, 51 N.Y.2d at 483-84, 415 N.E.2d at 942-43, 434
N.Y.S.2d at 949-51.
Under essentially the same facts as in Onofre, a similar statute fell in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). The state law's application of a criminal sodomy law applied only to unmarried individuals, and hence was invalid under the
Equal Protection Clause. Id. at 92-93, 415 A.2d at 49-50.
As in Onofre and Bonadio, at issue in Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex.
1982), was a penal statute proscribing homosexual sodomy. A homosexual challenged the
constitutionality of the law. Id. at 1124. The court declared the law invalid under the
right of privacy and Equal Protection Clause. Id. at 1140, 1143-44. The court found that
these rights apply "whether it is a husband and wife choosing to engage in oral or anal
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preme Court has not, to date, recognized a fundamental right of
privacy for homosexuals regarding intimate relations. 6 The
Hardwick case is the first attempt by the Supreme Court to analyze the issue in a "pure" form since questions involving the
fourth amendment, participation of minors, and lack of consent
37
are not present.
Previous efforts by the Court to define the parameters of
homosexual privacy have been inconclusive. In Doe v. Commonwealth's Att'y,3 8 the Supreme Court summarily affirmed a Virginia sodomy statute s that made it a crime for homosexual
adult males to engage in private consensual sodomy.40 The district court exercised a low level of scrutiny in upholding the statute and thereby condoned the legislative goal of fostering morality and decency.4 1 Moreover, the Court reasoned that the
longevity of the statute confirmed its legitimacy.' 2
The analysis of Commonwealth's Att'y was extended by the
3
District of Columbia Court of Appeals in Dronenburgv. Zech.4
There, the court held that the Navy's policy of mandatory discharge for homosexual conduct did not invade constitutional
sex in the privacy of their bedroom - or whether it is an unmarried male and female
privately engaging in extramarital sexual relations of their own choice." Id. at 1140.
These cases illustrate the inherent shortsightedness of the courts in both Commonwealth's Att'y and, more importantly, in Hardwick. To rule that homosexuals do not
have a fundamental right of privacy, without addressing the recognition of the same
right to heterosexuals, begs the question whether equal protection is denied.
36. See infra notes 38-44 and accompanying text for a discussion of homosexuals'
right of privacy.
37. Note, supra note 2, at 523.
38. 403 F. Supp. 1199 (E.D. Va. 1975), afl'd, 425 U.S. 901 (1976).
39. Commonwealth's Att'y, 425 U.S. at 901.
40. Commonwealth's Att'y, 403 F. Supp. 1199, 1200 (E.D. Va. 1975) (citing 1960
VA. AcTs ch. 358, § 18.1-212).
41. Commonwealth's Att'y, 403 F. Supp. at 1202. This lower level of scrutiny usually results in a finding that no fundamental interest is burdened. Id. The legislative
means of implementing a state interest need only be rational. Id. at 1202-03. Therefore, a
state, in exercising its police power, has the ability to legislate in the interests of morality
and dlecency provided the method of doing so is not arbitrary. Id.
42. Id. The majority explained that the Virginia statute was a product of ancient
times where Judaic and Christian law condemned sodomy. Id. Therefore, the proscriptions against sodomy are not an "upstart notion." Id. at 1202. This argument is reminiscent of the historical tool of constitutional interpretation which proved dispositive in
Hardwick, 106 S. Ct. at 2844-46.
43. 741 F.2d 1388 (D.C. Cir. 1984), reh'g denied, 746 F.2d 1579 (1984). See supra
note 12 for a detailed account of the facts of Dronenburg.
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PRIVACY RIGHTS
rights of privacy.4 The Navy's "needs for discipline and good
order" justified its restrictions and the court's deference.4
Heterosexuals' right of privacy has largely been a product of
the interpretation of the text of the Constitution. 46 Denial of
privacy rights to homosexuals, on the other hand, has been
based not on the constitutional text, but on the historical antecedents of sodomy statutes.47 In order to lend credence to the
use of different tools of interpretation, the courts, where a restrictive view of privacy rights has been sought, have emphasized the need for judicial restraint when dealing with rights not
firmly imbedded in the Constitution. 48 The courts reason that in
the absence of such restraint, the judiciary becomes vulnerable
to attack.4' This judicial restraint argument then has been bol44. Id. at 1397.
45. Id. at 1392. Deference to judgments of the military is commonplace. See, e.g.,
Rostker v. Goldberg, 453 U.S. 57 (1981) (male-only draft registration upheld); Parker v.
Levy, 417 U.S. 733, 743 (1974) ("the military is, by necessity, a specialized society separate from civilian society"); Korematsu v. United States, 323 U.S. 214 (1944) (conviction
for violating military order during W.W.II upheld excluding all Japanese from designated west coast areas).
46. See generally supra notes 15-35 and accompanying text for a discussion of the
interpretation of the constitutional text which has shaped the rights of privacy.
There are primarily two restraints that influence a court's method in applying constitutional law to a fact pattern. Internal restraints inherent in article III of the Constitution include the court's power to review a case and the closely related doctrine of separation of powers. G. GUrrHP, CONsTrrUTIONAL LAW 44 (11th ed. 1985). This may
properly be termed the "structural" argument. External restraints include those drawn
from constitutional sources other than article III, specifically the general text of the Constitution. Id. at 45. Finally, apart from internal and external restraints, history often
plays a significant role in determining the principles of judicial review. Id. at 13.
47. See, e.g., Hardwick, 106 S.Ct. at 2844-46 (White, J., plurality) (right to engage
in consensual homosexual sodomy is not deeply rooted in nation's history and tradition);
id. at 2847 (Burger, C.J., concurring) (condemnation of sodomy firmly rooted in JudeoChristian standards); Dronenburg,741 F.2d at 1396 (citing traditional condemnation of
sodomy in support of deference to military); Commonwealth's Att'y, 403 F. Supp. at
1202 (emphasizing longevity of statute in support of its rationality).
48. See Dronenburg,741 F.2d at 1396. In Dronenburg,Judge Bork supported his
decision not to extend the right of privacy to homosexuals by asserting that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy
when it deals with judge-made constitutional law having little or no cognizable roots in
the language or even the design of the Constitution." Id. See also Hardwick, 106 S.Ct. at
2846 where Justice White quoted this language in his majority opinion.
49. Dronenburg, 741 F.2d at 1396. Judge Bork stated that "the Court should be
extremely reluctant to breathe still further substantive content into the Due Process
Clause so as to strike down legislation adopted by a State or city to promote its welfare."
Id.
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stered by the traditional condemnation of homosexual sodomy.5 °
Once an interest falls within the ambit of the fundamental
right of privacy, as do heterosexual intimate relations, a statute
will only survive if the state can demonstrate a "compelling" interest in regulating a particular activity, and a "necessary"
means for achieving this goal.51 This strict scrutiny of a state's
law signifies the death of the statute.52 Homosexual intimacy, on
the other hand, is not a fundamental interest. 53 Hence a rational
relationship between the legislative means and ends is all that is
required.5"
III. THE DECISION
A.
The Facts
In Hardwick, a homosexual man was charged with violating
the Georgia penal consensual sodomy statute.5 5 The Georgia police, upon invitation, entered the respondent's home for reasons
unrelated to the sodomy charge. While attempting to locate
Hardwick, the officers witnessed the activity complained of in
the bedroom of his home."6 After a preliminary hearing, the district attorney declined to present the case to a grand jury in the
50. See supra notes 2 & 4-6 and accompanying text for a discussion of the historical condemnation of homosexual sodomy. See also Hardwick, 106 S. Ct. at 2844-46 (list
of those states which provide criminal penalties for consensual sodomy).
51. See, e.g., Carey, 431 U.S. at 686 (burdens on fundamental rights justified by
compelling interests narrowly drawn); Roe, 410 U.S. at 165-66 (physician may intervene
up to point where important interests provide compelling justifications for state intervention); Griswold, 381 U.S. at 485 (governmental purpose for regulating may not be
achieved by means which sweep too broadly).
52. See, e.g., Carey, 431 U.S. at 678 (state law held invalid because it unnecessarily
burdened a fundamental interest); Roe, 410 U.S. at 113 (same); Griswold,381 U.S. at 479
(same).
53. See, e.g., Dronenburg,741 F.2d at 1395-96 (Navy was permitted to discharge
recruit for homosexual conduct); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir.
1984) (concealment of sexual orientation constituted fraudulent entry that warranted
discharge); Commonwealth's Att'y, 403 F. Supp. at 1199 (Virginia statute that made it a
crime for homosexual adult males to engage in private consensual sodomy held valid).
54. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (states
not required to convince courts of soundness of legislative judgments); Hollenbaugh v.
Carnegie Free Library, 439 U.S. 1052 (1978) (Court sustained discharge of two public
library employees who openly committed adultery); Dronenburg,741 F.2d at 1398 (policy requiring discharge for homosexual conduct a rational means for satisfying legitimate
interests).
55. GA. CODE ANN. § 16-6-2 (1984). See supra note 3 for text of statute.
56. Hardwick, 106 S. Ct. at 2842.
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PRIVACY RIGHTS
absence of convincing proof.57
Hardwick then challenged the constitutionality of the statute in federal district court as it applied to consensual sodomy."
Hardwick claimed that the statute placed him in apprehension
of arrest within his home, and that the statute violated the Constitution. 9 Joined in this action were John and Mary Doe who
asserted a desire to engage in sodomy, as proscribed by section
16-6-2, in the privacy of their home."' The Does claimed that the
existence of the statute and Hardwick's arrest "chilled and de61
terred" such activity.
The district court granted the state's motion to dismiss
Hardwick's challenge for failure to state a claim.62 The same
court dismissed the Does' challenge on the grounds that they
lacked proper standing to maintain the court action.6" The Court
of Appeals for the Eleventh Circuit reversed the decision of the
district court as to Hardwick, and affirmed the decision as to the
Does."
The United States Supreme Court granted the state's petition for certiorari because several circuits had arrived at conflicting decisions regarding the rights of homosexuals.6 5 The issue
certified before the Court was whether there exists a constitutional right to engage in consensual homosexual sodomy.66 The
Supreme Court held that the Constitution does not embody
such a right, thereby reversing 6the decision of the Court of Appeals for the Eleventh Circuit. 7
57. Id.
58. Id.
59. Id.
60. Id. at 2842 n.2.
61. Id.
62. Id. at 2842.
63. Id. at 2842 n.2. A requirement of standing is that the parties have an adversarial relationship and that the party threatened with prosecution under the state law be
in imminent danger of sustaining harm. Id.
64. Id. at 2843.
65. Id. Both the Fifth Circuit Court of Appeals and the Court of Appeals for the
District of Columbia had reached conclusions contrary to that of the Eleventh Circuit
Court of Appeals. Id. at 2843 n.3.
66. Id.
67. Id.
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B. The Plurality
Justice White, writing for the plurality, framed the issue as
whether the Constitution confers upon homosexuals a fundamental right to engage in sodomy.68 Answering in the negative,
Justice White pointed to the "ancient roots" of proscriptions
against such activity. 9 In addition, he reasoned, homosexual
sodomy has no connection to the purposes of the family, marriage, and procreation, rights traditionally recognized by the
Court as fundamental. Against these traditional criteria, homosexual sodomy could not be termed a fundamental right.70 Moreover, Justice White concluded that the Court should limit its
role in expanding the liberty interests grounded in substantive
due process.7 '
Finally, in response to the dissent's argument, Justice White
concluded that he was not persuaded to rule in Hardwick's favor
simply because the site of the homosexual conduct was the bedroom of his own home.7 He reasoned that though the state does
not have the right to criminalize the purely private possession of
obscene materials within the home,7 3 this does not enable an individual to engage in what would otherwise be termed illegal
conduct.74 Justice White further concluded that if such private
consensual activity between adults were permitted within the
68. Id. (Burger, C.J., Powell, Rehnquist, O'Connor, J.J., joining). In so doing, Justice White failed to acknowledge that the Georgia statute at issue addressed "any person" and not "any homosexual." See supra note 3 for text of the statute.
69. Hardwick, 106 S. Ct. at 2844 (White, J., plurality). See supra note 46 for a
discussion of the tools of constitutional interpretation. See also Macgill, Anomaly, Adequacy, and the Connecticut Constitution, 16 CONN. L. Rav. 681 (1984). Macgill contended that "resort to history is to be avoided wherever possible." Id. It is much too easy
for individuals "to find in [their] past what [they] wish to impose on [their] future." Id.
at 697. The application of history by some courts to interpret the intent of the drafters
then results in the formulation of general principles which pay little respect to the particular facts at bar. Id.
70. Hardwick, 106 S. Ct. at 2843 (White, J., plurality). Justice White cited Carey,
431 U.S. 678, as holding that the right of privacy as originally defined in Griswold, 381
U.S. 479, did not extend to homosexual privacy. Id.
71. Hardwick, 106 S. Ct. at 2846 (White, J., plurality). Justice White stated that
expanding the substantive parameters of the fifth and fourteenth amendments meant
that the "U]udiciary necessarily takes to itself further authority to govern the country
without express constitutional authority." Id.
72. Id.
73. Id. (citing Stanley v. Georgia, 394 U.S. 557 (1969)) (person has right to possess
and read obscene materials in privacy of home).
74. Hardwick, 106 S. Ct. at 2846 (White, J., plurality).
PRIVACY RIGHTS
19871
home, then there would be no plausible means to prevent other
deleterious activities such as adultery and incest."5
C.
The Concurrences
Chief Justice Burger also stressed the ancient roots of pro-
scriptions against sodomy.7 6 Since the "millennia of moral teach-
ing" must control, he contended, it is only fitting that the state
can enact a statute consistent with those teachings.7 Therefore,
Chief Justice Burger stressed the state's autonomy in enacting
such a sodomy statute, and dismissed the idea that the question
at hand had anything at all to do with personal choice. 8
Justice Powell joined the opinion of the Court in its entirety, but added that Hardwick could have attacked the Georgia statute on eighth amendment grounds.7 Specifically, the law
authorized a prison sentence extending from one to twenty
years, the most stringent term imposed by any state with a similar criminal sodomy law.80 However, since Hardwick had not
presented this issue in the lower court, its constitutionality was
not properly before the Supreme Court.8 '
D. The Dissents
To Justice Blackmun, the issue could be stated broadly to
include whether homosexuals have the right to be let alone. 2 He
criticized the majority for merely imitating the past and for failing to recognize that the statute addressed both homosexual and
heterosexual sodomy.83 Justice Blackmun further concluded that
75. Id.
76. Id. at 2847 (Burger, C.J., concurring). Justice Burger
explained that homosexual behavior has been subject to state intervention since the beginning of Western Civilization. Id. Moreover, he stated that traditional condemnation of
such activity was "firmly rooted in Judeao - Christian [sic] moral and ethical standards."
Id. See also supra notes 2 & 4-6 for a detailed account of the historical roots of sodomy.
77. Id. (Burger, C.J., concurring).
78. Id.
79. Id. at 2847 (Powell, J., concurring).
80. Id. at 2847 n.1 and accompanying text.
81. Id. at 2848.
82. Id. (Brennan, Marshall, Stevens, J.J., joining).
83. Id. This is reminiscent of the equal protection argument under the fourteenth
amendment. Id. However, Justice Blackmun added that it was not necessary to reach the
equal protection argument since the statute must fail under the right of privacy and
intimate association analysis. Id. at 2849-50.
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sexual intimacy forms the central fabric of human existence and
should not be denied an individual merely because of sexual orientation." ' Moreover, he noted, sexual activities performed in
the privacy of the home should be protected by the fourth
amendment, the traditional guardian of domestic privacy.s
Justice Stevens, writing a separate dissent, maintained that
a state could not totally prohibit sodomy because heterosexual
intimacy is generally protected by the penumbral rights of the
first and fourth amendments.86 Nor can a state ban sodomy as to
homosexuals because no legitimate interest is served in treating
the two groups differently. 7 Hence, he concluded that the Georgia statute must fail under both substantive due process and
equal protection analysis.88
84. Id. at 2850. "[T]he concept of privacy embodies the moral fact that a person
belongs to himself and not others nor to society as a whole." Id. (quoting Thornburgh v.
American College of Obstetricians & Gynecologists, 106 S. Ct. 2169 n.5 (1986) (Stevens,
J., concurring)).
85. Id. at 2852-53. Justice Blackmun maintained that "the home represents the
very essence of an individual's personal security, personal liberty, and private property."
Id. at 2852. The integrity of the home, therefore, does not depend on the activities which
take place inside, but instead stands independently as an indefeasible right to be free
from unwarranted invasions. Id. Justice Blackmun specifically denounced the plurality's
attempt to equate private consensual sexual activities occurring in the home with the
"possession of drugs, firearms, or stolen goods" also in the home. Id. The former is victirnless whereas the latter is inherently dangerous. Id. (discussion of Stanley, 394 U.S. at
557). See also Oliver v. United States, 466 U.S. 170 (1984) (governmental intrusion into
private open field did not violate privacy of home); Payton v. New York, 445 U.S. 573
(1980) (fourth amendment prohibits police from warrantless invasions into sanctity of
home); United States v. Orito, 413 U.S. 139 (1973) (zone of privacy protected by fourth
amendment does not extend beyond home).
86. Hardwick, 106 S. Ct. at 2857 (Stevens, J., dissenting).
87. Id. at 2858. Justice Stevens articulated that:
(alithough the meaning of the principle that 'all men are created equal' is not
always clear, it surely must mean that every free citizen has the same interest
in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions.
Id.
Furthermore, Georgia's record of nonenforcement of the statute impeached the notion that Georgia's process of selective application was essential. Id. See also supra note
9 for a discussion of the implications of criminal laws that remain unrepealed despite
their history of nonenforcement.
88. d. at 2859. See Note, The Constitutional Status of Sexual Orientation:Homosexuality as a Suspect Classification,98 HARv. L. REv. 1285 (1985). Here, the author
similarly asserted that homosexuals as a class require heightened judicial scrutiny. Id. at
1290. This is important because homosexuality is not a form of conduct which takes
place only in the privacy of the bedroom, but rather is a continuous aspect of personality
requiring expression across the public/private spectrum. Id.
PRIVACY RIGHTS
1987]
IV.
ANALYSIS
Both the plurality and the concurring opinions which deny
homosexuals the fundamental right of privacy rely predominantly on the historical antecedents of the sodomy offense for
support."9 The use of history as a constitutional tool of construction, however, can be quite arbitrary."0 One's perception of his-
tory is often determinative of whether "originalism" s
9' ' 2
"nonoriginalism
or
will be controlling as a method of constitutional interpretation.
Originalists argue that the intent of the Framers of the Constitution is dispositive, and that constitutional issues must be
analyzed in view of the agenda of the Founding Fathers.93 Accordingly, the text is elevated to a supreme position. 94 To dis89. Hardwick, 106 S. Ct. at 2844-47. See also supra notes 2 & 4-6 and accompanying text for a more in-depth discussion of the historical antecedents.
90. Macgill, supra note 69, at 691-92. Macgill adopted Justice Peters' position
taken in dissent in Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201, 1215-17
(1984), and contended that resort to history as an analytical tool for constitutional interpretation is to be avoided wherever possible. Id. See also supra note 69 for clarification
of Macgill's analysis of history as a tool of constitutional interpretation.
91. Brest, The Misconceived Quest for the Original Understanding,60 B.U.L. REV.
204 (1980) (synonym for originalism is "noninterpretivism"); Grey, Do We Have an Unwritten Constitution?,27 STAN. L. REv. 703 (1975) (synonym for nonoriginalism is "interpretivism"). Tied to these theories of constitutional interpretation are the theories of
positive law and natural law. Grey, supra at 706. Positive law is alligned with the theory
of originalism. Id. Natural law, on the other hand, is alligned with the theory of nonoriginalism. Id. at 709.
92. Brest, supra note 91, at 209. Synonyms for nonoriginalism are "interpretivism"
and "intentionalism." Grey, supra note 91, at 705.
93. Brest, supra note 91, at 204. Strict originalism has not been accepted by a majority of constitutional analysts. Id. at 204-05. Moderate originalism, on the other hand,
has attracted a good number of supporters. Id. at 205. See also Maltz, Some New
Thoughts on an Old Problem - The Role of the Intent of the Framers in Constitutional
Theory, 63 B.U.L. REv. 811, 813 (1983) (total rejection of Framers' intent relatively rare).
94. Brest, supra note 91, at 205-09. Because the Constitution takes this supreme
position, it is necessary to derive meaning from its written words. Id. Originalists study
the "plain meaning" of the text encompassing both the linguistic and social contexts
existing at the time the Constitution was drafted. Id.
Dating back to the days of Justice Hugo Black, advocates of the noninterpretivist
approach have argued that constitutional doctrines based on sources other than the text
are "illegitimate." Grey, supra note 91, at 703. Grey cited Professor Bork (presently
Judge for the United States Court of Appeals, District of Columbia Circuit) who similarly argued that "the judge must stick close to the text and the history, and their fair
implications, and not construct new rights." Id. at 704 (citing Bork, Neutral Principles
and Some First Amendment Problems, 47 IND. LJ. 8 (1971)).
Finally, Grey cited Professor John Ely who contended that decisions based on a
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cern the meaning of the text, originalists turn to the society that
adopted the Constitution." Consequently, the meaning of the
9
document remains more or less constant. 6
It is evident that originalists examine history only at the
time of the framing of the Constitution.97 Subsequent developments in economics, politics, and social welfare play no role in
constitutional adjudication."8 Clearly, originalism has not
predominated on the bench in the most recent decade, as Roe
and other privacy decisions make plain.99
Justice White and Chief Justice Burger subscribe to the
originalist theory-at least partially-in interpreting homosexual rights of privacy.00 Given the widespread condemnation of
sodomy dating back to ancient times, the Framers of the Constitution clearly did not intend to protect these rights.' 0 ' Therefore, these justices reason that homosexuals cannot have a right
to such privacy today. 02 This analysis of homosexual privacy is
right of privacy drawn from inconceivable arts of construction or interpretation of the
constitutional text violate the Court's "obligation to trace its premises to the charter
from which it derives its authority." Grey, supra note 91, at 703 (citing Ely, supra note
20, at 949).
95. Brest, supra note 91, at 208. See also Munzer & Nickel, Does the Constitution
Mean What it Always Meant?, 77 COLUM. L. REV. 1029, 1030 (1977) (look to intent of
Framers at time document was drafted).
96. Brest, supra note 91, at 204. Brest stated that adherence to originalism constrains the discretion of decision-makers and assures that the Constitution will be interpreted consistently over time. Id.
97. Id. at 208. See also Munzer & Nickel, supra note 95, at 1031 (historical approach cannot account for various changes in constitutional law).
98. Brest, supra note 91, at 220 n.57.
99. See supra notes 30-34 and accompanying text for a description of the liberal
view accorded the right of privacy beginning in the 1920s and reaching into the 1980s.
100. Hardwick, 106 S. Ct. at 2844-47. Adherence to this originalist view is evidenced in the opinions of Justice White and Chief Justice Burger who expended considerable energy outlining the ancient roots of sodomy. Id.
101. Id. at 2844 (White J., plurality). Compare Roe, 410 U.S. at 113 (upholding
woman's right of privacy within prescribed boundaries in choosing whether or not to
procure abortion) with Hardwick, 106 S. Ct. at 2841 (upholding Georgia statute denying
homosexuals right to engage in sodomy).
102. See Brest, supra note 91, at 220 n.57. Brest maintained that the drafters of
the Constitution did not have the same perspective of time and change as do constitutional interpreters today. Id. Specifically, developments such as the industrial revolution,
theories of evolution, and the possibility of annihilation have influenced the manner in
which the Constitution is viewed. Id. See also Monaghan, Of "Liberty" and "Property",
62 CORNELL L. REv. 405 (1977). Monaghan maintained that governing theories have
changed over time as preoccupations with economics have shifted to concerns for representative democracy and individual freedoms. Id.
19871
PRIVACY RIGHTS
surely logical if studied in isolation, but given the treatment of
heterosexual privacy, Justice White and Chief Justice Burger
turn the recent development of fundamental rights on its head;
they have behaved in an intellectually dishonest manner by subscribing to nonoriginalism in interpreting homosexual rights, but
10 3
subscribing to originalism in interpreting heterosexual rights.
Moreover, these justices fail to interpret the Constitution in the
context of present day society, a society much different than
that in 1787.104
The other extreme theory of constitutional interpretation is
nonoriginalism.' 08 Here, the text and original history are accorded a good deal of weight, but are not dispositive 08 Instead,
those factors are manipulated in light of changing experiences
and perceptions.1 0 7 From this theory evolves the notion of "the
living Constitution.' ' 10 8
The dissents in Hardwick clearly embrace the interpretive
or nonoriginalist theory.109 Justices Blackmun and Stevens adhere to the right of privacy as set forth in decisions beginning
with Griswold, and most notably, Roe."0 The dissenters reason
103. Compare Roe, 410 U.S. at 113 (confirming heterosexuals' right of privacy)
with Hardwick, 106 S.Ct. at 2841 (denying homosexuals the right of privacy).
104. Brest, supra note 91, at 220-21. See also Munzer & Nickel, supra note 95.
Munzer and Nickel contemplated the notion of a flexible constitution, arguing that the
document must be able to adapt to changing needs of a developing society. Id. at 1029.
Its meaning today must necessarily be different than its meaning when first adopted
because the document is still vital, despite the lack of formal amendments. Id.
105. Brest, supra note 91. Nonoriginalism, as a theory, focuses on not just the Constitution, but decisions of all courts and of other institutions. Id. at 225.
106. Id. at 205.
107. Id. at 220-21. See also supra note 104 for a discussion of the need to view the
Constitution in light of a changing America.
108. Grey, supra note 91, at 709. Grey expounded on this notion, claiming that
Constitutional provisions suggest restraints on government while simultaneously giving
the judiciary sufficient flexibility to develop and change the context of rights over time.
Id. The danger here, however, is that judges, not being elected officials, are insulated
from the political process. Hence they are immune from accountability to the general
public for unwarranted interpretations of the Constitution.
109. Hardwick, 106 S. Ct. at 2848-56 (Blackmun, J., dissenting); id. at 2856-59
(Stevens, J., dissenting). For instance, Justices Blackmun and Stevens centered their argument on the penumbra of the first and fourth amendments, and the equal protection
argument. As to the historical tool employed by the plurality, Justice Blackmun angrily
replied that "[i]t is revolting if the grounds upon which [the rule] was laid down have
vanished long since, and the rule simply persists from blind imitation of the past." Id. at
2848 (Blackmun, J., dissenting).
110. See, e.g., Roe, 410 U.S. at 113 (use of text to expand scope of privacy interest
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that society has changed since the Constitution was drafted, and
in light of recent societal developments, it is reasonable and
even necessary that homosexuals be afforded the same privacy
rights as heterosexuals."' This is the classic fourteenth amendment equal protection argument." 2
It is curious, and perhaps even suspect, that the Roe decision emphasized the penumbra of the Bill of Rights, whereas the
Hardwick decision emphasized history.1 1 3 With similar privacy
rights asserted in both cases, why did the Court change its
method of constitutional interpretation? More important, why
did the Court freely admit that the Georgia law distinguished
between homosexuals and heterosexuals, thereby fueling the fire
of an already burning equal protection argument? Unfortunately, there seem to be no principled answers to these
questions.
In fact, the whole Court did not alter its view of constitutional construction at all. Instead, individual members of the
Court, including Chief Justice Burger and Justice Powell,
changed their position on the right of privacy from a liberal interpretivist one in Roe,'1 4 to a restrictive originalist one in Hardwick.1 1 5 Additionally, Justice O'Connor's replacement of Justice
Stewart added another restrictive originalist to the Court. 1 "
It is difficult to ascertain the reasons for the shift in Chief
Justice Burger's rationale from Roe to Hardwick - both concurto cover abortion); Griswold, 381 U.S. at 479 (use of text to expand scope of privacy
interest to cover contraception).
111. Hardwick, 106 S. Ct. at 2848-56 (Blackmun, J., dissenting; Stevens J., joining).
112. See infra note 126 and accompanying text for an analysis of homosexuals as a
classification warranting special judicial protection.
113. See Hardwick, 106 S. Ct. at 2844; Roe, 410 U.S. at 152-53.
114. See Doe v. Bolton, 410 U.S. 207-08 (companion case to Roe, Burger, C.J., concurring) (Georgia and Texas statutes at issue impermissibly limited the performance of
abortions to protect the health of pregnant women); Roe, 410 U.S. at 115-52 (Powell, J.,
joining the majority) (pregnant women have an unqualified right to determine whether
or not to have an abortion in the first trimester).
115. See Hardwick, 106 S. Ct. at 2847 (Burger, C.J., concurring) (no right to commit homosexual sodomy); id. at 2847-48 (Powell, J., concurring) (no substantive right
under the fourteenth amendment to commit consensual homosexual sodomy).
116. Compare Roe, 410 U.S. at 167 (Stewart, J., concurring) with Hardwick, 106 S.
Ct at 2842 (O'Connor, J., joining the plurality). Justice Stewart lauded the Court's effort
in Roe in interpreting the libery interest of the fourteenth amendment in a broad fashion. Roe, 410 U.S. at 170. Justice O'Connor, on the other hand, by joining the plurality,
lauded the Court's effort in Hardwick in interpreting the fourteenth amendment in a
narrow fashion. Hardwick, 106 S. Ct. at 2842. Clearly, these positions are polar.
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ring opinions were short and conclusory. He decided in Roe,
based on the text of the Constitution, that the abortion statutes
at issue were unduly burdensome on the woman's freedom of
choice when measured against the fundamental interest at
stake.1 1 7 Conversely, Chief Justice Burger held in Hardwick that
the right of privacy validated in Roe was not the same right
when applied to homosexual expression. " 8 He supported this
conclusion not through the use of the text, but through the use
of history, and provided no explanation for his switch in
methodology. " 9
Justice Powell similarly changed his views regarding privacy
rights from Roe to Hardwick.20 Ultimately, the holding in Roe
rested upon the fundamental nature of procreative rights. 21 History was not a dispositive tool, despite its lengthy development
in the majority's opinion. 2
117. Bolton, 410 U.S. at 207.08 (Burger, C.J., concurring).
118. Hardwick, 106 S. Ct. at 2847 (Burger, C.J., concurring).
119. Id. It is critical to note that Chief Justice Burger neither referred to the history at the time the Constitution was drafted, nor to the history of the past several
decades. Instead, he cited the ancient history of sodomy dating back to the Bible and
Henry VII. Id. This is a recurring problem with the historical tool: which history should
be used as guidance? See Macgill, supra note 69, at 691-92 where he adopted Justice
Peters' contention in Cologne v. Westfarms Assocs., 192 Conn. 48, 76-80, 469 A.2d 1201,
1215-17 (1984), that the historical tool is to be avoided wherever possible.
Macgill denounced the historical tool by charging that it "cannot yield sufficiently
determinate answers to present questions to supply a basis for deciding them authoritatively and without taint of arbitrariness." Id. at 692. Therefore, Macgill continued, it is
necessary to view the Constitution in a broad fashion so as not to limit new rights in the
future. Id.
120. Compare Roe, 410 U.S. at 115-52 (Powell, J., joining the plurality) with Hardwick, 106 S. Ct. at 2847-48 (Powell, J., concurring). Justice Powell condoned an expansive view of the right of privacy in Roe by analyzing the text of the Constitution and
granting it the status of a living document. Roe, 410 U.S. at 152 (Powell, J., joining the
plurality). Though the Constitution does not explicitly mention any right of privacy,
such a right has been found stemming from the Bill of Rights. Id. In Hardwick, on the
other hand, Justice Powell declared that the right of privacy does not extend to homosexuals; therefore, such individuals cannot assert a substantive due process claim. Hardwick, 106 S. CL at 2847 (Powell, J., concurring). Justice Powell specifically avoided the
equal protection analysis arguably warranted by the disparate treatment of homosexual
and heterosexual privacy. Id.
121. Roe, 410 U.S. at 152.
122. See id. at 129-52. The majority decision traces the history of abortion from
the common law (abortion never firmly established as a common law offense) to English
statutory law (abortion of quick fetus a capital crime) to early American law (abortion
before quickening a misdemeanor; after quickening, manslaughter), to the present day
(quickening distinction abolished). Id. Quickening is defined as "[t]he first motion of the
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It is difficult to muster any support for these changed attitudes in Hardwick other than a preconceived notion that homosexual activity is immoral. Certainly, a state may exercise its police power to legislate for the general welfare, which includes the
power to legislate morality. 12 But, where a state law does not
adequately represent the limits of public tolerance of a particular "repulsive" act, then the law loses it validity.12 ' Furthermore,
a law which invidiously discriminates between broad classes of
people who have suffered from a history of discrimination, and
whose status arguably cannot be attributed to individual free
choice, must be subjected to heightened judicial scrutiny under
the Equal Protection Clause.12 5 Therefore, Chief Justice Burger
fetus in the womb felt by the mother, occurring usually about the middle of the term of
pregnancy." BLACK'S LAW DICTIONARY 1122 (5th ed. 1979).
123. See Hardwick, 106 S. Ct. at 2846. See also Roe, 410 U.S. at 117 (citing Lochner v. New York, 198 U.S. 45, 76 (1905)) (Holmes, J., dissenting) for a contrary view of
how nonmainstream ideas should be treated. In Lochner, Justice Holmes asserted that
"[the Constitution] is made for people of fundamentally differing views, and the accident
of our finding certain opinions natural and familiar or novel and even shocking ought not
to conclude our judgment upon the question whether statutes embodying them conflict
with the Constitution of the United States." Lochner, 198 U.S. at 76.
124. See supra note 9 for a discussion of the implications of upholding laws that
are not adequately enforced.
125. See Comment, Dronenburgv. Zech: JudicialRestraint or JudicialPrejudice?,
3 YALE L. & POL'Y REv. 245 (1984). The author argued that the classification promulgated by the Supreme Court relating to homosexuals easily satisfied the definition of a
suspect class. Id. at 254. First, the author argued that homosexuals have suffered a long
history of discrimination dating back to the Bible. Id. Second, homosexuality as a trait is
irrelevant to job performance. Id. Third, homosexuals are visible if they have accepted
their "gayness" and have openly admitted this to the public. Id. Fourth, homosexuals are
politically powerless as evidenced by discrimination in housing, employment, child custody, and the right to marry. Id. at 254-55. Finally, the author noted that homosexuality
is not a conscious choice. Id. at 255. See also Status of Sexual Orientation,supra note
88, at 1305. The author suggested that homosexuals should be a suspect classification
"because homosexuality is a determinative feature of personhood and because gay people
have historically been victims of stigmatization and discrimination ...
."
Id. at 1305.
Once a group falls into a suspect classification, the level of judicial scrutiny becomes
strict, demanding a compelling state interest, and demanding that the means implemented to achieve its goal be narrowly tailored. Id. at 256. This is to assure that "discrete and insular minorities" are afforded necessary protection from majoritarian
processes that are usually insensitive to the plight of less fortunate individuals. United
States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1937). Carolene validated the
Filled Milk Act enacted by Congress to define adulterated milk for purposes of interstate
commerce. Id. at 147. In perhaps the most famous footnote in constitutional jurisprudence, Justice Stone contended that "discrete and insular minorities" unprotected by
political processes must be subject to a "correspondingly more searching judicial inquiry." Id. at 153 n.4.
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and Justice Powell seriously offend the constitutional rights of
homosexuals by advocating a less intrusive scrutiny of Georgia's
sodomy law-a law that, as applied by the Court, unfairly burdens a disadvantaged class.
V.
IMPACT
The Hardwick decision will not have a marked impact on
the courts since it merely reaffirms the traditional belief that
homosexuals do not have a fundamental right of privacy.12 The
Perhaps the most troublesome aspect of the determination of whether homosexuals
constitute a suspect class is whether such a status is freely chosen, or in the alternative,
whether homosexuals are victims. There is a plethora of information arguing that homosexuals are indeed victims of an unchosen status, one determined at birth or in early
childhood. See D.
ALTMAN, THE HoMOSEXUALIZATION OF AMERICA, THE AMERICANIZATION
OF THE HOMOSEXUAL 44 (1982). Altman stated that there is arguably a strong biological
basis for homosexuality. Id. He explained that the widespread practice of bisexuality
cannot refute the notion that homosexuality is determined by genes. Id. Bisexuality is
merely a refuge of those who cannot accept their sexual predispositions. Id. at 44-45. See
also B. WOLMAN, HANDBOOK OF CLINICAL PSYCHOLOGY 164 (1965) (adult male homosexuality biologically determined as a result of genetic imbalance).
There are psychiatrists who feel that homosexuality is a chosen status and that
homosexuals can control their behavior. If this were the accepted opinion of most state
legislatures, the proper course would be to prohibit punishment for the status of being a
homosexual, but permit punishment for homosexual acts. Robinson v. California, 370
U.S. 660 (1962). In that case, a California statute that made it a misdemeanor for any
person to be a drug addict violated the eighth and fourteenth amendments. Id. at 666.
Since many states have passed legislation favorable to homosexuals, it can be assumed that homosexuals are not politically powerless; this, of course, weakens the argument that homosexuals are deserving of heightened judicial scrutiny. However, since
only one-half of all states have passed such legislation, homosexuals are still fighting an
uphill battle.
A comparison of the decisions of Justices Brennan and Powell in Frontiero v. Richardson, 411 U.S. 677 (1973), illustrates the different viewpoints on how the Court should
treat a class of individuals where some state legislatures have provided some protection
for a disadvantaged class. In this case, a married woman serving as an Air Force officer
sought increased medical benefits for her husband, who was her dependent. Id. at 680.
Applicable statutes provided that the wives of male Air Force officers were automatically
considered dependents for purposes of obtaining medical and dental benefits, but husbands of female Air Force officers had to actually be dependent on their wives for more
than one-half of their support. Id. Justice Brennan, writing for the majority, held that
gender classifications are inherently suspect. Id. at 688. Justice Powell, concurring in the
judgment that the challenged statutes violated the Due Process Clause, wrote that it was
unnecessary for the Court to characterize sex as a suspect classification since states were
at that time debating the judicial status of women via the Equal Rights Amendment. Id.
at 692 (Powell J., concurring). By acting prematurely, reasoned Justice Powell, the Court
would be usurping the democratic function of the state legislatures. Id.
126. See, e.g., Hardwick, 106 S. Ct. at 2841 (homosexuals do not have fundamental
right to engage in consensual sodomy); Dronenburg,741 F.2d at 1579 (same); Common-
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decision, however, could have a significant effect on homosexuals
in the psychological sense in as much as they have now been
labeled criminals for engaging in intimate relations. 127 More important, this decision leaves state courts little guidance in dealing with their sodomy statutes. 128 The present state of the law is
confused and the Court here acknowledged its confusion by
passing the buck to the legislatures,
and by distancing itself
29
from the specific facts at bar.1
Moreover, the Hardwick decision runs counter to mainstream American attitudes as depicted by the recent repeal and/
or modification of fornication and cohabitation statutes. 3 0 This
trend toward increasingly liberal attitudes regarding what have
been considered nonmainstream sexual practices illustrates that
homosexual activity has been singled out by the Court for diswealth's Att'y, 403 F. Supp. at 1199 (same).
127. See R. ACHTENBERG, SEXUAL ORIENTATION AND THE LAW, section 11.01[2)
(1985). Achtenberg stated that "[o]ne must also recognize the psychological effect of being labelled a criminal and the sociological stigma which gives rise to and then, again,
results from discriminatory manifestations of 'homophobia.'" Id. at section 11-14.
128. The plurality opinion deferred to the Georgia legislature's expertise. Hardwick, 106 S. Ct. at 2846. Justice Blackmun's dissent, however, challenged the plurality's
treatment of the Georgia statute. Id. at 2848 (Blackmun, J., dissenting). The Court focused on homosexual sodomy notwithstanding that the statute provided "[a] person
commits the offense of sodomy . . . " thereby illustrating that the statute is neutral
with regard to sexual orientation. Id. (emphasis added). See also Macgill, supra note 69,
at 703, acknowledging that "buck-passing by the Court illustrates a genuinely perplexed
reaction to complications that would have to be addressed in the future."
129. See supra note 128 for a discussion of how the plurality passed the buck to
the legislature.
130. Fornication has been defined as "unlawful sexual intercourse between two unmarried persons." BLACK'S LAW DICTIONARY 588 (5th ed. 1979). This crime is seldom
enforced. Id. Cohabitation has been defined as "livfing] together as husband and wife."
Id. at 236.
Specifically, Connecticut has repealed its prohibition of fornication. CONN. GEN.
STAT. § 53-219 (1971). Also, Wisconsin has modified its prohibition of fornication to include only public acts with a person aged 16-18. Wis. STAT. § 944.15 (Supp. 1985).
In another case, a New Jersey fornication statute, defined by the marital status of
the woman, was held an unconstitutional violation of the right of privacy. State v. Saunders, 75 N.J. 217, 217-19, 381 A.2d 337 (1977). Moreover, the state's interests in preventing veneral disease, preventing an increase in the number of illegitimate children, protecting marital relationships, and protecting public morals were not sufficiently
compelling to sustain the law. Id. at 219, 381 A.2d at 341-42. The court stated that "[t]o
the extent that [the statute] serves as an official sanction of certain conceptions of desirable lifestyles, social mores or individualized beliefs, it is not an appropriate exercise of
the police power." Id. at 219, 381 A.2d at 341-42.
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favored treatment.' 3 '
Perhaps an even more problematic aspect of the Hardwick
decision is its ignorance of evolving social views regarding consensual sodomy in particular. 1 32 Most Americans believe that the
states should not have the right to prohibit particular sexual
practices conducted in private between consenting adult men
and women. 33 This being true, Hardwick will foster general contempt for the law.
VI.
CONCLUSION
The Court failed to acknowledge today's society as vastly
3 A large majority
different from that of the Founding Fathers."
of our citizens feel that homosexual sodomy is not a heinous act
and should not be labeled criminal. 35 This illustrates that the
Supreme Court, isolated from outside political pressures, is also
isolated from Twentieth Century thought. Those who desire judicial consistency in dealing with rights of privacy can only hope
that when the Court's membership changes, and the issue again
surfaces, Hardwick will be overturned.
Margaret J. Siderides
131. See supra note 130 for an illustration of how consensual sodomy has been
singled out for disfavored treatment.
132. See Ogden, Bowers v. Hardwick . . . Or Does it Try to Fossilize the Constitution?, Legal Times, July 21, 1986, at 5, col. 1, at 12, col. 1. This commentary noted that
in the 1980s, up to 90 percent of all married couples have engaged in sodomy as proscribed by the Georgia statute and almost 80 percent of all Americans view oral sex as a
normal activity. Id., July 21, 1986, at 12, col. 1.
133. See Ogden, supra note 132, July 21, 1986, at 12, col. 3. A Newsweek poll taken
after the Hardwick decision was handed down indicated that 57 percent of the American
people believe that the states should not, in their discretion, be permitted to prevent
private consensual sodomy between homosexual adults. Id.
134. See supra note 102 for a discussion of how society has changed. See also
Ogden, supra note 132, July 21, 1986, at 12, col. 1. Ogden asserted that this decision
"threatens to fossilize the Constitution," because it considers it irrelevant that homosexual conduct today has a far different social context and psychological significance than it
did at the time the Constitution was drafted. Ogden, supra note 132, July 21, 1986, at 5,
col. 1.
135. See supra notes 132-33 for a discussion of the present attitudes of Americans
regarding homosexual behavior.