BOWERS v. HARD WICK: IS THERE A
RIGHT TO PRIVACY?
MARK JOHN KAPPELHOFF
[F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow offreedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.1
-Justice Robert H.Jackson
INTRODUCTION
The right of citizens to be free from the stifling grips of unwarranted governmental intervention is an inherent principle of American society. 2 Indeed, some have argued that this right is at the core
of our nation's constitutionally based government, with its traditional commitment to an unyielding protection of individual liberties. 3 It is ironic then, that in spite of this history, Americans are
vulnerable to the most intrusive invasion of a person's liberty: statu1. West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 641-42 (1943).
2. See A. DE TOCqUEVILLE, DEMOCRACY IN AMERICA 99-103 (1949) (discussing importance of liberty and equality in American democracy); THE BILL OF RIGHTS 251-55 (B.
Schwartz ed. 1971). In the Declaration of Independence, which outlines the philosophy of the
American government, ThomasJefferson proclaimed that "all men are created equal" and are
"endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty,
and the pursuit of Happiness." The Declaration of Independence para. 2 (U.S. 1776). The
Bill of Rights emphasized the importance of these individual liberties. THE BILL OF RIGHTS,
supra, at 252 (arguing that Bill of Rights reflected "perfect equality of mankind by listing
private rights"). The founding fathers were influenced by political philosophers who supported individual freedom. See, e.g., J. LOCKE, Of Civil Government, in 5 THE WORKS OF JOHN
LOCKE 341 (Aalen pub. 1963) (stating that "no one ought to harm another in his (sic) life,
health, liberty, or possessions"); J. MILL, On Liberty, in 18 COLLECTED WORKS OF JOHN STEWART MILL 217, 220 (Robsom ed. 1977) (arguing that society may only apply its power to limit
individual freedom when necessary to protect others).
3. See Thornburgh v. American College of Obstetrics & Gynecology, 106 S. Ct. 2169,
2184 (1986) (stating that Supreme Court has long recognized that Constitution embodies
promise that certain individual liberties are beyond reach of government); cf. Olmstead v.
United States, 277 U.S. 438, 478 (1928) (Brandeis,J., dissenting) (stating that the most valued
right of all civilized men is right to be free from governmental intrusion). See generally Ludd,
The Aftermath of Doe v. Commonwealth's Attorney: In Search of the Right to be Let Alone, 10 U. DAYTON
L. REV. 705, 718-26 (1985) (offering historical perspective and critique of origins of right of
privacy); Nichol, Children of Distant Fathers: Sketching an Ethos of ConstitutionalLiberty, 1985 Wis.
L. REV. 1305, 1306-07 (outlining importance of American commitment to self-governance
and its influence on fundamental personal rights).
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tory criminalization of private, consensual sexual intimacy within the
4
home.
The United States Supreme Court most recently confronted the
sexual privacy issue in Bowers v. Hardwick.5 In Bowers, the Court examined the constitutionality of a Georgia statute that criminalized
the act of sodomy. 6 The statute applies to all persons, whether single or married, heterosexual or homosexual. 7 In August 1982, the
Atlanta police arrested and charged Michael Hardwick, a twentynine-year-old gay man, with committing the act of sodomy with another consenting male adult in Hardwick's bedroom.8 Although
Hardwick was not prosecuted under the statute, he nevertheless
challenged the constitutionality of the Georgia statute because he
feared future prosecution. 9 Hardwick asserted that the statute was
unconstitutional because it deprived him of the right to privacy with
respect to his intimate, consensual sexual conduct.1 0 The Supreme
Court disagreed, however, and found the statute constitutionally
4. See Bowers v. Hardwick, 106 S. Ct. 2841, 2847 (1986) (upholding constitutionality of
Georgia criminal sodomy statute as applied to homosexuals); Dronenbury v. Zech, 741 F.2d
1388, 1391 (D.C. Cir. 1984) (opinion ofJudge Bork) (holding right of privacy does not protect homosexual intimacy); Doe v. Commonwealth's Attorney, 403 F. Supp. 1199, 1205 (E.D.
Va. 1975) (three judge court) (upholding sodomy statute as not violative of right to privacy),
aff'd mem., 425 U.S. 901 (1976); cf.Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en banc)
(invalidating Texas criminal sodomy statute), cert. denied, 106 S. Ct. 3337 (1986); Post v.
Oklahoma, 715 P.2d 1105, 1109-10 (Okla. Crim. App.) (holding that statute criminalizing
heterosexual sodomy was unconstitutional, however, issue of homosexual conduct not decided), cert. denied, 107 S. Ct. 290 (1986). For an overview of the criminalization of certain
intimate behavior, see Rivera, Our Straight-LacedJudges: The Legal Position of Homosexual Persons
in the United States, 30 HASTINGS L.J. 799, 942-47 (1979) (noting Supreme Court's unwillingness to recognize and provide constitutional protection for homosexual conduct); Note, Survey on the ConstitutionalRight to Privacy in the Context of Homosexual Activity, 40 U. MIAmi L. REV.
521, 523-28 (1986) (discussing history of United States criminal sodomy statutes); see also
Richards, Homosexuality and the ConstitutionalRight to Privacy, 8 N.Y.U. REV. L. & Soc. CHANGE
311, 314 (1978-79) (arguing that right of privacy can be logically extended to homosexual
conduct).
5. 106 S. Ct. 2841 (1986).
6. GA. CODE ANN. § 16-6-2 (1984 & Supp. 1987). The statute provides that:
(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.
7. See id. The state of Georgia defended the statute only insofar as it criminalized homosexual sodomy. See Brief for Petitioner at 3-4, Bowers v. Hardwick, 106 S. Ct. 2841 (1986)
(stating intent to limit enforcement of statute to only homosexual conduct). Although 19
states currently outlaw all acts of sodomy, only five jurisdictions criminalize exclusively homosexual acts: Arkansas, Kansas, Montana, Nevada, and Texas. See Note, supra note 4, at 525 n.9
(providing text of five state statutes that prohibit homosexual sodomy).
8. Bowers v. Hardwick, 106 S. Ct. 2841, 2842 (1986).
9. Id.
10. Id.
Is THERE A RIGHT TO PRIVACY?4
1988]
489
valid as applied. I
The decision in Bowers diverged significantly from judicial precedent and has created confusion in a controversial area of constitutional law-due process protection of the right of consensual sexual
privacy. In its opinion, the Court refused to recognize consensual
homosexual and heterosexual conduct as a fundamental privacy
right that the due process clause of the fourteenth amendment protects.' 2 In reaching this conclusion, the Court disregarded prior
case law,' 3 and ignored our nation's tradition of providing freedom
from governmental intrusion into our lives and homes.' 4
This Note examines Bowers and its impact on the constitutional
protection of sexual privacy. Part I reviews the philosophical and
historical origins of the constitutional right of privacy. Part I also
discusses contemporary Supreme Court decisions involving privacy
rights and examines the evolution of a constitutionally protected
fundamental right to engage in private consensual sexual conduct.
Part II explains the factual and procedural history of Bowers and outlines the Court's holding. Part III analyzes the Supreme Court's decision in Bowers and critiques the Court's findings. This Note
concludes that Bowers conflicts with Supreme Court precedent and
has serious implications for the protection of individual liberty interests, especially sexual privacy.
I.
HISTORICAL AND CONSTITUTIONAL DEVELOPMENT
OF THE RIGHT TO PRIVACY
A.
HistoricalDevelopment of the Right to Privacy
The source of the right of privacy can be traced to the birth of our
nation and the framers' concern with protecting individual liberty. 15
11. Id at 2843-47.
12. Id. at 2846.
13. Id. at 2843-44. But see id. at 2850-52 (Blackmun,J., dissenting) (attacking majority for
its cramped reading of prior privacy precedent).
14. See supra notes 2-3 and accompanying text (discussing America's tradition of protecting individual liberty interests); see also Kent v. Dulles, 357 U.S. 116, 126 (1958) (declaring
that "outside areas of plainly harmful conduct, every American is left to shape his own life as
he thinks best, do what he pleases, go where he pleases" (quoting Edwards v. California, 314
U.S. 160 (1941))).
15. See Ludd, supra note 3, at 705-07 (outlining historical origins of right of privacy and
suggesting that right has its source in English libertarianism); see also THE FEDERALIST No. 10,
at 63-64 (J. Madison) (Tudor Pub. Co. 1937) (discussing liberty in context of American form
of government). Thomas Jefferson was a strong advocate of safeguarding individual liberty.
See Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), reprinted in THE BILL
OF RIGrs, supra note 2, at 998-1000 (stating that "right of personal freedom," like rights of
thinking or publishing, could not be "surrendered to the government"). Others have argued
in favor of protecting individual freedoms as well. SeeJ. MILL, supra note 2, at 220 (arguing
that protecting individual independence against encroachment by majority is "indispensable
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The founding fathers sought to balance a majoritarian form of government with the rights of individuals.' 6 Recognizing the inherent
tension created when the unchecked will of a majoritarian government infringes upon individual liberties, the framers emphasized the
importance of protecting the liberty interests of citizens who may
not have majoritarian political power. 17 To achieve that end,
Thomas Jefferson proposed adding a Bill of Rights to the Constitution to protect individual liberties from legislative abuse.' 8
Although James Madison, an advocate of majoritarian government,
initially resisted the idea, Jefferson eventually persuaded him to introduce the original Bill of Rights in the House of Representatives
onJune 8, 1789.19 Madison endorsed the Bill of Rights, referring to
it as a list of "private rights" that expresses "the perfect equality of
20
mankind."
Despite this celebrated heritage, it was not until 1928 that the
Supreme Court addressed whether individuals maintain certain privacy rights that fall within the context of constitutionally protected
liberty interests.2 1 In his famous dissenting opinion in Olmstead v.
United States, 22 Justice Brandeis explained how the drafters of our
to good condition of human affairs and is protection against political despotism"); Warren &
Brandeis, The Right to Privacy, 4 HARV. L. REv. 193, 196-97 (1890) (raising issue of right of
privacy for first time and urging states to give tort relief to persons whose private affairs are
exploited by others).
16. See THE FEDERALIST No. 10, at 77-78 (J. Madison) (Tudor Pub. Co. 1937) (arguing
that overbearing majority can destabilize government and harm public good); THE FEDERALIST No. 51, at 320-25 (J. Madison) (Tudor Pub. Co. 1937) (discussing need for judiciary to
monitor majoritarian legislature); see also THE FEDERALIST No. 51, at 350 (J. Madison) (Tudor
Pub. Co. 1937) (stating that separation of powers is necessary to secure rights of those in
minority); THE FEDERALIST No. 78 (A. Hamilton) (Tudor Pub. Co. 1937) (observing that liberty would be threatened by judiciary's union with other branches of government); cf. R.
DWORKIN, TAKING RIGHTS SERIOUSLY 131-49 (1977) (arguing that restraint of intolerant majority is necessary to protect rights of minority).
17. See THE FEDERALIST No. 51, at 353-58 (. Madison) (Tudor Pub. Co. 1937) (discussing need for judiciary to monitor legislature to protect individual liberties); THE FEDERALIST
No. 10, at 42-43 (. Madison) (Tudor Pub. Co. 1937) (discussing possible abuses of
majoritarian form of government); cf. Speech by Abraham Lincoln, reprinted in SELECTED
WRITINGS AND SPEECHES OF ABRAHAM LINCOLN 31, 31 (T. Williams ed. 1980) (stating that
basis of American government is affirmation of equal rights of all). See generally THE BILL OF
RIGHTS, supra note 2 (outlining historical development of Bill of Rights).
18. THE BILL OF RIGHTS, supra note 2, at 606-08.
19. Id. at 592-93. In 1787,Jefferson wrote Madison that people of every government are
entitled to a bill of rights. Id. at 607. Two years later, when Madison introduced the Bill of
Rights to the House of Representatives, Madison agreed with Jefferson and stated that he
wanted to extinguish any apprehension that anyone wished to deprive individuals of the liberty for which they fought. Id. at 1024.
20. Id. at 1029. The Supreme Court first echoed the founders' concern over protecting
minority points of view in its landmark decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137,
166 (1803) (developing judicial review to protect individual rights).
21. Olmstead v. United States, 227 U.S. 438 (1928) (Brandeis, J., dissenting).
22. Id. at 471 (stating that right of individual privacy is of utmost importance to individual liberty and should receive highest protection from governmental intrusion).
1988]
Is
THERE
A
RIGHT TO PRIVACY?
491
Constitution undertook to secure individual liberty rights. 23 Justice
Brandeis reemphasized that the framers conferred on the people
"as against the government the right to be let alone-the most comprehensive of rights and the right most valued by civilized man." '24
With this statement, Justice Brandeis laid a firm foundation for the
eventual Supreme Court recognition and protection of a constitu25
tionally based right to privacy.
B.
ConstitutionalDevelopment of Privacy
After our nation's celebrated heritage of protecting individual liberty interests evolved into a constitutional protection for privacy,
the Supreme Court eventually extended the right to privacy to include consensual sexual privacy. 26 Supreme Court decisions involving sexual privacy concerns over the past two decades have
primarily addressed three issues: the constitutional source of protection for sexual privacy, the extent of protection that should be
afforded that interest, and the appropriate standard to apply in de23. Id. at 477.
24. Id. at 478.
25. See id.at 478-79 (Brandeis, J., dissenting) (discussing how drafters of Constitution
conferred, "as against the government, the right to be let alone-the most comprehensive of
rights and the right most valued by civilized men"); see also supra notes 3 & 15 and accompanying text (discussing historical importance of right to privacy).
26. See Richards, Sexual Autonomy and the ConstitutionalRight to Privacy: A Case Study in
Human Rights and the Unwritten Constitution, 30 HASTINGS LJ. 957, 972-73 (1979) (explaining
evolution of right of privacy concept from Olmstead to sexual intimacy). The Supreme Court
has used both the fourth and first amendments to protect privacy interests. Id. at 973-74.
Privacy issues often arise in fourth amendment search and seizure cases. See Katz v. United
States, 389 U.S. 347, 350 (1967) (holding that expectation of privacy is protected from electronic eavesdropping under fourth amendment); cf. Mapp v. Ohio, 367 U.S. 643, 650 (1961)
(holding that evidence obtained in violation of fourth amendment is inadmissible in criminal
cases). See generally Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CH. L. REV.
665, 665-70 (1970) (explaining protection of privacy interests under fourth amendment).
The first amendment protects privacy under the right to associate doctrine. See Heffron v.
International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 643-46 (1981) (holding
that fair-goers have right not to associate with individuals soliciting religious donations).
The development of constitutional rights and protections is often encouraged by evolving
social mores. For example, the "women's movement" has had great influence on the changing legal position of women in our nation's society. See E. FLEXNER, CENTURY OF STRUGGLE:
THE WOMAN'S RIGHTS MOVEMENT INTHE UNITED STATES (1975) (analyzing influence of women's movement on American society and law). The Supreme Court appears to have reacted
to this societal evolution in the landmark decision in Roe v. Wade. See Roe v. Wade, 410 U.S.
113, 145 (1973) (establishing women's fundamental right to choose abortion).
Some legal scholars, however, do not acknowledge that society's changing mores influence
the Supreme Court, and argue in favor of a "neutral law" principle that is unaffected by social
mores. See J. ELY, DEMOCRACY AND DISTRUST (1980) (advocating need for neutral judiciary
free from personal opinions); Bork, NeutralPrinciplesand Some First Amendment Problems, 47 IND.
UJ. 1 (1971) (arguing against judicial activism and defending "original intent" analysis). But
see R. DWORKIN, supra note 16 (arguing that judiciary should consider contemporary social
mores rather than restrict itself to strict textual interpretation); cf. Tribe, The Puzzling Persistence
of Process Based ConstitutionalTheories, 89 YALE LJ. 1037 (1980) (criticizing Ely's neutral process
theory as itself being value laden).
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termining the constitutionality of an infringement of that interest.2 7
1.
Source of constitutionalprotection
To some extent, the degree of protection afforded sexual privacy
depends upon the specific constitutional provision that provides the
protection. 2 8 Although the Constitution does not explicitly enumerate a substantive guaranteed right to privacy, individuals have commonly looked to the due process clause of the fourteenth
amendment as the source of this right. 29 The fourteenth amendment specifically provides that no one shall be deprived of liberty
without due process of law. 30 Arguably, the right to privacy is one
aspect of this liberty interest.3 1 The Supreme Court has recognized
certain rights of personal privacy as part of the concept of liberty
embodied in the fourteenth amendment.3 2 These rights are "fundamental" and create a "zone of personal privacy."'3 3 Because fundamental rights are afforded the highest degree of constitutional
protection, 3 4 the issue of what constitutes a "fundamental right" is
crucial.
27. See Comment, Roe and Paris: Does Privacy Have a Principle?, 26 STAN. L. REV. 1161,
1168-70 (1974) (explaining difficulty in defining source and scope of right to privacy); see also
infra notes 83-102 and accompanying text (discussing compelling state interest and rational
basis standards).
28. See supra note 26 and accompanying text (discussing various constitutional sources
for right of privacy); see also infra note 29 (discussing theories of source of privacy right).
29. Paul v. Davis, 424 U.S. 693, 712 (1976); Roe v. Wade, 410 U.S. 113, 152 (1973);
Griswold v. Connecticut, 381 U.S. 479, 481-85 (1965). In Griswold, the Justices disagreed
about the source of the privacy right. Griswold, 381 U.S. at 480-95. Justice Douglas, writing
for the majority, found the privacy right in the penumbras of the first, fourth, fifth, and ninth
amendments. Id. at 484-85. Justice Goldberg argued that the ninth amendment establishes a
broad range of personal rights protected by the 5th and 14th amendments that are not specifically enumerated in the first eight amendments. Id. at 493 (Goldberg, J., concurring). Justice
Harlan, stating that privacy is "implicit in the concept of ordered liberty," argued that the
right was a basic part of due process guaranteed by the 14th amendment. Id. at 500 (Harlan,
J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). For an understanding of the right to privacy in terms of personal autonomy, see Richards, supra note 26, at 96475 (discussing evolution of right to privacy and its application to sexual intimacy).
30. U.S. CONST. amend. XIV, § 1. Section 1 of the 14th amendment provides in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Id.
31. See Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring) (contending that right to privacy is part of 14th amendment due process).
32. See Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535, 540 (1942) (protecting privacy in procreation under concept of ordered liberty); cf. Roe v. Wade, 410 U.S. 113, 153
(1973) (holding that privacy right, whether based on 14th amendment or on another constitutional provision, encompasses right to abortion); Griswold, 381 U.S. at 500 (Harlan,J., concurring) (basing privacy right to obtain contraception on 14th amendment).
33. Griswold, at 484-85.
34. See Bates v. City of Little Rock, 361 U.S. 516, 524 (1960) (stating that only compelling state interest can justify significant encroachment on important individual freedom).
1988]
Is
THERE
A
RIGHT TO PRIVACY?
493
2. Extent of the protected interest
a. Right to privacy in sexual intimacy
In Skinner v. Oklahoma ex rel. Williamson,35 the Supreme Court made
it clear that certain privacy rights are fundamental and are constitutionally protected under the fourteenth amendment. 36 In Skinner,
the Court considered the constitutionality of Oklahoma's Criminal
Sterilization Act, which authorized the sterilization of persons previously convicted two or more times of crimes "amounting to felonies
involving moral turpitude," and who are subsequently convicted of
another such felony and sentenced to prison.3 7 The Court held that
the statute violated the fourteenth amendment because it required
the sterilization of persons convicted of larceny, a crime of moral
turpitude under the statute, but not sterilization of persons committing the statutory crime of moral turpitude 8 Although the
Supreme Court in Skinner recognized a privacy interest in marriage
and procreation within the fourteenth amendment, the Court's use
of an equal protection analysis, rather than a substantive due process rationale, limited the extension of recognized privacy interests
to marital and procreative rights.3 9
In 1961, Justice Douglas' dissent in Poe v. Ullman 40 provided the
jurisprudential foundation for expanding the meaning of "liberty."'4 1 Justice Douglas did not merely advocate that the privacy of
35. 316 U.S. 535 (1942).
36. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
37. Skinner, 316 U.S. at 536 (quoting OKLA. STAT. ANN. tit. 57, § 171 (West 1935)). Skinner had been previously convicted of chicken-stealing and robbery prior to his most recent
robbery conviction. Id. at 537. All of his crimes were felonies involving moral turpitude
under the statute. Id.
38. Id. at 541. The Court believed that the two crimes were substantially similar and that
those convicted of larceny were unequally deprived of their fundamental rights of marriage
and procreation. Id. The facts in Skinner presented a purely scientific question of heredity and
habitual criminality, and the biological evidence overwhelmingly demonstrated that the statute was unreasonable. Foote, The Proper Role of the United States Supreme Court in Civil Liberties
Cases, 10 WAYNE L. REV. 457, 471 (1964).
39. See Skinner, 316 U.S. at 543-45 (Stone, J., concurring) (leaving open question of
whether marital and procreative rights would have received substantive due process protection had statute required sterilization of all criminals). The Court's opinion in Skinner has
been criticized for being too cautious in limiting its holding to the facts of the case. See Foote,
supra note 38, at 471-72 (arguing that Court should have declared fundamental right of privacy). For example, the Court could have used a broader due process argument instead of
deciding the case on narrow equal protection grounds. Id. at 472; cf. Lupu, Untangling the
Strands of the FourteenthAmendment, 77 MICH. L. REV. 981, 1019 (1979) (discussing influence of
"Lochner era" on Court's decision in Skinner).
The Supreme Court's equal protection holdings are not always interpreted in a narrow
fashion. See Zablocki v. Redhail, 434 U.S. 374, 381 (1978) (using equal protection analysis to
establish fundamental right to marriage for all persons instead of drafting narrow holding that
would only recognize poor person's right to marriage).
40. 367 U.S. 497, 509 (1961) (Douglas, J., dissenting).
41. Poe v. Ullman, 367 U.S. 497, 515-16 (1961) (Douglas, J., dissenting) (stating that
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the marital relationship deserved constitutional protection, but instead he generally condemned any governmental interference with
42
private intimate relations.
43
Five years later, in the landmark decision Griswold v. Connecticut,
the Court adopted Justice Douglas' reasoning in Poe and held that a
state statute forbidding the use of contraceptives or the dissemination of information concerning their usage violated the fundamental
right of marital privacy. 4 4 Justice Douglas, writing for the majority,
reasoned that a married couple's choice concerning birth control is
part of the fundamental right to privacy, which the state cannot intrude on without a showing of overriding need. 4 5 In his concurrence, Justice Harlan explained that the right to marital privacy is
one of the fundamental rights embodied in the fourteenth amend46
ment's due process clause.
Further expanding the fourteenth amendment's protection of privacy interests, the Court in Eisenstadtv. Baird4 7 extended the fundamental right to privacy to non-married couples. 4 8 Baird, a
statute making it criminal offense for married couples to use contraception deprives them of
"liberty" without due process of law under 14th amendment).
42. Id. at 511-18. Douglas wrote:
[Tio say that a legislature may do anything not within a specific guarantee of the
Constitution may be as crippling to a free society as to allow it to override specific
guarantees so long as what it does fails to shock the sensibilities of a majority of the
Court.
Id. at 518.
43. 381 U.S. 479 (1965).
44. Griswold v. Connecticut, 381 U.S. 479, 485 (1965). The Connecticut statute provides in pertinent part:
Any person who uses any drug, medicinal article or instrument for the purpose of
preventing conception shall be fined not less than fifty dollars or imprisoned not less
than sixty days nor more than one year or be both fined and imprisoned. Any person
who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.
CONN. GEN. STAT. §§ 54-196, 53-32 (1958), invalidated by Griswold v. Connecticut, 381 U.S.
479, 485 (1965).
45. Griswold, 381 U.S. at 485-86; cf id at 490 (Goldberg, J., concurring) (stressing individuals' right to be "let alone") (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting)). The Court has applied the due process theory used in Griswold in
other privacy cases. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 382 (1978) (recognizing due
process right to marriage); Roe v. Wade, 410 U.S. 113, 140-41 (1973) (granting due process
right to abortion services); Eisenstadt v. Baird, 405 U.S. 438, 444 (1972) (upholding single
individuals' right to procreation under both due process and equal protection clauses).
46. Griswold, 381 U.S. at 500-01 (Harlan, J., concurring) (arguing that 14th amendment
liberties are not limited to rights expressed elsewhere in Constitution). Justice Harlan's perspective has prevailed in subsequent privacy cases. See Cleveland Bd. of Educ. v. LaFleur, 414
U.S. 632, 639-40 (1979) (noting that Court has "long recognized that freedom of personal
choice in matters of marriage and family life is one of the liberties protected by the due process clause of the fourteenth amendment"); Roe v. Wade, 410 U.S. 113, 153 (1973) (holding
that right of privacy arises from 14th amendment concept of personal liberty).
47. 405 U.S. 438 (1972).
48. Eisenstadt v. Baird, 405 U.S. 438, 444 (1972) (holding that state cannot deny single
(or married) individual's right to contraception); cf. Carey v. Population Servs. Int'l, 431 U.S.
1988]
Is THERE A
RIGHT TO PRIVACY?
495
university professor, was convicted of violating a Massachusetts
criminal statute after he exhibited and then gave a contraceptive to a
young, single woman at the end of his lecture. 49 The Court held
that the statute violated the privacy rights of single persons under
the equal protection clause of the fourteenth amendment. 50 In
overturning Baird's conviction, the Court explicitly established 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." 51
In the landmark decision of Roe v. Wade, 52 the Court further expanded its recognition of fundamental privacy rights to include a
woman's right to choose to terminate her pregnancy. 53 A single woman brought a class action suit challenging the constitutionality of a
Texas criminal abortion law that proscribed procuring or attempting an abortion except on medical advice for the purpose of saving
the mother's life. 54 The Court held that the statute was violative of
the fourteenth amendment's due process clause. 55 Justice Black678, 694 (1977) (holding that state cannot prohibit either distribution of nonmedical contraceptives to adults or sales of such contraceptives to persons under 16 who do not have approval of licensed physician).
Five years before Eisenstadt, the Court, in Loving v. Virginia, noted that freedom to marry had
long been recognized as one of the vital personal rights essential to an individual's pursuit of
happiness and was therefore a constitutionally protected fundamental right. See 388 U.S. 1,
12 (1967) (holding that state may not prevent marriage between persons solely because they
are of different races). In Loving, the Court identified marriage as a "fundamental freedom"
and concluded that state laws which significantly interfere with this right must pass a rigorous
scrutiny test. Id. at 21. Loving, a white man, was convicted of marrying a black woman in
violation of a Virginia antimiscegenation statute. Id. at 2. Contrary to Skinner, in which the
Court limited its holding to scientific evidence of the statute's ineffectiveness, the Court in
Loving read the due process clause of the 14th amendment broadly to invalidate the statute.
Id. at 20; see supra notes 36-39 and accompanying text (discussing how Court limited its decision in Skinner to specific facts).
49. Eisenstadt, 405 U.S. at 440. Baird violated § 272 of the Massachusetts criminal statutes, which provides that:
Whoever sells, lends, gives away, exhibits or offers to sell, lend or give away an...
instrument or article whatever for the prevention of conception or for causing unlawful abortion ...shall be punished by imprisonment... for not more than five years
...or by a fine of not less than one hundred nor more than one thousand dollars.
MAss. GEN. LAws ANN. ch. 272, § 21 (West 1972).
50. Eisenstadt, 405 U.S. at 453. Justice Brennan, writing for the majority, explained that
under an equal protection analysis the Court's holding was a logical extension of Griswold. Id.
51. Id.
52. 413 U.S. 113 (1973).
53. See Roe v. Wade, 413 U.S. 113, 152-56 (1973) (explaining Court's extension of right
of privacy beyond Griswold and Eisenstadt). In a companion case, Doe v. Bolton, 410 U.S. 179
(1973), the Court invalidated a Georgia abortion statute that imposed residency requirements
on women seeking abortions. Id. at 181. The Court based its decision in Bolton on the fact
that the state statute regulating abortions was not sufficiently related to achieving state objectives. Id. at 184.
54. Roe, 413 U.S. at 120-22.
55. Id. at 152-53, 164.
496
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
mun, writing for the majority in Roe, explained that a woman has a
fundamental privacy interest in determining whether to terminate
her pregnancy, and that this right cannot be limited without the
56
state showing a compelling interest to do so.
Taken together, the line of cases from Skinner to Roe 5 7 and their
progeny establishes and defines the fundamental sexual privacy interests that are implicit in the liberty that the fourteenth amendment
protects. 58 The core of these interests includes the right to make
60
59
fundamental decisions concerning family life, whom to marry,
and whether to bear or beget a child. 6 1 This "zone of privacy,"
found within the liberty recognized under the fourteenth amendment's due process clause, has never "been reduced to any
formula" nor "determined by reference to any code." 6 2 Rather, it
has been a "living thing" 63 that evolves over time, with lines drawn
and redrawn, in response to changing individual and societal mores,
and is only limited by the "solid recognition of the basic values that
underlie our society." 64 Recognizing private, consensual sexual behavior as a fundamental right that should be protected under the
Constitution is therefore a logical progression in a long history of
65
cases.
56. Id. at 152-53.
57. See supra notes 35-56 and accompanying text (outlining development of right of privacy). These cases, however, represent only the core of the fundamental privacy right. See
Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977) (broadening prior privacy cases to
forbid states from prohibiting distribution of nonmedical contraceptives).
58. See Roe v. Wade, 410 U.S. 113, 152-56 (1973) (recognizing privacy interest in woman's right to abortion); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (stating 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") (emphasis in original); see also Heymann & Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U.L. REv. 765, 766-76 (1973)
(outlining scope of right of privacy after Roe).
59. See Moore v. City of East Cleveland, 431 U.S. 494, 500 (1977) (holding local ordinance unconstitutional because it restricted living arrangements within sanctity of home).
60. See Zablocki v. Redhail, 434 U.S. 374, 380 (1978) (granting fundamental right to
marriage); Loving v. Virginia, 388 U.S. 1, 12 (1967) (recognizing marriage decisions as within
privacy interest protected under 14th amendment).
61. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 700-01 (1977) (holding that
state cannot prohibit distribution of nonmedical contraceptives to adults); Roe v. Wade, 410
U.S. 113, 125 (1973) (recognizing fundamental woman's right to choose whether to terminate
her pregnancy); Griswold v. Connecticut, 381 U.S. 479,481 (1965) (protecting marital privacy
and right to contraception).
62. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).
63. Id. at 542.
64. Moore v. City of East Cleveland, 431 U.S. 494, 503 (plurality opinion) (citing Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring)).
65. See supra notes 35-56 and accompanying text (outlining evolution of right of privacy);
see also Richards, supra note 4, at 314 (arguing that "[t]here is no principled way to defend the
earlier right to privacy cases and not extend the right to homosexuality").
1988]
Is
THERE
A
RIGHT TO PRIVACY?
497
b. Right to privacy extended to homosexual conduct
Lower courts, applying the rationale developed in Supreme Court
privacy cases, have recognized a fundamental right to engage in private consensual homosexual conduct. 66 The New York Court of
Appeals, in People v. Onofre,67 ruled that federal constitutional law
invalidated a state statute criminalizing any act of sodomy between
two consenting persons. 68 The court reasoned that the United
States Constitution prevents the states from unduly interfering in
certain individual decisions critical to personal autonomy because
those decisions are private and beyond the legitimate reach of a civilized society. 69 The court held that homosexual conduct falls within
the privacy rights outlined in the Griswold-Roe line of cases. 70 The
Supreme Court's precedent, therefore, provided the impetus for
lower courts to recognize the right to homosexual privacy. 71
c. Sexual privacy rights within the home
The Supreme Court has a long history of affording constitutional
protection to the sanctity of the home. 72 This protection is related
to the other special privacy rights that attach to marriage, procreation, motherhood, child rearing, and education. 73 This "zone of
66. See People v. Onofre, 51 N.Y.2d 476, 488, 415 N.E.2d 936, 940, 434 N.Y.S.2d 947,
951 (1980) (holding that homosexual activity is protected under right to privacy); see also
Lovisi v. Slayton, 363 F. Supp. 620, 625 (E.D. Va. 1973), aft'd, 539 F.2d 349 (4th Cir. 1974),
cert. denied, 429 U.S. 977 (1976) (discussing extension of privacy right involving sodomy between married and single adults).
67. 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980).
68. People v. Onofre, 51 N.Y.2d 476, 491-94, 415 N.E.2d 936, 942-43, 434 N.Y.S.2d
947, 952-54 (1980).
69. Id.
70. Id. at 488, 415 N.E.2d at 940, 434 N.Y.S.2d at 951; see also supra notes 35-56 and
accompanying text (outlining evolution of right of privacy).
71. See generally Richards, supra note 4, at 314 (discussing impact of early privacy cases).
72. See, e.g., Payton v. New York, 445 U.S. 573, 603 (1980) (overturning conviction that
resulted from warrantless and nonconsensual entry into defendant's home to effect arrest);
Stanley v. Georgia, 394 U.S. 557, 577 (1969) (holding that 1st and 14th amendments protect
possession of obscene materials in private home); Griswold v. Connecticut, 381 U.S. 479,
485-86 (1965) (noting that intrusion into home to enforce anti-contraception statute is constitutionally intolerable); Boyd v. United States, 116 U.S. 616, 630 (1886) (stating that "the
essence of a Fourth Amendment violation is not the breaking of a person's doors, and the
rummaging of his drawers, but rather is the invasion of his indefeasible right of personal
security, personal liberty and private property"); see also Ely, The Wages of Crying Wolf" A Comment on Roe v. Wade, 77 YALE hJ. 920, 930 (1973) (arguing that most valid basis of Court's
holding in Griswold is sanctity of home rather than general right to use contraception). See
generally Lupu, supra note 39, at 1041 (stating that both 4th and 14th amendment issues are
generally implicated when state intrudes into home to enforce statute).
73. See Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (stating that right of privacy
guarantees right to decide whether to bear a child); Loving v. Virginia, 388 U.S. 1, 12 (1967)
(finding right of privacy in marriage relationship); Skinner v. Oklahoma ev rel. Williamson, 316
U.S. 535, 541-42 (1942) (holding that right of privacy protects personal decision about procreation); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (stating that right of privacy
498
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
privacy" is most broadly defined when bounded by the dimensions
of an individual's home, 74 although the Court has extended the
right of privacy to certain activities occurring within the home that
would not normally merit constitutional protection if they occurred
75
outside the home.
In Stanley v. Georgia,76 for example, police officers, while executing
a valid search warrant, found obscene films in the defendant's
home.7 7 The defendant was charged with possession of obscene
material pursuant to Georgia law. 78 The Supreme Court held that
although a state may regulate the public dissemination of constitu-
tionally unprotected obscene materials, 79 it cannot criminalize the
purely private possession of such materials at home.80 Although the
defendant's first amendment interest was insufficient to allow public
viewing of obscene material, his first amendment right, coupled with
the element of privacy, heightened the constitutional protection afforded the defendant. 8 ' The state was unable to satisfy this heightened compelling state interest burden and therefore the statute was
82
struck down.
3.
Standards of constitutional review for privacy cases
a. Compelling state interest test
When privacy interests conflict with a state statute, the Supreme
Court generally applies either a compelling state interest test8 3 or a
includes decisions concerning childrearing and children's education); see also Lupu, supra note
39, at 1041-42 (explaining extension of privacy right to variety of interests).
74. See Payton v. New York, 445 U.S. 573, 580 (1980) (overturning gambling conviction
because surveillance was done within defendant's bedroom without warrant or consent); Stanley v. Georgia, 394 U.S. 557, 565 (1969) (protecting right to possess obscene materials in
private home). But see Belle Terre v. Boraas, 416 U.S. 1, 7 (1974) (holding that zoning restriction prohibiting use of single family homes by unrelated persons involved no right of privacy).
75. Compare Paris Adult Theaters I v. Slaton, 413 U.S. 49, 66 (1973) (finding no constitutional right publicly to show obscene films to consenting adults) and United States v. Orito,
413 U.S. 139, 142 (1973) (affording no constitutional protection to public distribution of obscene movies) with Stanley v. Georgia, 394 U.S. 557, 557-65 (1969) (finding that although
there is no per se constitutional protection for possession of obscene material, possession
within the home receives constitutional protection).
76. 393 U.S. 557 (1969).
77. Stanley v. Georgia, 393 U.S. 557, 558 (1969).
78. Id. (citing GA. CODE ANN. § 26-6301 (Supp. 1968)).
79. Id. at 565.
80. Id. at 568; see also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (stating that expectation of privacy in home is high and activities conducted in privacy of
home deserve more constitutional protection than activities and statements exposed to
public).
81. Stanley, 394 U.S. at 579.
82. Id. at 565.
83. See Lupu, supra note 39, at 1029-30 (explaining Court's application of stricter compelling state interest test when state impinges on fundamental, preferred liberty interest).
Under a compelling state interest test the state must show that a statute regulating a funda-
1988]
Is THERE A RIGHT TO PRIVACY?
rational basis test.8 4 If a statute infringes upon a fundamental pri-
vacy right, the Court scrutinizes the statute to determine whether its
objective has a close relationship with a compelling state interest.8 5
This compelling state interest test is considered the highest degree
ofjudicial scrutiny8 6 and arguably it may be outcome-determinative
7
because the state is unlikely to overcome such a burden.
For example, the Court applied the compelling state interest test
in Roe v. Wade. 88 In Roe, the Court expanded the protected right to
privacy to include a woman's right to decide whether to have an
abortion. 89 The Court noted, however, that this right was not absolute;90 an individual's right to privacy must be weighed against the
state's interest in regulating the behavior at issue. 9' The Court in
Roe found that the state had a compelling interest in protecting potential life and the life of the mother.92 The majority held, however,
that potential life is not implicated until the third trimester of pregnancy, when a fetus becomes viable. 93 The Court also held that the
mother's health is not implicated during the first two trimesters
when the abortion procedure is medically safer than childbirth. 94
b. Rationalrelationship test
If the Court determines that the case involves a privacy right that
is less than "fundamental," it will analyze the issues based on the
mental right is narrowly drawn to express only the legitimate compelling state interest at
stake. Roe v. Wade, 410 U.S. 113, 154 (1973); see also Palko v. Connecticut, 302 U.S. 319, 325
(1937) (establishing that fundamental constitutional rights "implicit in the concept of ordered
liberty" require heightened protection).
84. See id. (explaining Court's application of rational basis test when confronted with
state deprivation of "garden variety," non-textual constitutional liberties). Under a rational
basis test the state must show that the statute has a fair and substantial relation to a legitimate
state objective. Zablocki v. Redhail, 434 U.S. 374, 400, 402 (1978) (Powell, J., concurring).
85. See Roe v. Wade, 410 U.S. 113, 154 (1973) (invalidating statute prohibiting abortion
because provision was insufficiently related to state's compelling interests); Palko v. Connecticut, 302 U.S. 319, 325 (1937) (establishing principle that constitutional rights which are "of
the essence of ordered liberty" deserve heightened protection). Application of the compelling state interest test is used in other constitutional areas as well. See Note, Roy v. Cohen:
Socal Security Numbers and the Free Exercise Clause, 36 AM. U.L. REv. 217, 225 (1986) (discussing
application of compelling state interest test in free exercise of religion cases).
86. See L. TRIBE, AMERICAN CONSTrrTIONAL LAw 1000 (1978) (stating that applying
strict scrutiny standard in equal protection cases is great burden for state to overcome).
87. See Lupu, supra note 39, at 1029-30 (stating that compelling state interest test's rigidity creates predetermined outcomes).
88. 410 U.S. 113 (1973).
89. Roe v. Wade, 410 U.S. 113, 153 (1973).
90. Id. at 154 (stating that right of privacy includes abortion, but because right is not
unqualified, some state regulation is appropriate).
91. See id. at 163 (explaining that state interest in preserving human life is sufficiently
high during third trimester of pregnancy because fetus has capability of meaningful life).
92. Id. at 163-64.
93. Id. at 163.
94. Id.
500
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
rational basis test.9 5 This test examines whether the statute has a
fair and substantial relation to a legitimate governmental objective. 96 Although the rational relationship test is considered a lower
standard than the compelling state interest test, it is not necessarily
outcome-determinative in favor of the state;9 7 the right involved still
receives moderate constitutional protection. 98
For example, the Court applied the rational relationship test in
Moore v. City of East Cleveland.99 The Court in Moore struck down a
city statute that regulated family living arrangements. 10 0 The city
contended that restricting the occupancy of dwelling units to single
families would reduce traffic congestion and overcrowding. 1 0° The
Court, however, determined that even when a governmental action
intrudes on a constitutionally protected liberty interest that is less
than fundamental, the government's power is limited to only those
actions for which it can articulate a rational governmental
02
interest.
Since Griswold, the Supreme Court generally has reviewed privacy
interests under the compelling state interest standard.10 3 As a result
of applying this standard, the Court has recognized and protected a
wide scope of privacy interests.1 0 4 The Court in Bowers v. Hard95. See Zablocki v. Redhail, 434 U.S. 374, 400, 402 (1978) (Powell,J., concurring) (applying rational relationship test to right to marry); Moore v. City of East Cleveland, 431 U.S. 494,
499 (1977) (applying rational relationship test to invalidate local ordinance restricting living
arrangements).
96. See Moore v. City of East Cleveland, 431 U.S. 494, 500 (1977) (employing rational
basis test to overturn state restriction on land use because provision was not rationally related
to legitimate state interest).
97. Id.
98. Id. But see Note, City of Chicago v. Wilson and ConstitutionalProtectionfor PersonalAppearance: Cross Dressingas an Element of Sexual Identity, 30 HASINGs LJ. 1151, 1160-62 (1979) (criticizing application of rational relationship test to non-fundamental right involving personal
appearance because state victory is assured). The rationality test may be too amorphous to be
a useful tool in constitutional review. See Miller v. School Dist. No. 167, 495 F.2d 658, 668
(7th Cir. 1974) (criticizing use of rational relationship test because of its indefinite nature).
99. 431 U.S. 494 (1977).
100. Moore, 431 U.S. at 498-500 (citing EAST CLEVELAND, OHIO CODE §§ 1341.08, 1351.02
(1966)).
101. Id. at 499-500.
102. Id. at 499. The Court concluded that the ordinance in question had, at best, a "tenuous relation" to the interest the city cited. Id. at 500. But see Belle Terre v. Boraas, 416 U.S. 1,
7-9 (1974) (upholding ordinance imposing limits on types of groups that could occupy single
dwelling units).
103. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (subjecting state interference
with decision to marry to rigorous scrutiny); Carey v. Population Servs. Int'l, 431 U.S. 678,
685-87 (1977) (requiring compelling state interest to justify prohibition on sale of contraceptives to minors); Roe v. Wade, 410 U.S. 113, 154 (1973) (applying compelling state interest
test to prohibition on abortion). But see Kelley v. Johnson, 425 U.S. 238, 244, 248-49 (1976)
(applying rational relationship test to uphold police regulating enforcing length and style of
police officers' hair).
104. See supra notes 35-65 and accompanying text (outlining growth of right of privacy
over past two decades).
1988]
Is THERE A RIGHT TO PRIVACY?
wick, 10 5 however, broke with this tradition and applied a much lower
standard of review than the compelling state interest test.1 0 6 Accordingly, the Court has created uncertainty in the right to privacy
area.
II. BOWERS
A.
V. HARDWICK
FactualBackground
Michael Hardwick is a sexually active homosexual male.10 7 On
the evening of August 3, 1982, he was arrested in his bedroom and
charged with committing sodomy with another male adult in violation of a Georgia statute that criminalizes sodomy.' 0 8 The District
Attorney's office decided not to present the case to the grand jury
unless further evidence developed. 10 9
B.
Lower Court Background
Hardwick, fearing future arrest, prosecution, and imprisonment
because of his private homosexual conduct, filed suit in the United
States District Court for the Northern District of Georgia." 0 He
sought a declaratory judgment that the Georgia statute was uncon105. 106 S. Ct. 2841 (1986).
106. See Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986) (explaining that anti-sodomy
statute is valid because it represents belief by majority of electorate that homosexuality is
immoral and unacceptable).
107. See Hardwick v. Bowers, 760 F.2d 1202, 1204 (1 1th Cir. 1985) (describing Hardwick's sexual lifestyle), rev'd, 106 S. Ct. 2841 (1986). Hardwick neither denied that he was a
homosexual nor suggested that he would discontinue his sexual lifestyle. Id. He pursued the
case because his chosen lifestyle placed him in danger of being arrested again. Id. at 1204-06.
108. Bowers v. Hardwick, 106 S. Ct. 2841, 2842 (1986); see supra note 6 (providing text of
Georgia statute).
Until 1968, Georgia defined sodomy as "the carnal knowledge and connection against the
order of nature, by man with man, or in the same unnatural manner with woman." GA. CODE
ANN. § 26-5901 (1933). Under current Georgia law, "[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." GA. CODE ANN. § 16-6-2(a) (1984 & Supp. 1987); see also
supra note 6 (quoting Georgia statute in its entirety). In Riley v. Garrett, 219 Ga. 345, 133
S.E.2d 367 (1963), the Georgia Supreme Court held that § 26-5901 did not prohibit heterosexual cunnilingus. Id. at 349, 133 S.E.2d at 370. Georgia may have passed the act-specific
statute currently in force in response to permissive court decisions such as Riley. See Note, The
Cirmes Against Nature, 16J. PUB. L. 159, 167 n.47 (1967) (suggesting that Riley was impetus for
movement to revise statute).
109. Hardwick v. Bowers, 760 F.2d 1202, 1204 (11th Cir. 1985), rev'd, 106 S. Ct. 2841
(1986). The trial record is incomplete because the district court did not publish an opinion,
but apparently a zealous police officer pursued Hardwick for failing to pay a previous littering
citation. See Wash. Post, August 21, 1986, at Cl, col. 3 (reviewing factual history leading up to
Hardwick's arrest). Hardwick did not appear at his hearing so the officer was granted a bench
warrant to arrest Hardwick. Id. Hardwick, in fact, had paid the ticket prior to his arrest. Id.
The other consenting male adult, who was not prosecuted in this case, was identified only as a
"school teacher from North Carolina." Id.
110. Id.
502
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
stitutional. 11 Hardwick asserted that the statute was unconstitutional because it deprived him of the right to privacy with respect to
his consensual sexual conduct. 12 He argued that the statute should
receive the highest constitutional scrutiny and be upheld only if the
State of Georgia offered a compelling interest. 113
The district court dismissed the action for failure to state a
claim.' 14 The court appears to have relied on the Supreme Court's
summary affirmance in Doe v. Commonwealth's Attorney, 1 15 which up-
held a Virginia criminal statute prohibiting homosexual conduct. 16
Hardwick appealed and the United States Court of Appeals for the
Eleventh Circuit reversed the district court's opinion. 117 The court
of appeals held that the regulation of citizens' conduct in their own
bedrooms implicates fundamental constitutional rights. 118 The
court noted that Georgia had attempted to regulate, via criminal
statute, two merged privacy interests: the sanctity of the home and
individual consensual sexual intimacies. 1 19 The court indicated that
when multiple privacy interests are implicated, the corresponding
constitutional protections of the individual privacy rights are multiplied accordingly.' 20
The court of appeals also rejected the district court's reliance on
Doe v. Commonwealth's Attorney. 12 1 Circuit Judge Frank M. Johnson,
writing for the majority, stated that the United States Supreme
122
Court's summary affirmance in Doe was not binding precedent.
111. Id. John and Mary Doe, a married couple, joined in bringing the suit and alleged that
they wished to engage in the proscribed conduct but that the existence of the statute and
Hardwick's recent arrest had "chilled and deterred" them from doing so. Id. The district
court dismissed their claims for lack of standing, and the court of appeals affirmed. Id. at
1206-07.
112. Petitioner's Brief at 14, Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985), rev'd,
106 S. Ct. 2841 (1986).
113. Bowers, 760 F.2d at 1211-13.
114. Id. at 1204.
115. 425 U.S. 901 (1976).
116. Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976); see Hardwick, 760 F.2d at
1204 (noting district court's citation of Doe). The Supreme Court has stated that a summary
affirmance carries less precedential value than a decision on the merits. Edelman v. Jordan,
415 U.S. 651, 671 (1974). Many legal scholars have raised this point when discussing the
effect of Doe v. Commonwealth's Attorney on the homosexual's right to privacy. See, e.g., Gerety,
Redefining Privacy, 12 -ARV. C.R.-C.L. L. REv. 233, 279-80 (1977) (arguing that Doe has very
little precedential value because it was summary decision). A major problem with interpreting
the impact of summary affirmances is knowing whether the Supreme Court affirmed the lower
court's result, its rationale, or both. Id.
117. Hardwick v. Bowers, 760 F.2d 1202, 1211-12 (11 th Cir. 1985), rev'd, 106 S. Ct. 2841
(1986).
118. Id. at 1211.
119. Id. at 1212.
120. Id. at 1206.
121. Id.at 1208.
122. Id. at 1207-08; see also supra note 116 (discussing problems with interpreting precedential value of Court's summary opinion in Doe v. Commonwealth's Attorney).
Is
1988]
THERE
A
RIGHT TO PRIVACY?
503
The court reasoned that because Doe was a summary decision, it was
not conclusive in settling the constitutionality of criminal laws proscribing sodomy.12 3 The court of appeals concluded, therefore, that
no Supreme Court precedent denied constitutional protection to
24
consensual sexual behavior.'
C.
United States Supreme Court Opinion
The Supreme Court reversed the Eleventh Circuit's holding and
upheld the Georgia statute.' 2 5 A sharply divided Court dismissed
Hardwick's claim in a three-part analysis.' 26 First, the majority
ruled that prior privacy cases could not be construed to confer a
right to homosexual conduct.' 2 7 Second, the Court determined that
private homosexual conduct is neither rooted in American tradition
nor inherent in our nation's concept of ordered liberty.' 28 Finally,
the Court concluded that regulating conduct that the majority of the
electorate considers immoral behavior, such as homosexuality, is a
sufficient state interest, even if the state must enter an individual's
29
home to regulate this conduct.'
1.
Right of privacy precedent and Bowers v. Hardwick
Writing for the majority, Justice White held that the Court's previous right to privacy cases could not be construed to encompass a
fundamental right to homosexual conduct.13 0 He explained that the
fundamental rights espoused in the Griswold-Roe line of cases apply
to only family, marriage, and procreation.' 3 ' The Court asserted
that these cases do not grant constitutional protection to engage in
123. Hardwick v. Bowers, 760 F.2d 1202, 1207-08 (11 th Cir. 1985), rev'd, 106 S. Ct. 2841
(1986). The Court of Appeals for the Eleventh Circuit contended that the Supreme Court in
Doe v. Commonwealth's Attorney affirmed only Does' lack of standing to sue. Id. 1207-08.
124. Bowers, 760 F.2d at 1207-09.
125. Bowers v. Hardwick, 106 S. Ct. 2841, 2843 (1986).
126. Id. at 2842-46. The Court was split 5-4. Justice White, writing for the majority, was
joined by Burger, CJ., Powell, Rehnquist, and O'ConnorJJ. ChiefJustice Burger andJustice
Powell also filed concurring opinions. Id. at 2847. Justice Blackmun, joined by Brennan, Marshall and Stevens,JJ. filed a dissenting opinion. Id. at 2848. Justice Stevens filed a dissenting
opinion in which Justices Brennan and Marshall joined. Id. at 2856.
127. Id. at 2843.
128. Id. at 2845-46.
129. Id. at 2846.
130. Id. at 2843.
131. Id. at 2843-44; cf. Carey v. Population Servs. Int'l., 431 U.S. 678, 693-96, 700-02
(1977) (holding violative of 1st and 14th amendments law forbidding advertisement and distribution of contraceptives to minors); Roe v. Wade, 410 U.S. 113, 153-54 (1973) (holding
that right of personal privacy protects decision to have abortion); Eisenstadt v. Baird, 405 U.S.
438, 446-53 (1972) (invalidating law that forbids distribution of contraceptives to unmarried
persons); Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965) (holding that statute forbidding use of contraceptives violated right to marital privacy).
504
THE
AMERICAN UNIVERSrrY LAW
REVIEW [Vol. 37:487
all consensual sexual conduct.' 32
2.
Homosexuality is not a fundamental right
The Court in Bowers explicitly refused to recognize homosexual
conduct as a fundamental right.' 3 3 Justice White explained that fundamental rights deserving constitutional protection must be "implicit in the concept of ordered liberty" or "deeply rooted in our
Nation's history and tradition."' 3 4 Emphasizing that sodomy has
been a crime throughout our nation's history and that twenty-four
state legislatures currently criminalize sodomy, Justice White dismissed the suggestion that homosexual conduct was a fundamental
right. 3
3.
Regulating immoral conduct
Finally, the Court determined that the Georgia legislature's conclusion that homosexual sodomy is immoral is a sufficient basis for
upholding a law that proscribes homosexual conduct.' 3 6 Justice
13 7
White explained that law is always based on notions of morality,
and that if all laws representing a moral choice are invalidated, the
courts would be flooded with cases.' 3 8 The Court concluded that
the state's interest in regulating such immorality is sufficient to al39
low intrusion into a person's home.'
132. Bowers v. Hardwick, 106 S. Ct. 2841, 2844 (1986). But see id. at 2852 (Blackmun, J.,
dissenting) (arguing that Court's privacy cases protect decisions that are central to individual's life).
133. Id. at 2844.
134. Id. at 2844-46.
135. Id. at 2844-46; see also id. at 2847 (Burger, CJ., concurring) (emphasizing that immoral nature of homosexuality justifies state regulation of this conduct). But see id. at 2852
(Blackmun, J., dissenting) (noting that "there can be no assumption that today's majority is
'right'.... A way of life that is odd or erratic but interferes with no rights or interests of
others is not to be condemned because it is different") (quoting Wisconsin v. Yoder, 406 U.S.
205, 223-24 (1972)); K. DOVER, GREEK POPULAR MORALITY IN THE TIME OF PLATO AND ARisTOTLE 213-16 (1974) (explaining that ancient Greeks regarded homosexual desire as natural);
H. LICHT, SEXUAL LIFE IN ANCIENT GREECE 411-56 (1974) (providing examples of male homosexuality in Greek language, art, and literature).
136. Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986).
137. Id.
138. Id.
139. Id. The Court rejected Hardwick's reliance on Stanley v. Georgia, which held unconstitutional a state statute criminalizing the possession of obscene materials in the home. 394
U.S. 557 (1969). Justice White distinguished Stanley on the basis that the decision was
grounded in the first amendment, whereas the right claimed in Bowers had no similar support
in the text of the Constitution. Id. at 2846.
In his dissent, Justice Blackmun expressed concern about the Court's apparent intolerance
toward alternative lifestyles. Bowers, 106 S. Ct. at 2854-56 (Blackmun,J., dissenting). He suggested that the majority's mere knowledge that homosexuals do not share its values does not
justify invading the "homes, hearts, and minds of [these] citizens who choose to live their lives
differently." Id. at 2856.
1988]
Is
III.
THERE
A
CRITIQUE AND ANALYSIS OF BOWERS
A.
505
RIGHT TO PRIVACY?
v.
HARDWICK
Critique of the Supreme Court Opinion
The Supreme Court erroneously concluded that statutory prohibition of homosexual conduct is constitutional. 14 0 The Court's
analysis has three flaws. First, the majority opinion conflicts with
prior Supreme Court decisions in the right to privacy area. Until
Bowers, the Court had consistently broadened, rather than narrowed,
its interpretation of what acts are so private that they merit constitutional protection. 14 1 Second, the Court wrongly decided that fourteenth amendment due process does not protect homosexual
conduct. 142 Third, the majority opinion incorrectly concluded that
the legislative goal of proscribing alleged immoral behavior justifies
intruding into the sanctity of intimate relations conducted within the
3
home.14
1.
The Supreme Court's opinion conflicts with prior case law
In Bowers the Court limited its holdings in Griswold, Eisenstadt, and
Roe by finding that those decisions do not support a right to homosexual conduct.' 4 4 Contrary to the widely recognized interpretations of these opinions, the majority applied an anemic reading of
its precedent and concluded that this line of cases was limited to
recognizing an individual privacy interest related only to family,
marriage, or procreation.' 4 5 These privacy decisions, however, extended privacy rights beyond simply recognizing marital and famil140. See Bowers v. Hardwick, 106 S. Ct. 2841, 2844 (1986) (holding valid statutory proscription of sodomy). But see id. at 2852-53 (Blackmun, J., dissenting) (arguing that unusual
lifestyle should not be condemned because it is different).
141. See supra notes 35-65; infra notes 144-52; compare Bowers v. Hardwick, 106 S. Ct.
2841, 2843 (1986) (holding that right to privacy does not encompass homosexual conduct)
with Roe v. Wade, 410 U.S. 113, 153 (1973) (finding that right of privacy stemming from 14th
amendment "liberty" prevents undue state interference in abortion decision) and Eisenstadt
v. Baird, 405 U.S. 438, 453-55 (1972) (holding ban on distribution of contraceptives to single
people violation of equal protection) and Griswold v. Connecticut, 381 U.S. 479, 485 (1965)
(holding law forbidding use of contraceptives by married couples an unconstitutional invasion
of privacy).
142. See Bowers, 106 S. Ct. at 2857-58 (Stevens, J., dissenting) (arguing that individual's
14th amendment right to make decisions concerning procreation encompasses liberty to engage in homosexual conduct); see also infra notes 153-72 and accompanying text (arguing that
14th amendment protects homosexual conduct).
143. See Bowers, 106 S. Ct. at 2857 (Stevens, J., dissenting) (contending that purported
moral justification did not support sodomy law); see also Loving v. Virginia, 388 U.S. 1, 9-12
(rejecting intent of framers and traditional ban on interracial marriage as grounds for intrusion into marital decisions); Brown v. Board of Educ., 347 U.S. 483 (invalidating segregation
of schools despite popularly held moral justification for racial segregation).
144. Id. at 2844.
145. Id. at 2843-44.
506
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
ial privacy. 14 6 Neither the right of access to contraceptives affirmed
in Eisenstadtnor the right to abortion services upheld in Roe was limited to marital privacy.' 47 Indeed, the Court in Eisenstadt expressly
determined that a distinction between married and single persons
was unconstitutional because of the fundamental privacy interest for
all individuals to be free from "unwarranted governmental
1 48
intrusion."
The Griswold-Roe line of cases is significant not only for its protection of marriage and procreation, but also for its recognition of an
individual's fundamental right to make a decision about procreation, marriage, and family relations.' 4 9 Homosexual acts are consensual non-procreative sexual conduct not unlike a heterosexual
couple deciding to use contraceptives during sexual relations.1 5 0
Homosexual conduct, therefore, falls within the scope of privacy
rights the Court outlined in its Griswold-Roe line of cases.' 5 ' The
Court in Bowers, however, chose not to extend this fundamental
right of non-procreative sex to homosexual activity. The Court's
constriction of its precedent conveniently predetermined the outcome against Hardwick. A fair and reasoned application of prior law
would have led to a favorable result for Hardwick consistent with
52
prior case law.'
2.
Fourteenth amendment protects homosexual conduct
The majority in Bowers held that the fourteenth amendment's concept of fundamental rights does not protect private homosexual
conduct.' 53 The majority's analysis is a disguised version of the
"textualist" or "originalist" approach to interpreting constitutional
146. See id at 2857-58 (Stevens, J., dissenting) (explaining that prior Supreme Court privacy decisions extend beyond protecting the marriage and family to include "liberty").
147. See Roe v. Wade, 410 U.S. 113, 153 (1973) (finding that right to privacy includes
woman's decision to terminate pregnancy, regardless of whether woman is married or single);
Eisenstadt v. Baird, 405 U.S. 438, 442, 452-54 (1972) (holding that equal protection clause
was violated under statute denying single adults contraceptive services); see also Carey v. Population Servs. Int'l, 431 U.S. 678, 680 (1977) (holding that denial of contraceptive services to
anyone over 16 was unconstitutional).
148. Eisenstadt v. Baird, 405 U.S. 438, 453-55 (1972).
149. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (1973) (holding that right to privacy is
broad enough to protect woman's decision to terminate pregnancy); Eisenstadt v. Baird, 405
U.S. 438, 453-54 (1972) (holding that right to decide whether to have children is protected by
right to privacy); Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535, 541-42 (1942) (ruling
that right of privacy protects personal decisions about procreation).
150. See Richards, supra note 4, at 314 (arguing that homosexual conduct is form of nonprocreative sexual activity that is analogous to heterosexual non-procreative sexual conduct).
151. See id. (suggesting that difference between homosexuality and other forms of nonprocreative sex is popularity and not constitutionality).
152. See supra notes 146-51 and accompanying text (arguing that Supreme Court precedent encompasses right to homosexual privacy).
153. Bowers v. Hardwick, 106 S. Ct. 2841, 2843-44 (1986).
19881
Is THERE
A
RIGHT TO PRIVACY?
507
law. 15 4 This approach denies homosexual privacy constitutional
protection because this right is not explicitly enumerated in the
Constitution. 155
To support its theory that homosexual conduct is not protected
by the due process clause, the Court pointed to our nation's long
history of legislation criminalizing homosexual activity.1 5 6 The majority emphasized that for years many states have had statutes that
criminalize sodomy.1 5 7 Deferring to the legislatures and the principles of majoritarian democracy, the Court stated that it is "facetious" even to suggest that homosexual conduct is a fundamental
right worthy of constitutional protection.' 58
The majority opinion, however, sacrificed constitutional protection of individual constitutional rights in favor of upholding archaic
laws once supported by a legislative majority. 15 9 The Court apparently forgot that our nation's history is laden with laws that are now
relegated to the status of absurd.1 60 For example, under the Consti154. See Bork, supra note 26, at 5 (explaining that because Constitution delineates certain
fundamental rights, courts need not make value choices in order to protect them). Under the
textualist approach, judges are supposed to decide issues by determining the framers' intent
and interpreting the Constitution in a literal fashion. Id. Proponents of originalism suggest
that going beyond the face of the Constitution requires judicial interpretation that is predicated on the judge's personal values. This causes confusion because the resulting law is not
based on the Constitution, but on a particular judicial point of view. See A. BICKEL, THE
SUPREME COURT AND THE IDEA OF PROGRESS 177 (1970) (suggesting that courts should not
"manufacture principle" because principles that are widely accepted today may be rejected
tomorrow). Advocates of originaism argue that the extension of privacy rights under the
14th amendment exemplifies the problems with judicial interpretation. Id at 47-50. But seeJ.
ELY, supra note 26, at 44-48 (suggesting that theories of constitutional interpretation such as
"natural law," "neutral principles," and "traditional consensus" merely serve as guise to enable judges to impose their values on law); Ely, supra note 72, at 929 (arguing that Court
should "seek out the sorts of evils the framers meant to combat and move against their twentieth century counterparts").
155. See Dronenburg v. Zech, 741 F.2d 1388, 1391-97 (D.C. Cir. 1984) (holding that private consensual homosexual conduct in military is not constitutionally protected because
Constitution provides no express right). Writing for the majority in Zech, Judge Bork argued
that previous privacy cases were limited to interests of family, procreation, contraception, and
child raising. Id. He concluded that courts should defer to the judgment of the legislature
and military that homosexuality is immoral and therefore should be subject to sanction. Id. at
1397-98.
156. Bowers, 106 S. Ct. at 2844-45 nn. 5-7 (citing and discussing proliferation of criminal
sodomy statutes since 18th century). The Court's reasoning in Bowers is similar to Judge
Bork's "textualist" analysis in Dronenburg. Compare id. (upholding sodomy statute because proscriptions against sodomy have "ancient roots") with Dronenberg,741 F.2d at 1391-97 (holding
that private consensual homosexual conduct of military personnel is not constitutionally protected because of enduring belief in immorality of homosexuality).
157. Bowers, 106 S. Ct. at 2845 (stating that 24 states and District of Columbia have criminal sodomy statutes).
158. Id at 2845-46.
159. Cf THE WRITINGS OFJAMES MADISON (G. Hunt ed. 1960) (warning that constitutional
protection of minorities cannot always be trusted to legislative majority).
160. See Plessy v. Ferguson, 163 U.S. 537, 544 (1896) (affirming separate but equal doctrine); Bradwell v. Illinois, 83 U.S. 130, 133 (1875) (Bradley, J., concurring) (arguing that
women's importance to society is limited to child rearing and serving men).
508
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
tution and several state statutes, blacks were once treated as second
class citizens 61 and women were considered too frail to practice
law. 162 With respect to marital and procreational privacy, several
states once criminalized the distribution of contraceptives 16 and
the provision of abortion services. 1e'4 After a well-reasoned constitutional interpretation, however, each of those laws was eventually
found to be in conflict not only with American social mores, but also
with the Constitution. 165 In the words of Justice Holmes, "it is revolting to have no better reason for a rule of law than that it was laid
down in the time of Henry IV."166
Turning the Court's argument on itself, however, one can argue
that over half of the states have decriminalized statutes proscribing
homosexual sodomy.167 Many professional, scientific, and religious
organizations have declared their opposition to states' regulation of
private consensual conduct through criminal statutes. 68 Although
161. See Plessy, 163 U.S. at 544 (affirming constitutionality of separate but equal doctrine
and essentially relegating blacks to second class status in American society). In Brown, the
Court invalidated the four following statutes which permitted the maintenance of separate
schools for blacks and whites: DEL. REV. CODE § 2631 (1935), KAN. GEN. STAT. § 72-1724
(1949), S.C. CODE § 5377 (1942), VA. CODE §§ 22-221 (1950). See also GREENVILLE, S.C.
CODE, 1953, § 31-8 (amended 1955) (requiring separation of races in restaurants), invalidated
by Peterson v. Greenville, 373 U.S. 244, 248 (1963).
162. Bradwell, 83 U.S. at 130-39 (denying women right to practice law). In his concurrence,Justice Bradley explained that "the destiny of women are to fulfill the noble and benign
office of wife and mother. This is the law of the creator." Id. at 141.
163. See Poe v. Ullman, 367 U.S. 497, 508-09 (1961) (upholding state law prohibiting sale
of, and medical advice concerning, contraceptive devices).
164. See Roe v. Wade, 410 U.S. 113, 139-40 (1973) (discussing state law restricting
abortions).
165. See Roe, 410 U.S. at 125 (holding that women have fundamental right to abortion);
Reed v. Reed, 404 U.S. 71, 75 (1971) (invalidating statute because it discriminates on basis of
sex in violation of equal protection clause when it gave preference to men over women when
both were equally qualified to be estate administrators); Griswold v. Connecticut, 381 U.S.
479, 481 (1965) (protecting right to use and procure contraceptives); Brown v. Board of
Educ., 347 U.S. 483, 493-95 (1954) (forbidding segregation in public schools and rejecting
separate but equal doctrine found in Pessy); cf L. TRIBE, supra note 86, at 943-44 (arguing that
right to private sexual intimacy should be broadened over time).
166. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1896-97). Justice Holmes
attacked archaic laws by stating: "Itis still more revolting, if the grounds upon which (the
law] was laid down have vanished long since, and the rule simply persists from blind imitation
of the past." Id.
167. See Note, supra note 4, at 526 (listing repealed state sodomy statutes). When the
American Law Institute adopted the MODEL PENAL CODE a subsection that would have made
consensual sodomy a misdemeanor (§ 207.5, subd. 4) was consciously omitted. The American Law Institute first proposed decriminalization of sodomy in 1955. Note, supra note 4, at
526. Two states repealed their sodomy laws in the 1960's, 20 more followed suit in the
1970's, and one more has done so in this decade. Rivera, Book Review, 32 U. PA. L. REV. 391,
410 (1984) (reviewingJ. D'EMILIO, SEXUAL POLITIcs, SEXUAL COMMUNITIES: THE MAKING OF A
HOMOSEXUAL MINORITY IN THE UNITED STATES (1983)). In three additional jurisdictions, state
courts have ruled their sodomy laws unconstitutional as applied to private consensual, noncommercial sexual acts. Id.
168. See Amicus Brief for the American Psychological Association at 9-10, Bowers v. Hardwick, 106 S. Ct. 2841 (1986) (No. 85-140) (stating that American Psychiatric Association re-
1988]
Is THERE A
RIGHT TO PRIVACY?
509
the Court's decision may have once represented the views of a legislative majority, it now may represent the views of only a minority of
citizens. 169
Moreover, the Supreme Court traditionally has provided constitutional protection for explicitly minority behavior. 170 In Wisconsin v.
Yoder for example, the Court held that the important state interest in
public education should give way to a competing claim by the Amish
because compulsory public education is at odds with the traditional
way of life of the Amish.17 1 The Court in Yoder concluded that a way
of life which is odd or erratic, but which does not interfere with the
rights of others, need not be condemned because the majority
believes it is different.' 72 The Court in Bowers, however, ignores its
precedent from Yoder and writes an opinion that upholds a statute
that essentially outlaws a minority form of behaviorhomosexuality.
3.
Proscribingalleged immoral conduct does notjustify intruding into the
sanctity of home
The Court in Bowers concluded that Georgia's criminal statute is
related to proscribing immoral behavior, and that this goal sufficiently justifies an intrusion into an individual's home.17 3 Observing
that our nation's laws are often based on notions of morality, 74 the
Court maintained that it is morally bound to uphold statutes proscribing homosexual sodomy. 175
The Court's failure to protect sexual relations between consenting adults within the home is inconsistent with its recognition of
a right to possess obscenity in the home.' 7 6 The Court seems to be
moved homosexuality from its list of psychological diseases in 1973); Amicus Brief for the
Presbyterian Church at 2, Bowers v. Hardwick, 106 S. Ct. 2841 (1986) (No. 85-140) (discussing Methodist Churches' recognition of alternate lifestyles including homosexuality).
169. See Rivera, supra note 167, at 410 (noting that more than 50% of Americans live in
states whose legislatures have decriminalized sodomy).
170. Wisconsin v. Yoder, 406 U.S. 205, 223-24 (1972) (recognizing unique, traditional
Amish way of life as sufficient substitute for compulsory public education beyond eighth
grade).
171. Id.
172. Id. The Court declared in conclusion: "There can be no assumption that today's
majority is 'right' and the Amish and others like them are 'wrong'." Id.
173. Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986). The majority considered homosexuality "immoral and unacceptable." Id. Chief Justice Burger stressed this point in his
concurring opinion: "To hold that the act of homosexual sodomy is somehow protected as a
fundamental right would be to cast aside millennia of moral teaching." Id. at 2847. But see
supra note 135 (discussing acceptance of homosexual conduct by ancient Greeks).
174. Bowers, 106 S. Ct. at 2844-46 (noting that until 1961, all states prohibited sodomy
and that half still do).
175. Id. at 2846.
176. See Stanley v. Georgia, 394 U.S. 557, 564-65 (1969) (protecting private possession of
obscene material under right to privacy).
510
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:487
more interested in protecting our erotic fantasies than it is in protecting our ability to share love with other human beings. 17 7 It is
anomalous to allow persons to possess pictures of people performing sexual acts but to deny them the ability to share consensual
physical intimacy within the privacy of their home. 178 Is the Court
applying a "look, but don't touch standard" to intimate relations?
The Supreme Court's decision disregards a well-established and
supported judicial history of protecting privacy rights within the
home. 179 These rights should apply to Hardwick, who was arrested
for conduct which took place within the privacy of his home.18 0 Any
state attempt to regulate conduct within the home implicates serious
constitutional protections and requires the state to demonstrate a
compelling interest to justify the intrusion. 8 1 Conversely, the
Court in Bowers did not require Georgia to show a compelling state
interest for prohibiting sodomy between two consenting male
adults.' 8 2 The Court justified the statute by analogy, citing narcotics and weapons laws as examples of permissible state regulations of
conduct within the home.1 8 3 The Court equated sodomy with these
felonies and stated that otherwise illegal conduct is not immune
84
from prosecution when it is done at home.'
This argument, however, is misplaced. The felonies the Court
177. See Brockett v. Spokane Arcades, 472 U.S. 491,498 (1985) (providing protection for
material appealing to "normal, healthy sexual desires"); Miller v. California, 413 U.S. 15, 27
(1973) (excluding from constitutional protection "only patently offensive 'hard core' " sexual
material). But see Paris Adult Theatres I v. Slaton, 413 U.S. 49, 57-58 (1973) (upholding
Georgia statute that proscribed commercial exhibition of obscene films to consenting adults).
178. The Court in Bowers attempted to distinguish its holding in Stanley v. Georgia by suggesting that Stanley was decided solely on first amendment grounds, unlike Bowers, which had
no express constitutional language from which a privacy right can be derived. Bowers v.
Hardwick, 106 S. Ct. 2841, 2843 (1986). The court in Stanley, however, explicitly rested its
holding on privacy considerations, stating that "[w]hatever may be the justification for other
statutes regulating obscenity, we do not think they reach into the privacy of one's own home."
Stanley v. Georgia, 394 U.S. 557, 565 (1969).
179. See Payton v. New York, 445 U.S. 573, 590 (1980) (holding warrantless search of
bedroom invalid); Stanley v. Georgia, 394 U.S. 557, 564-65 (1969) (allowing private possession of obscene material); Silverman v. United States, 365 U.S. 505, 511 (1961) (stating that
core of fourth amendment is right to retreat into home and be free from unreasonable governmental intrusion); see also supra note 72 and accompanying text (discussing protection of
home from unreasonable government intrusion).
180. Hardwick v. Bowers, 760 F.2d 1202, 1204 (11th Cir. 1985), rev'd, 106 S. Ct. 2841
(1986).
181. See Payton, 445 U.S. at 589-90 (holding that only exigent circumstances justify warrantless police invasion of sanctity of home); see also supra note 83-94 and accompanying text
(explaining compelling state interest standard for fundamental rights).
182. Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986) (concluding that regulation of
immoral conduct justifies anti-sodomy law). In addition to a sexual privacy claim, Bowers involved the right to privacy in one's home. This right requires a compelling interest to justify
state intrusion. See United States v. Orito, 413 U.S. 139, 142 (1973) (stating that safeguards
protecting home are distinct from right of privacy in sexual and family matters).
183. Bowers, 106 S. Ct. at 2846.
184. Id.
1988]
Is THERE A RIGHT TO PRIVACY?
compared homosexuality to have a common element: a victim.
Drugs and weapons are inherently dangerous and often lethal, and
thus provide a compelling state interest for regulating their posses-
sion and use.18 5 Conversely, two consenting adults engaging in sod8
omy within the privacy of their home is a victimless act.'
B.
6
Future Implications
As a result of the Supreme Court's decision in Bowers, states may
arrest individuals if the government can demonstrate merely that
the conduct involved is considered immoral. 8 7 Enforcement of
such private morality, however, encourages our society to maintain
public intolerance and animosity toward conduct the majority considers "different" or "unusual."' 8 8 Allowing such intolerance with
little state justification threatens every American's individual freedoms, liberties that our nation has traditionally valued. 8 9 Accord-
ingly, the Court's decision undoubtedly will have serious social and
political implications for those individuals pursuing a non-normative lifestyle. It seems that the Court is encouraging a society of
conformists. The majority in Bowers dismisses the homosexual lifestyle as immoral and abnormal, rather than a consensual intimate relationship between two adults.' 90 The decision in Bowers has the
185. See McLaughlin v. United States, 106 S.Ct. 1677, 1678 (1986) (holding that even
unloaded gun is lethal weapon because of its inherent danger); L. GREENSPOON AND J.
BAKALAR, COCAINE: A DRUG AND ITS SOCIAL EVOLUTION 129-53 (1985) (documenting physical
and psychological damages caused by drugs).
186. See Bowers v. Hardwick, 106 S.Ct. 2841, 2853 (1986) (discussing victimless nature of
intimate homosexual conduct). Professor Laurence Tribe provides further support for the
victimless nature of homosexual conduct by stating: "The argument that consenting homosexuals whose intimacies offend no one who does not seek offense should be protected from
governmental intrusion... should ultimately prevail [because] the proscribed conduct is central to the personal identities of those singled out by the state's law." L. TRIBE, AMERICAN
CONsTrrTrONAL LAW § 15-13, at 943 (1978).
187. See Bowers v. Hardwick, 106 S.Ct. 2841, 2846 (1986) (explaining that Georgia's antisodomy law is justified because majority of electorate considers conduct "unacceptable" and
"immoral").
188. See O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)(stating that "[m]ere public
intolerance or animosity cannot constitutionally justify the deprivation of a person's physical
liberty").
The dissent in Bowers addressed the issue of regulating conduct that is unacceptable to the
majority. Justice Blackmun suggested that an eighth amendment issue arises whenever an
individual is prosecuted based on his status. Bowers, 106 S.Ct. at 2850 n.2 (Blackmun, J.,
dissenting); see Robinson v. California, 370 U.S. 660, 664-67 (1962) (holding that eighth
amendment barred conviction of defendant due to his "status" as narcotics addict because
that condition was "illness which may be contracted innocently or involuntarily"). But see
Powell v. Texas, 392 U.S. 514, 530 (1968)(holding that chronic alcoholic's public drunkenness does not implicate "status").
189. Cf West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 641-42 (1943)(advocating
societal tolerance of unusual lifestyles).
190. See Bowers, 106 S.Ct. at 2844 (approving legislature's determination that homosexual
conduct is immoral). The Supreme Court is unlikely to modify its position on homosexual
512
THE AMERICAN UNIVERSITY LAW REVIEW [Vol.
37:487
potential of perpetuating further discrimination against, and misunderstanding of, alternative forms of intimate expression or
conduct.' 9 1
Furthermore, allowing such intolerance with little state justification threatens every American's individual freedoms, liberties that
our nation traditionally has valued. The Bowers decision presents
serious implications for heterosexual privacy rights. Many intimate
consensual relationships may face closer state scrutiny, especially if
the individuals choose to engage in a non-normative form of sexual
intimacy. Whether the Supreme Court intends to police conduct
within the bedrooms of Americans' homes remain to be seen. One
thing is certain, the decision in Bowers moves one step closer to making this a reality.
CONCLUSION
Bowers v. Hardwick does more than depart from judicial precedent:
19 2
it breaks from the principles upon which our nation was founded.
Our right to be free from governmental intrusion into the most intimate details of our lives has fallen victim to a Supreme Court which
believes that states have the right to regulate conduct within the pri-
vacy of one's bedroom if the majority perceives that conduct as
immoral.
The "right to privacy" is the right of an individual to be free from
governmental intrusion into a person's intimate life. Nothing can
be more private to an individual than consensual sexual intimacy
within the home. The enforcement of criminal sodomy statutes encroaches on the rights of all persons, whether homosexual or heterosexual, married or single, to exercise their liberty to engage in
consensual, intimate sexual conduct free from governmental intrusion. The failure of the Supreme Court to recognize the importance
of this privacy interest is the failure of the Court to acknowledge our
nation's proud tradition of respecting the individual's right to be
free.
conduct in the near future. The Court most recently signalled its unwillingness to reconsider
its position when it denied certiorariin a case upholding a Texas anti-sodomy statute. Baker v.
Wade, 774 F.2d 1285 (5th Cir. 1985), cert. denied,106 S. Ct. 1285 (1986).
191. See Gerety, Redefining Privacy, 12 HAtv. C.R.-C.L. L. REv. 233, 280 (1977)(stating that
governmental restrictions on homosexuals are unconstitutional attacks on "politically weak
and isolated" group).
192. See supra note 2 (discussing revolutionary America's search for individual liberty).