Homosexual Sodomy, Bowers v. Hardwick

[A18]

Bowers v. Hardwick, 478 U.S. 186 (1986)

After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.

OPINION: WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined.

...[R]espondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. ...

Proscriptions against that conduct have ancient roots. ... Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. ...

The Court is 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 design of the Constitution. ...

[R]espondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

Accordingly, the judgment of the Court of Appeals is
      Reversed.

[Emsworth]

The conclusion reached in this case was correct, although the reasoning was imperfect.

The doctrine of "substantive due process" (on which Hardwick based his argument) is entirely unsound, as has been demonstrated on this forum previously. Nor is a "right to privacy" protected by any part of the Constitution. No doubt, the Georgia law at issue was tyrannical and oppressive, but it did not violate any constitutionally guaranteed right.

The reasoning the court used was somewhat different. It did not argue that there is no constitutional right to privacy; rather, it held that the right did not happen to extend to sodomy.

[Peter]

No doubt, the Georgia law at issue was tyrannical and oppressive, but it did not violate any constitutionally guaranteed right.

If the Constitution does not prohibit tyranny and oppression, I have to ask what the point in keeping it around exactly is.

Of course, the Court was totally wrong, and Justice Powell would acknowledge that he got it wrong after he retired.

The Court announces that there is no fundamental right to engage in homosexual sodomy, this could not be further from the truth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." (Justice Blackmun, quoting Brandeis). The state has no compelling interest (or any interest whatsoever for that matter) in criminalising sodomy in this setting.

If you accept Griswold as correct (I have neither time nor inclination to join the dots in that one for the intolerant prudes), then Lawrence (the converse of Bowers) follows as a corollary, either as its own right as in Lawrence, or via some equal protection argument as used in Eisenstadt. The Court somehow suggests that it doesn't and has undoubtedly substituted its own moral values (see CJ Burger's concurrence) to create a homosexual exception to Griswold's sexual intimacy/privacy doctrine.

Undoubtedly, the punishment appended to the Georgia statute was also grossly unconstitutional under the 8th, but even if it had gotten that far (charges were never pressed), I doubt they would have done time, so thats more of a footnote.

[A18]

"Tyranny" and "oppression" are relative concepts. I think the income tax is oppressive.

I also think my "right to be let alone" should extend it to not having to pay for sh**tty programs that are going bankrupt.

But these are philosophical disputes, not legal disputes, and they have no place in sound adjudication.

So long as we're discussing what constitutes "oppression," I'll add nine lawyers making sh**t up to that. Lawrence was clearly an activist decision, by absolutely any rational standard whatsoever. Sodomy is so divorced from the traditions of the American people, it was criminal for 200 years.

Sodomy was considered a heinous crime under common law. Blackstone described the offense itself as one of "deeper malignity" than rape, a heinous act "the very mention of which is a
disgrace to human nature," and "a crime not fit to be named."

The English common law provided the basis for early state sodomy laws.

Thomas Jefferson, author of the Declaration of Independence, saw no inconsistency between the principles of individual liberty and the state prohibition of sodomy. At the time of the Revolution, most states punished sodomy by death.

Jefferson recommended a different penalty: "Punishments I know are necessary, & I would provide them, strict & inflexible, but proportioned to the crime. Death might be inflicted for murder & perhaps for treason if you would take out of the description of treason all crimes which are not such in their nature. Rape, buggery &c--punish by castration."

But he still believed sodomy was a criminal offense.

As commander of the Continental Army in 1778, George Washington dishonorably discharged Lieutenant Enslin for attempting to commit sodomy with another soldier, John Monhort.

James Wilson, one of the early justices of the Supreme Court, wrote a commentary on American law. He refused to even describe the details of sodomy, writing "The crime not to be named, I pass in a total silence."

These were not isolated incidents. They represented the atmosphere and beliefs of the era.

There can be no label for Lawrence but that of judicial legislation. And that itself is an act of tyranny.

[Emsworth]

If the Constitution does not prohibit tyranny and oppression, I have to ask what the point in keeping it around exactly is.

The Constitution's primary purpose is to control the federal government, and in this respect it provides ample safeguards against tyranny. Its purpose is not to prescribe the manner in which each state is to govern itself; the restraints it imposes on state power are merely incidental.

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What is a "compelling interest"? I really do not know on what basis a court (as opposed to a legislature) could conclude that an interest is "compelling" or not. As far as I can tell, it is not really a standard of judicial review, but only a standard of policy review.

[A18]

I just want to add that the ultimate protection of liberty is federalism, and perhaps no written constitution better protects it than our own: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Federalism allows good people to agree to disagree. If you detest your state's laws, you need only move to a new one. In this way, you are always as free as the freest state.