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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Aug. 1, 1986)
Religious dogma prevails in sodomy case by A T . Tomey O n June 30,1986, the United States Suprem e Court in a 5 to 4 decision, ruled that the United States Constitution does not confer a fundamental right upon consenting adult homosexuals to engage in sodom y in the privacy o f a bedroom. Justice Byron White, a Nixon appointee, wrote the majority opinion in Bowers v. Hardwick in which Justices Rehnquist Burger, Powell, and O ’Connor joined. Justice Harry Blackmun, also a Nixon appointee, wrote a vigorous dis sen t joined by Justices Marshall, Brennan, and Stevens. Justices Burger and Powell each authored concurring opinions; Justice Ste vens wrote a separate dissenting opinion. The facts o f the case are as follows. On August 3,1982, Atlanta police knocked on the door o f Michael Hardwick. Hardwick's roommate allowed the police, who were there to serve a warrant on Hardwick for public drunkenness, free entry into the home. The police entered Hardwick’s bedroom and found him engaged in oral sex with another man. He was arrested and charged with viola tion o f Georgia’s sodom y statute. Under Georgia law, “ a person,” homosexual or heterosexual, married or single, "commits the offense o f sodom y when he performs or submits to any sexual act involving the sex organs o f one person and the mouth or anus o f another.” A person convicted o f this crime is subject to a maximum o f twenty years in prison. The District Attorney decided not to prosecute Hardwick unless further evidence developed, however, Hardwick remained un der that threat Hardwick filed a civil action in federal court in Georgia challenging the constitutionality of the Georgia sodom y statute. His complaint was dismissed on a pretrial motion in the trial court, but he achieved partial victory in the Eleventh Circuit Court o f Appeals. Relying on previous Supreme Court cases, the court of appeals found that the constitutional right of privacy “ prevents the States from unduly in terfering in certain individua I decisions criti cal to personal autonomy because those de cisions are essentially private and beyond the legitimate reach o f a civilized society.” Hard wick’s desire to engage privately in sexual activity with another consenting adult "lies at the heart o f an intimate association beyond the proper reach o f state regulation.” The court o f appeals did not invalidate the Georgia sodom y statute. However, because the court had found that the sodomy statute implicated Hardwick’s fundamental constitutional rights, the court ordered that the case be sent back to the trial court where Georgia would have to demonstrate that it had “a compelling interest in restricting this right” and also show “that the sodom y statute is a properly restrained m ethod o f safeguarding its interests.” If fundamental constitutional rights are not im plicated, states need only show that their laws are rationally related to the state’s regulatory interest, a far easier test to satisfy than the “ com pelling interest” test To avoid being saddled with this more difficult test Georgia sought review in the Supreme Court before the case had a chance to g o back to the trial cou rt T h e Supreme Court framed the issue as whether the Constitution conferred a funda mental right upon homosexuals to engage in sodom y and concluded that it did n ot The Court went on to conclude that the presumed belief o f a majority o f the electorate of Georgia that homosexual sodom y is immoral and un acceptable provided an adequate rationale to m eet the less stringent rational relationship test At the outset o f its opinion the Court made clear that its decision dealt exclusively with Just Out. August, 1986 "Consensual homosexual sodom y” was targeted by the court Fourth of July, 1986 Michael Hardwick was in love and in his own bedroom was making love with a man, his chosen lover. A cop cam e to serve a warrant for a traffic violation, C am e into the bedroom with the warrant W rote him another ticket for making love with his chosen lover, A man. 1982. Georgia. 1983 Michael sued Georgia and won. 1986 Reagan Court Supreme Court o f the Statue o f Liberty Centennial knee-jerk celebrants, overruled Michael and declared: "T. <e proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is insupportable,” quoth Justice Byron R. White Am erica serves as hypocrite-honcho for Its world dominions. America ignores the World Court and continues its war with Nicaragua. America supports apartheid by investing in South Africa and fails to condemn the Botha regime. Am erica will g o delirious tomorrow celebrating freedom. ‘ 1 am ashamed. ! am Hvid with anger. I will kill any cop entering my bedroom with a traffic warrant Kevin Shay Johnson Kevin Shay Johnson, a political singer- songwriter, w ill be appearing at the World M usic Festival, August 23 at the University o f Portland. See O ut About Town for particulars. ■ homosexual sodomy despite the inescapable fact that the Georgia statute under attack ap plied equally to all persons whatever their sexual preference and whatever their marital status. "Th e only claim properly before the C ou rt. . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual activity." The Court distinguished previous cases in volving child rearing and education, family relationships, procreation, marriage, contra ception, and abortion, in which limits were placed on a state’s ability to interfere. Justice White wrote that “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to en gage in acts o f sodom y that is asserted in this case." The Court was unwilling to ex tend the rationale of those cases to what it termed the "fundamental right to engage in homosexual sodomy.” Historical abhorrence o f homosexuality provided the basic reason for the Court’s refusal to recognize a new fundamental right The Court also expressed a reluctance to find new fundamental rights where firm textual support in the Constitution is lacking. Finally, the Court rejected the argument that the result should be different because the activity occurred in the bedroom o f a home. Retiring Chief Justice Burger in a three paragraph concurring opinion reiterated in a m ore sanctimonious tone that recognition of the act o f homosexual sodomy as a funda mental right would be “to cast aside millenia o f moral teaching." Justice Powell provided the crucial swing vote. In agreement with the majority, he could not accept that "conduct condemned for hundreds o f years has now becom e a funda mental right” However, he noted that the nonenforcement o f laws criminalizing private consensual sexual conduct suggested the “ moribund character" o f such laws. He also stated that any prison sentence for violation o f sodom y statutes would probably consti tute cruel and unusual punishment prohibited by the eighth amendment Justice Blackmun read portions of his dis sent from the bench, a practice rarely exer cised by justices in the minority and com monly believed to be reserved for those cases in which convictions are firmly held. He ac cused the majority of distorting the issue. In his view, the issue was not about "a funda mental right to engage in homosexual sodomy," but rather about "the right to be let alone.” '<* Justice Blackmun took particular issue with the majority’s "almost excessive focus on homosexual activity." He saw no basis for the Court to focus exclusively on the statute as applied to homosexual activity. “Unlike the Court, the Georgia Legislature has not pro ceed ed on the assumption that homosexuals are so different from other citizens that their lives m ay be controlled in a way that would not be tolerated if [applied exclusively to heterosexuals)." G eorgia’s Attorney General con ced ed at oral argument last spring that the statute would be unconstitutional as ap plied to married heterosexuals in general and married couples in particular. ^ Th e majority, according to Blackmun, re fused to consider the broad principles that had informed the Court’s previous treatment o f privacy in specific cases. The court’s prior privacy cases have two distinct but co m plementary rationales according to Black mun. First som e cases make reference to certain decisions that are proper for the indi vidual to make. Second, other cases make reference to the place in which such activity takes place. Hardwick’s challenge implicated both “the decisional and spatial aspects of the right to privacy.” As to the decisional aspect Blackmun wrote that the Court’s prior cases were meant to protect the individual's right to choose the form and nature o f intensely personal bonds. "W e protect those rights not because they contribute, in som e direct and material way, to the general public welfare, but because they form so central a part o f an individual’s life.” As to the spatial aspect Blackmun wrote that the fourth amendment attaches special significance to the home. Blackmun dis agreed with the majority's conclusion that the right Hardwick sought to have recognized had no textual support in the Constitution. Blackmun wrote that "the right o f an indi vidual to conduct intimate relationships in the intimacy o f his or her own home seem s to m e to be the heart o f the Constitution’s pro tection o f privacy.” Th e dissent also rejected the majority view that history and morality provided an ade quate basis to provide a rational basis for a legitimate regulatory interest The dissenting justices clearly rejected the notion that history and religious conviction o f a majority of the electorate can provide a sufficident reason to satisfy the rational relationship test In strongly w orded passages clearly directed to funda mentalist Christians, Blackmun wrote that the assertion that traditional Judeo-Christian values proscribe the conduct involved can not provide an adequate justification for a sodom y statute. "That certain, but by no m eans all, religious groups condemn the be havior at issue gives the State no license to im pose their judgments on the entire citizenry. T h e legitimacy o f secular legislation depends instead on whether the State can advance som e justification for its law beyond its con formity to religious doctrine___ Thus, far from buttressing (its) case, [Georgia's] invo cation o f Leviticus, Romans, S t Thom as Aquinas, and sodom y’s heretical status dur ing the Middle A ges undermines his sugges tion that [the sodom y statute] represents a legitimate use o f secular coercive power. A State can no m ore punish private behavior because o f religious intolerance than it can punish such behavior because o f racial animus.” Blackmun also concluded that the sodomy statute could not be justified as a morally neutral exercise o f Georgia’s power to "pro tect the public environment" Contrasting laws which ban public sexual activity, in which the public is protected from unwilling expo sure o f the sexual activities o f others, Black mun stated that Hardwick’s case involved no real interference with the rights o f others. The “m ere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest” let alone an in terest “that can justify invading the houses, hearts, and minds o f citizens who choose to live their lives differently." (Ed. note: A T. Tom ey is a pseudonym . The a u th or o f this piece, an attorney, requested a n onym ity.) ___________________________ 5