In 1890, the famous law article discussing a right to privacy was published, which I discussed some years back. Ultimately, the article was concerned specifically with limits on publishing. Thus, the impetus was generally concern with social media coverage of the day, if not the mythical wedding of a daughter that supposedly was the problem. And, the citation of a right to privacy in Georgia courts over a hundred years ago was a result of usage of a likeness in advertising without permission. The opinion might have done with some editing -- it rambles on and on.
A state constitutional approach was in part deemed necessary because Bowers v. Hardwick around a decade before held that same sex sodomy was not a federal constitutional right. It specifically noted that it was only deciding that question so in theory heterosexual fornication was still an open question. The Bowers dissent among other things reminded the majority that the law in question was an anti-sodomy law in general. The reverse was the ultimate case here -- the majority's reach knocked the law as a whole down when the specific case seems like incest.
The state court basically held that it was a private sex act, for the purposes of the case consensual, and thus protected by the right to privacy. The case, except perhaps by citation to other sodomy cases, does not really try to refute the traditional reasons why such laws were deemed a "public" matter.* Nor does Bowers, which first denies it fits within privacy precedents and then says the behavior has been disfavored by law for a long time. The dissents as well as the opinion below challenges this, showing how sexual behavior does fit within privacy precedents, particularly in the home.
The majority also rejected the citation of Stanley v. Georgia, holding that it really a First Amendment case. But, as noted by the primary dissent, its citation of Justice Brandeis' famous privacy dissent (which was a reboot of the law article he co-wrote like forty years earlier) shows it is at best a mixture of the First and Fourth Amendment. As noted by the lower court as well, "the constitutional protection of privacy reaches its height when the state attempts to regulate an activity in the home." Griswold involved use of contraceptives while having sexual relations in a bedroom. A later case deemed the decision fundamental for the unmarried too. Why is it not so for homosexuals making a different form of sexual decision?
The majority was concerned about stretching the principles of past cases too far (three conservative justices were not too gung ho about many of the cases, Powell was uncomfortable with gay cases generally and the fifth was O'Connor, more conservative on this issue early on). But, their reasoning was dubious. Justice Powell concurred separately to underline that Michael Hardwick was not convicted, leaving open a potential Eighth Amendment argument in some other case. But, as noted by Stevens, the law in practice was applied "to those who may be arbitrarily selected by the prosecutor for reasons that are not revealed either in the record of this case or in the text of the statute." The facts of the case suggest this (one of Peter Irons' books has a chapter discussing it) from the original event outside a gay bar.
It might have been a bad time to seek out a Supreme Court judgment protecting a broad right to have intimate same sexual relationships in the Reagan Administration/Burger Court mid-1980s, but it also did not have to reach out to broadly go the other way either. As Stevens noted: "At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss." A limited ruling that Georgia did not have the power to hang over in theory a possible criminal prosecution on the facts of the case while letting the rest linger (no Supreme Court case directly dealt with various heterosexual matters like cohabitation or fornication either) would have been a sound policy.
As is, the matter continued to develop in state courts and eventually the Supreme Court overruled Bowers in Lawrence v. Texas. Since precedent is a concern these days, note how the basis of the original case was shown to be built on sand and events passed it by as well. The development of homosexual relationships in that fashion made the "facetious" nature of fitting it within other precedents akin to minimum wage laws once being seen as an unjust class legislation burdening the liberty of contract.
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* See also, e.g., Roe v. Wade saying that any Victorian moralistic reasons for abortion laws were not relied upon by the state, so they needn't address them. Thus, the opinion mainly dealt with health and the potential life issue, which itself was not covered much. The opinion cites the particular burdensome nature of pregnancy on women, but it was left to a later case to spend much more time on the sex equality issue.
Likewise, a full accounting of anti-homosexual sodomy laws would cite things like the traditional support of one form of sexual relationship and sex roles in general. Or, how marriage itself was seen a narrow winnowing of sexual relationships and fornication laws would be necessary to guard against sexual libertine ways. Non-procreative sex would be particularly problematic in part since there is no pregnancy safeguard. This would underline how sodomy generally would fit in the wider privacy rights that the birth control cases honor. Such matters are now seen as "private" in nature even if they have some sort of public implications.
** A unanimous Court, even after the Supreme Court somewhat broadened the ability to prosecute obscenity, held that Georgia could not prosecute the showing of Carnal Knowledge. The opinion's inclusion of a somewhat risque movie review would be disfavored not that long ago. Recall once a state court only cited the titles of certain birth control materials given the nature of their contents.
Anthony San Juan Powell was charged in an indictment with rape and aggravated sodomy in connection with sexual conduct involving him and his wife's 17-year-old niece in Powell's apartment. The niece testified that appellant had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will.Anyways, the opinion was cited about ninety years later when the Georgia Supreme Court held that heterosexual sodomy (the principle was applied to same sex sodomy too) was protected by a state constitutional right to privacy as well. As general seems to be the case when such sex crime cases arise, the facts are not exactly typical or here charming. The case arose out of what seems to have been a rape [or incest] of a seventeen year old niece but for whatever reason he was only convicted of sodomy. This pops up occasionally with fornication, consent harder to prove. The two key homosexual sodomy cases reached the Supreme Court because the police caught the parties in the act, a not usual occurrence.
A state constitutional approach was in part deemed necessary because Bowers v. Hardwick around a decade before held that same sex sodomy was not a federal constitutional right. It specifically noted that it was only deciding that question so in theory heterosexual fornication was still an open question. The Bowers dissent among other things reminded the majority that the law in question was an anti-sodomy law in general. The reverse was the ultimate case here -- the majority's reach knocked the law as a whole down when the specific case seems like incest.
The state court basically held that it was a private sex act, for the purposes of the case consensual, and thus protected by the right to privacy. The case, except perhaps by citation to other sodomy cases, does not really try to refute the traditional reasons why such laws were deemed a "public" matter.* Nor does Bowers, which first denies it fits within privacy precedents and then says the behavior has been disfavored by law for a long time. The dissents as well as the opinion below challenges this, showing how sexual behavior does fit within privacy precedents, particularly in the home.
No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent.As noted by the other opinions, the right to privacy is not so limited. They writ large (per one decision) involve "the right of an individual to be free in action, thought, experience, and belief from governmental compulsion." It isn't very hard (as seen by many opinions that went the other way) to reason this out to apply to same sex relationships. The lower court noted that homosexual relationships very well can be comparable to marital ones. The intimate association that was recognized in various opinions, if honored with an open mind, very well can be so demonstrated. The majority did not provide anything refuting the argument below on the point.
The majority also rejected the citation of Stanley v. Georgia, holding that it really a First Amendment case. But, as noted by the primary dissent, its citation of Justice Brandeis' famous privacy dissent (which was a reboot of the law article he co-wrote like forty years earlier) shows it is at best a mixture of the First and Fourth Amendment. As noted by the lower court as well, "the constitutional protection of privacy reaches its height when the state attempts to regulate an activity in the home." Griswold involved use of contraceptives while having sexual relations in a bedroom. A later case deemed the decision fundamental for the unmarried too. Why is it not so for homosexuals making a different form of sexual decision?
Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.And, then there is the infamous labeling of the claimed right here "facetious," which was seen by many as particularly crude. The specific argument is that the long time criminality of the act makes the attempt to fit it as part of the right to privacy a very dubious thing. But, as Justice Stevens notes, merely because something is traditionally frowned upon [put aside that as applied, the law appears arbitrary anyway] does not mean that it lacks constitutional protection. The law develops. Justice Powell joined the opinion. What about abortion, whose historical criminality was also cited against Roe v. Wade? Time past that by as the facts show and the same is true here. Historical practice did not save a broad number of laws from sex discrimination claims or a range of sexual materials from protection.**
The majority was concerned about stretching the principles of past cases too far (three conservative justices were not too gung ho about many of the cases, Powell was uncomfortable with gay cases generally and the fifth was O'Connor, more conservative on this issue early on). But, their reasoning was dubious. Justice Powell concurred separately to underline that Michael Hardwick was not convicted, leaving open a potential Eighth Amendment argument in some other case. But, as noted by Stevens, the law in practice was applied "to those who may be arbitrarily selected by the prosecutor for reasons that are not revealed either in the record of this case or in the text of the statute." The facts of the case suggest this (one of Peter Irons' books has a chapter discussing it) from the original event outside a gay bar.
It might have been a bad time to seek out a Supreme Court judgment protecting a broad right to have intimate same sexual relationships in the Reagan Administration/Burger Court mid-1980s, but it also did not have to reach out to broadly go the other way either. As Stevens noted: "At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss." A limited ruling that Georgia did not have the power to hang over in theory a possible criminal prosecution on the facts of the case while letting the rest linger (no Supreme Court case directly dealt with various heterosexual matters like cohabitation or fornication either) would have been a sound policy.
As is, the matter continued to develop in state courts and eventually the Supreme Court overruled Bowers in Lawrence v. Texas. Since precedent is a concern these days, note how the basis of the original case was shown to be built on sand and events passed it by as well. The development of homosexual relationships in that fashion made the "facetious" nature of fitting it within other precedents akin to minimum wage laws once being seen as an unjust class legislation burdening the liberty of contract.
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* See also, e.g., Roe v. Wade saying that any Victorian moralistic reasons for abortion laws were not relied upon by the state, so they needn't address them. Thus, the opinion mainly dealt with health and the potential life issue, which itself was not covered much. The opinion cites the particular burdensome nature of pregnancy on women, but it was left to a later case to spend much more time on the sex equality issue.
Likewise, a full accounting of anti-homosexual sodomy laws would cite things like the traditional support of one form of sexual relationship and sex roles in general. Or, how marriage itself was seen a narrow winnowing of sexual relationships and fornication laws would be necessary to guard against sexual libertine ways. Non-procreative sex would be particularly problematic in part since there is no pregnancy safeguard. This would underline how sodomy generally would fit in the wider privacy rights that the birth control cases honor. Such matters are now seen as "private" in nature even if they have some sort of public implications.
** A unanimous Court, even after the Supreme Court somewhat broadened the ability to prosecute obscenity, held that Georgia could not prosecute the showing of Carnal Knowledge. The opinion's inclusion of a somewhat risque movie review would be disfavored not that long ago. Recall once a state court only cited the titles of certain birth control materials given the nature of their contents.
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