Thomas J. Maroney Article on Bowers v. Hardwick (1987)

BOWERS V. HARDWICK: A CASE STUDY IN FEDERALISM, LEGAL PROCEDURE AND CONSTITUTIONAL INTERPRETATION

Thomas J. Maroney

I.  Introduction

The Supreme Court’s decision in Bowers v. Hardwick[1] is an interesting case study in federalism, legal procedure, and constitutional interpretation. The substantive question—whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy—is inextricable from the procedural context in which the case came to the Supreme Court. The influence of procedure upon substance in the Hardwick case demonstrates what can happen when the Court decides a constitutional question prematurely and a non-principled basis, and how it can lead to an outcome profoundly different from that desired by those who fostered the litigation.

A.  The Arrest and Prosecution of Michael Hardwick

The events that led to a federal court test case on gay/lesbian rights began on August 3, 1982, when a police officer went to the home of Michael Hardwick, a gay Atlanta bartender, to serve him with a warrant for failure to pay a fine for public drunkenness.[2]

The officer asked the man answering the door if Mr. Hardwick was home and the man said he was not sure, but told the officer he could check if he wanted to. The officer walked down a hall to a bedroom where the door was ajar. He saw Mr. Hardwick, 29 years old, and another [adult male] performing oral sex. The officer arrested them both and charged them with sodomy, a felony under Georgia law punishable by up to 20 years in prison.[3]

After a preliminary hearing in Atlanta Municipal Court, Mr. Hardwick was bound over to the Fulton County Superior Court, but District Attorney Lewis Slaton decided not to present the case to a grand jury unless “further evidence” developed.[4] According to Mr. Hardwick’s attorney, Kathleen L. Wilde, “We didn’t know what he meant by further evidence, but that left Michael in never-neverland. The charge of sodomy could be reinstituted at any moment. That was the point at which he decided to challenge the law.”[5] Mr. Hardwick and his lawyer then seize the initiative and literally made “a federal case” out of his arrest and prosecution.

Suit was brought in federal court in Georgia by Mr. Hardwick against Fulton county District Attorney Slaton, State Attorney General Michael Bowers, and Atlanta Public Safety Commissioner George Napper.[6] In his federal action, Mr. Hardwick asked the court to declare the Georgia anti-sodomy statute unconstitutional insofar as it criminalized consensual sodomy.[7] He declared that he was practicing homosexual who regularly engaged in private homosexual acts and would do so again the future.[8] Thus, there were two legal actions pending simultaneously: (1) a criminal prosecution-though a dormant one-by Georgia public officials against Mr. Hardwick in a Georgia state court; and (2) a constitutional civil rights action by Mr. Hardwick against Georgia public officials in a Georgia federal district court.

II.  The Federal Court Decisions

A.  The United States District Court

The United States District Court for the Northern District of Georgia, found that Mr. Hardwick had “standing to sue.”[9] Nonetheless, the court dismissed Mr. Hardwick’s case before trial for failure to state a legal claim upon which relief could be granted.[10]

B.  The United States Court of Appeals for the Eleventh Circuit

The decision was reversed on appeal by the intermediate appellate court for the region that includes Georgia, the United States Court of Appeals for the Eleventh Circuit.[11] The Eleventh

Circuit agreed with the district court that Mr. Hardwick had standing to sue based on his past arrest, “combined with the continuing resolve on the part of the State of Georgia to enforce the anti-sodomy statute against homosexuals and the authenticity of Mr. Hardwick’s desire to engage in the proscribed activity in the future.”[12] It disagreed with the lower court about the merits of Mr. Hardwick’s claim.

The Eleventh Circuit found that the Georgia sodomy statute infringed upon Mr. Hardwick’s fundamental constitutional rights.[13] In reaching its decision, the court reviewed the precedents of the United States Supreme Court. Although that Court had never dealt directly with the constitutionality of an anti-sodomy statute, it had decided a well-known group of cases such as Griswold v. Connecticut,[14] and Roe v. Wade,[15] each involving the constitutional “right to privacy.” Its analysis of Supreme Court precedent led the Eleventh Circuit to conclude that the Georgia statute implicated a “fundamental right” of Mr. Hardwick.[16] The court stated that “the activity he hopes to engage in is quintessentially private and lies at the heart of an intimate association beyond the proper reach of state regulation.”[17] In the circuit court’s view, “such a right is protected by the ninth amendment . . . and the notion of fundamental fairness embodied in the due process clause of the fourteenth amendment. . . .”[18] The Eleventh Circuit, therefore, directed that the case be remanded for a trial at which the Georgia statute would be subjected to “strict scrutiny.”[19]

Georgia officials decided to appeal the Eleventh Circuit’s decision to the Supreme Court, saying “sodomy [is] an unnatural act and a crime against the laws of God and man,” and that the anti-sodomy statute would help reduce the spread of AIDS.[20] The defendants’ persistence was rewarded by the Supreme Court, which reversed the Eleventh Circuit and reinstated the district court’s dismissal of Mr. Hardwick’s federal suit.[21]

C.  The United States Supreme Court

1.  Justice White’s Majority Opinion

The Supreme Court, basing its decision on precedent and policy, rejected Mr. Hardwick’s constitutional claim categorically. Insofar as the claim was based on precedent it was “unsupportable;”[22] insofar as it was based on policy, it was “at best, facetious.”[23] Turning first to precedent, the justices “register[ed] . . . disagreement with the Court of Appeals and with respondent [Hardwick] that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case.”[24] Reviewing its decisions, the Court stated that the privacy right which

they recognized “did not reach so far.”[25] Rather, the cases dealt with child rearing and education,[26] family relationships,[27] procreation,[28] marriage,[29] contraception,[30] and the fundamental individual right to decide whether or not to beget or bear a child.[31] “None of the rights announced in those cases [bore] any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.”[32] Neither the Eleventh Circuit nor Mr. Hardwick demonstrated any “connection between family, marriage, or procreation on the one hand and homosexual activity on the other.”[33] ‘3 3 The Court found “unsupportable” any claim that its precedents stood for the proposition “that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”[34]

Putting precedent aside and turning to policy, the Supreme Court was “quite unwilling” to “announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy.”[35] The due process clauses of the fifth and fourteenth amendments to the United States Constitution provide that neither the federal government nor the states, respectively, shall deprive any person “of life, liberty, or property, without due process of law.”[36] The due process clause of the fourteenth amendment was the sole constitutional basis advanced by Mr. Hardwick to support his position in the Supreme Court.[37]

The Court acknowledged that “the cases are legion” in which it has interpreted the due process clauses to have substantive content, “subsuming rights that to a great extent are immune from federal or state regulation or proscription.”[38] It said that “among such cases [were] those recognizing rights that have little or no textual support in the constitutional language,” including the privacy cases.[39] The Court also acknowledged the difficulty presented by decisions “announcing rights not readily identifiable in the Constitution’s text.”[40] In striving to assure itself and the public that announcing such rights “involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection.”[41] According to the Court, this category includes “fundamental liberties” that are either “ ‘implicit in the concept of ordered liberty,’ “ or “ ‘deeply rooted in this Nation’s history and tradition.’ ”[42] It was obvious to the Court that “neither of [those] formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.”[43] In reaching its decision, the Court examined the cultural and political background concerning sodomy, from antiquity through the present day. Against this background, the Court concluded that it was “at best, facetious” to claim that a right to engage in such conduct fell within either formulation of fundamental rights and liberties.[44]

Elaborating upon the decisional process, Justice White wrote in unusually candid terms about the respective roles of the Court and the representative branches of government. He stated that the

Court was not “inclined to take a more expansive view of [its] authority to discover new fundamental rights imbedded in the Due Process Clause,”[45] because “the Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no recognizable roots in the language or design of the Constitution.”[46] He recalled the painful demonstration of this principle in the “face-off between the Executive and the Court in the 1930’s,” and concluded that there should be “great resistance to expand the substantive reach of those [Due Process] Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.”[47] The claimed right pressed upon the Court by Mr. Hardwick fell “far short of overcoming this resistance.”[48]

The Supreme Court distinguished its decision in Stanley v. Georgia,[49] overturning a conviction for possessing obscene materials in the privacy of the home, on the basis that Stanley was “firmly grounded in the First Amendment.”[50] In contrast, “the right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment.”[51]

The Court also found it difficult to discern the limits of Mr. Hardwick’s assertion that conduct such as his should be protected because it occurs in the privacy of the home. “Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home.”[52] Even if his assertion were limited to voluntary sexual conduct between consenting adults, the Court concluded, “it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.”[53] The Court was “unwilling to start down that road.”[54]

Because the Supreme Court declined to recognize the constitutional right asserted by Mr. Hardwick, it found no occasion to discuss or apply the standard mentioned by the Eleventh Circuit[55] for judging the constitutionality of a law that impinges upon a fundamental right. As noted above, the “strict scrutiny” test would have imposed a considerable burden of justification upon governmental officials.[56] Mr. Hardwick also contended that, even if the conduct

at issue was not a fundamental right, there must be a “rational basis” for a law regulating that conduct.[57] He asserted that there was no basis for the law “other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.”[58] The Court rejected Mr. Hardwick’s contention that this was an inadequate rationale to support the anti-sodomy law.[59] The Court further noted that the law 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.”[60] It rejected Mr. Hardwick’s narrower contention that “majority sentiments about the morality of homosexuality should be declared [an] inadequate [justification],” stating that it was “unpersuaded that the sodomy laws of some 25 states should be invalidated on this basis.”[61]

2.  Chief Justice Burger’s Concurring Opinion

Warren E. Burger, then the Chief Justice, wrote a brief concurring opinion to underscore his view that “in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.”[62] Citing examples, the Chief Justice asserted that “decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization.”[63] In his view, “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”[64]

3.  Justice Powell’s Concurring Opinion

Justice Lewis Powell also wrote a brief concurring opinion agreeing with the Court’s disposition of Mr. Hardwick’s constitutional claim, and raising the possibility of an eighth amendment “cruel and unusual punishment” defense to a prosecution under the Georgia anti-sodomy statute.[65] He noted that prior to the complaint against Mr. Hardwick, there had been no reported decision involving prosecution for private homosexual sodomy under the Georgia statute for several decades, and that the state had declined to present the criminal charge against Mr. Hardwick to a grand jury.[66] The history of nonenforcement suggested to Justice Powell “the moribund character today of laws criminalizing this type of private, consensual conduct”;[67] in addition, “some 26 states have repealed similar statutes.”[68]

Nevertheless, the constitutional validity of the Georgia statute was put in issue by the federal court declaratory judgment action brought by Mr. Hardwick.[69] Justice Powell, therefore, expressed his agreement with the Court majority that “there is no fundamental right–i.e., no substantive right under the Due Process Clause–such as that claimed by respondent [Hardwick], and found to exist by the Court of Appeals.”[70] Relying upon the reasons stated by the Court, Justice Powell added: “I cannot say that conduct condemned for hundreds of years has now become a fundamental right.”[71]

Justice Powell also expressed his views on another matter that he conceded was not then before the court–the possibility of an eighth amendment defense to a prosecution under the Georgia

anti-sodomy statute.[72] He noted that the Georgia statute authorized a court to imprison a person for up to twenty years for a single, private, consensual act of sodomy.[73] This sentence is comparable to possible sentences for such serious felonies as aggravated battery, first-degree arson, and robbery.[74] In Justice Powell’s view, “a prison sentence for such conduct—certainly a sentence of long duration—would create a serious Eighth Amendment issue.”[75]

4.  Justice Blackmun’s Dissenting Opinion

Justice Harry Blackmun, author of the Court’s 1973 abortion rights decision in Roe v. Wade,[76] wrote an extensive and outspoken dissenting opinion that was joined by Justices William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens.[77] He accused the majority of “willful blindness,”[78] refusal to consider “the broad principles that have informed our treatment of privacy in specific cases,”[79] and having an “almost obsessive focus on homosexual activity.”[80] He disagreed with the majority’s narrow characterization of the right at issue, explored the decisional and spatial aspects of the right of privacy, and rejected the defendant-public officials’ justifications for the Georgia anti-sodomy law.[81]

In Justice Blackmun’s view, the case was not about a “fundamental right to engage in homosexual sodomy,” as the majority purported to declare.[82] Rather, in the words of Justice Louis Brandeis’s famous dissent in Olmstead v. United States,[83] it was about “ ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’ “[84] Thus, it was necessary to analyze Mr. Hardwick’s claim “in the light of the values that underlie the constitutional right to privacy.”[85] Justice Blackmun wrote:

[I]f that right means anything, it means that before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert, as the Georgia Supreme Court did in the 1904 case of Herring v. State, that the choice they have made is an ‘abominable crime not fit to be named among Christians.’[86]

The case should not have been dismissed before trial because Mr. Hardwick stated a legally sufficient claim that the Georgia anti-sodomy law interfered with “constitutionally protected interests in privacy and freedom of intimate association.”[87] Quoting prior precedent, Justice Blackmun stated that “ ‘Our cases have long recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.’ ”[88] In construing the right to privacy, Justice Blackmun pointed out that the Court has proceeded along two somewhat distinct, albeit complementary, lines recognizing a privacy interest with reference to (1) “certain decisions that are properly for the individual to make,” and (2) “certain places without regard for the particular activities in which the individuals who occupy them are engaged.”[89]

Justice Blackmun believed the case implicated both the decisional and spatial aspects of the right to privacy.[90] The decisional aspect involved “the fundamental interest all individuals have in controlling the nature of their intimate associations with others,”[91] and “the right to choose for themselves how to conduct their intimate relationships.”[92] The spatial aspect involved “the right of an individual to conduct intimate relationships in the intimacy of his or her own home.”[93]

Because he found that Mr. Hardwick had a fundamental constitutional right, Justice Blackmun proceeded to apply the rigorous test of strict scrutiny to the justifications advanced for the Georgia anti-sodomy law.[94] Justice Blackmun found these justifications insufficient, and concluded his opinion by expressing the hope that the Supreme Court would soon reconsider its analysis and recognize that “depriving individuals of the right to choose for themselves how to conduct their intimate relationship poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do.”[95]

5.  Justice Stevens’ Dissenting Opinion

Justice John Paul Stevens also wrote a dissenting opinion that was joined by Justices Brennan and Marshall. He emphasized that both the Georgia statute and the rationale of the majority’s opinion applied “equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or of the same or different sexes.”[96] It was clear from the text and legislative history of the statute that it expressed “the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it.”[97]

Thus, for Justice Stevens, a proper analysis of the constitutionality of the Georgia statute required consideration of two questions. The first question was “may a state totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction?”[98] It was “perfectly clear” to Justice Stevens that it could not do so.[99] “The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”[100] Justice Stevens wrote that “individual decisions by married [or unmarried] persons concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.”[101] “Paradoxical as it may seem,” said Justice Stevens, “our prior cases thus establish that a State may not prohibit sodomy within ‘the sacred precincts of marital bedrooms,’ . . . or, indeed, between unmarried heterosexual adults.”[102]

The second question was if total prohibition is not permissible, “may the State save the statute by announcing that it will only enforce the law against homosexuals?”[103] Justice Stevens asserted that the State might attempt to justify selective application of the anti-sodomy statute on either of two grounds: that “the persons to whom [it] seeks to apply [the] statute do not have the same interest in ‘liberty’ that others have; or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.”[104]

Neither possibility was acceptable to Justice Stevens.

[E]very free citizen has the same interest in ‘liberty’ that the members of the majority share . . . the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.[105]

Similarly, “[a] policy of selective application must be supported by a neutral and legitimate interest–something more substantial than a habitual dislike for, or ignorance about, the disfavored group.”[106] Neither the State of Georgia nor the Court majority identified any such interest in this case. “T]he Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment,” and thus, could not be used as evidence of the presumed belief of a majority of the Georgia electorate that homosexual sodomy is immoral and unacceptable, the approach taken by the majority.[107] Indeed, the Georgia prosecutor did not even believe that all homosexuals who violated the statute should be punished. This was evidenced by Mr. Hardwick’s situation and the fact that the prohibition on private, consensual sodomy has not

been enforced for decades.[108] Thus “the State’s post hoc explanations for selective application are belied by the State’s own actions.”[109] 

III.  Critique

A.  Reaction to the Decision

Reaction to the Supreme Court’s decision in Bowers v. Hardwick was swift and intense–and predictably divergent. “It’s a major disaster from our point of view,” said Thomas Stoddard, executive director of the Lambda Legal Defense and Education Fund, a leading homosexual advocacy group.”[110] In contrast, Noach Dear, a New York City Council member who led efforts to defeat a homosexual rights bill passed by the City in 1986, stated: “This is the best decision ever made.”[111] “I applaud the decision,” said the Reverend Jerry Falwell, “[because] the highest court has recognized the right of a state to determine its own moral guidelines, and it has issued a clear statement that perverted moral behavior is not accepted practice in this country.”[112]

B.  A Procedural Lesson: A Premature and Unnecessary Decision

Regardless of one’s personal reaction, there are two general lessons, one procedural and one substantive, that can be learned from the Supreme Court’s handling of Mr. Hardwick’s case and of the underlying constitutional question that it presented. The first is that the Supreme Court could and should have dismissed the Hardwick case on procedural grounds, without ever reaching the merits of the constitutional claim. To do so, it could have invoked either the constitutionally mandated requirements of “standing” and “ripeness,”[113] or the judicially self-imposed requirement of “Our Federalism.”[114] It is ironic that, in a time when “judicial restraint” is touted by some, including President Ronald Reagan,[115]  as a high virtue, the Court did not proceed in this manner.

Federal court litigation, including constitutional challenges to state legislation like the Georgia anti-sodomy law, cannot be instituted by just anyone. The constitutional requirement that the federal courts hear only “cases and controversies”[116] means that a prospective suitor must have “standing,” that is, he must have a “personal stake” in the outcome of litigation.[117] It also means that the matter must be “ripe” for decision, that is, there must be a “real,” and not a “hypothetical” threat to the suitor’s interest.[118]

The Supreme Court could easily have found that these related requirements were not satisfied in the Bowers case. The charge against Mr. Hardwick was dismissed sometime in 1982, although it is not clear whether this occurred before or after he initiated his federal court action. Even though the statute of limitations had not run, it was obvious that the Fulton County prosecutor was not actively pursuing the charge, an action that was consistent with the state-wide pattern of nonenforcement of the anti-sodomy statute noted by Justices Powell and Stevens. In such circumstances, the Supreme Court could have dismissed the Bowers case without ever reaching the merits by holding that the requirements of standing and ripeness were not satisfied, because no constitutional interest personal to Mr. Hardwick was actually being threatened at the time the federal action was begun or thereafter.

The Supreme Court could also have dismissed the case on the alternative procedural ground of “Our Federalism.”[119] Under this doctrine, a federal district court presented with a constitutional claim, must, with a few very narrow exceptions,[120], decline jurisdiction and dismiss the case when there is a pending state criminal proceeding against the same individual in state court.[121]

The Eleventh Circuit explicitly found that there was a genuine threat to Mr. Hardwick sufficient to satisfy the standing and ripeness requirements,[122] and the Supreme Court made such a finding implicitly.[123] Neither, however, discussed “Our Federalism,” even though the pendency of a state prosecution against Mr. Hardwick would have the additional effect of calling into play the restraints of that doctrine. If that were so, the federal district court should not have entertained Mr. Hardwick’s suit in the first place, and the Supreme Court should have directed that it be dismissed in the interests of federalism.

The Supreme Court’s failure to dismiss the Hardwick case on either of these available procedural grounds is both explicable and instructive. The simple explanation is that those on both sides of the litigation were anxious for a decision on the merits of Mr. Hardwick’s constitutional claim. Additionally, the federal courts, especially the Eleventh Circuit Court of Appeals and the Supreme Court, were eager to oblige them. Mr. Hardwick obviously wanted out of “never-never land,” so that he could continue to live the life-style avowed in his federal court pleadings. He was also willing to be the agent of homosexual activists seeking social change. The defendant public officials were not inclined to stand in the way of these efforts by raising procedural objections. They did not dispute that enforcement of the anti-sodomy statute caused the injury alleged by Mr. Hardwick–and even the injury alleged by the Does–and that the relief requested would likely redress these injuries. Similarly, they did not suggest any prudential reasons to refuse to hear the case.

The Eleventh Circuit Court desired to add its voice to the already conflicting decisions of the federal courts of appeal, no doubt in the hope of persuading the Supreme Court that “the intimate

associations protected by the Constitution are not limited to those with a procreative purpose.”[124] The Supreme Court was “quite unwilling” to be persuaded!

In Doe v. Commonwealth’s Attorney,[125] without issuing an opinion, the Court had summarily upheld the constitutionality of the Virginia anti-sodomy statute. When the Hardwick case came before it, the Supreme Court preferred “to give plenary consideration to the merits,” rather than to rely upon the Doe disposition.[126] The reason was clear, as Justice Blackmun pointed out in his dis- *1239 sent.[127] The Supreme Court’s “haste to reverse the Court of Appeals”[128] reflected its rejection of that court’s sympathetic view of Mr. Hardwick’s claim, and the imposition of its own view that the claim was “unsupportable” and “at best, facetious.”[129]

The end result of this confluence of desire for a decision on the merits was the Supreme Court’s categorical denial of the very existence of the right claimed, whether it be defined narrowly as

the right to engage in homosexual sodomy, or broadly as the right of privacy and intimate association. I submit that this outcome could–and should–have been avoided by dismissing the Bowers case on one of the two procedural grounds discussed above. Such a dismissal, concededly, would have left open the constitutionality of state anti-sodomy statutes, but it would also have left the underlying matter of private sexual morality to be decided by the people of the fifty states through the political process.

That was precisely the course of action recommended by Justice White when he dissented from the Court’s 1973 decision in Roe v. Wade recognizing a woman’s qualified right to have an

abortion.[130] He wrote there: “This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their [affairs].”[131] It is difficult to see why “judicial restraint” and deferral were appropriate for one issue of private sexual morality and not the other, unless Justice White’s views in the Bowers case reflected simple homophobia and personal disapproval.

There seems to be an emerging societal consensus that it is undesirable and unnecessary to attempt to regulate private sexual conduct between consenting adults, whatever their marital status and gender, through anti-sodomy laws.[132] A number of anti-sodomy statutes have been repealed.[133] Others, which applied only to homosexuals, have been judicially invalidated as denials of equal protection.[134] Still others, including the Georgia statute, have become moribund.[135]

In light of these repeals and invalidations, and the “desuetude” in enforcement of the statutes still on the books, the constitutional issue presented in Bowers might better have been left in judicial abeyance. The reasons why are suggested by Anthony Lewis of the New York Times, drawing upon the constitutional views of the late Yale Law School scholar, Alexander Bickel. Mr. Lewis criticizes the Supreme Court’s rush “to pass judgment on a criminal law that was not pressed against Mr. Hardwick and has not been used against anyone for decades.”[136] He points out the “old rule, a conservative rule, that the Supreme Court will not decide constitutional issues in the abstract,” since “concreteness brings meaning to the issues.”[137] Bowers, in Mr. Lewis’s view, “will be seen . . . as a classic example of the unwisdom of taking constitutional

issues to the courts prematurely.”[138] This is because of what Professor Bickel called the “legitimating force” of a Supreme Court decision upholding a statute challenged on constitutional grounds.[139] Mr. Lewis fears that “the unnecessary sodomy decision . . . will tend to legitimate atavistic attitudes in our society.”[140] Similarly, leaders of homosexual organizations and their lawyers fear that the decision will make it more difficult for them to achieve other objectives, such as child-custody rights for homosexuals, and will lead to an upsurge of police harassment, dismissals, and evictions.[141]

The points of the Lewis critique are well taken, but if the fears expressed materialize, a major share of the responsibility will have to be borne by the advocates who initiated the federal court action bearing Mr. Hardwick’s name. Their decision to proceed in this manner was, apparently, the decisive factor in the outcome of the case in the Supreme Court.

After the Hardwick decision was handed down, the Washington Post reported that Justice Lewis Powell had initially decided to provide the fifth vote necessary to make Justice Blackmun’s position the holding of the Court.[142] Although he disagreed with Blackmun’s reasoning, Powell was prepared to vote with him because of his own belief that anti-sodomy laws are useless, never enforced, and unenforceable.[143] Before a final vote was taken, however, Justice Powell changed his mind, sided with Justice White, and a “furious” Justice Blackmun wound up writing a dissenting opinion.[144]

The procedural posture of the case was, apparently, the critical factor inducing Justice Powell’s change in position. Had Mr. Hardwick been appealing from a state court conviction under the anti-sodomy statute, Justice Powell might well have voted to reverse the conviction as cruel and unusual punishment; he said as much in the brief concurring opinion that he submitted. As the

case stood, however, Justice Powell voted with the majority because he shared its unwillingness to recognize the fundamental right asserted by Mr. Hardwick.

The Supreme Court’s decision certainly took Mr. Hardwick out of “never-never land.” It also put him, other gays and lesbians, and possibly even heterosexuals, in a far worse position—beyond the pale of the law–with respect to a most intimate aspect of their private lives. This was hardly the desired outcome and it raises a question as to the wisdom of initiating the federal case in the circumstances presented. In the words of the late Chief Justice Harlan Fiske Stone, “discrete and insular minorities” have often asked the judiciary, especially the Supreme Court, to give a “sober

second thought” to the constitutionality of legislation affecting them, seeking to reform the law in the process.[145] This is well within the suitors’ rights as citizens and the Supreme Court’s responsibility as “ultimate interpreter” of the Constitution.

The Hardwick case demonstrates, however, that it is difficult to render a truly sober second thought prematurely and in the abstract.  It also demonstrates that would-be litigants should think twice before making a “federal case” out of their situation. They may find it better to endure a status quo that tolerates conduct for which constitutional sanction is sought, than to be told by an authoritative pronouncement of the highest court in the land that the conduct can be banned altogether. That is the procedural lesson to ponder.

C.  A Substantive Lesson

The substantive lesson of the Bowers case relates to how the judicial function should be performed and to the Supreme Court’s authority to articulate new constitutional rights. I submit that the Court, having reached the merits, was bound to decide the Hardwick case on a principled basis, but failed to do so. I also submit that, in our system of limited constitutional government, the Supreme Court has full authority to articulate new constitutional rights, and thus, the self-doubts expressed by Justice White were unfounded.

By constitutional design the judicial function differs from the functions of the other branches of government. As Professor Bickel wrote in his classic study of judicial review, The Least Dangerous Branch,[146] “courts have certain capacities for dealing with matters of principle that legislatures and executives do not possess.”[147] Because of these capacities, the judiciary is viewed as the “pronouncer and guardian” of “enduring values.”[148]

Courts perform a policy-making function when they review the constitutionality of the actions of the other branches. As pointed out by the late Professor Herbert Wechsler in his famous essay,

Toward Neutral Principles of Constitutional Law,[149] courts are “bound to function otherwise than as a naked power organ; they participate as courts of law.”[150] Judges must, therefore, base their decisions on what Bickel called “impersonal and durable principles,”[151] and what Wechsler called “neutral principles.”[152] A principled judicial decision, according to Wechsler, “is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.”[153]

Measured by the Bickel-Wechsler yardstick, the Supreme Court’s decision in Bowers, to borrow a phrase, falls “far short” of being principled. It does not embrace a neutral principle, though one was available, nor is it based upon general and neutral reasoning transcending the immediate case. On the contrary, the opinions of Justice White and Chief Justice Burger simply sanction the homophobia reflected in anti-sodomy statutes. This is clear from Justice White’s rejection of Mr. Hardwick’s contention that majority sentiments about the immorality of homosexuality are an inadequate justification for such legislation.[154] Bill Gripp, a board member of the Atlanta Gay Center, said of the Hardwick decision: “I think the decision is ridiculously inappropriate, very homophobic, very uninformed. The Supreme Court made its decision based on who brought the suit rather than on the basis of the issue.”[155]

It is hard to quarrel with Mr. Gripp’s assessment of the basis for the Court’s decision when one reviews Justice White’s majority opinion. His narrow characterization of the question presented as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,”[156] was a clear signal that the Court would be “quite unwilling” to respond in the affirmative. The peremptory and dismissive tone of the opinion was the confirmation: Mr. Hardwick’s claim was “unsupportable,” and “at best, facetious;” it was “obvious” that the right claimed was not fundamental, bore no “resemblance” or “connection” to rights previously “announced” by the Court, and would require “redefining the category of rights deemed to be fundamental;” similarly, the line of demarcation suggested by Mr. Hardwick for permitting certain private, voluntary sexual conduct between consenting adults would be difficult to draw except by judicial “fiat.” Considering the certitude he expressed, it is a wonder that Justice White’s four-and-one-half page opinion was not even shorter, and that he did not chide Mr. Hardwick’s Supreme Court lawyer, Harvard Constitutional Law Professor Laurence H. Tribe, for wasting the Court’s valuable time with “facetious” arguments. It is Justice White, however, who should be chided for using hyperbole to give the judicial “brush-off” to a claim that was both substantive and based soundly upon precedent.

The Eleventh Circuit Court of Appeals and the dissenting Supreme Court Justices had no difficulty articulating a principled basis upon which to judge the constitutionality of the Georgia anti-sodomy statute. Their position is best represented by Justice Blackmun’s summary of the decisional and spatial aspects of the constitutionally protected interest in privacy and freedom of intimate association.[157]

Ironically, Justice White had no difficulty identifying the available neutral principle either; he simply refused to embrace it. A principle of sufficient generality and neutrality can be enunciated

by using Justice White’s own terminology: “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”[158] The fundamental right based upon this principle is supported by a fair-minded reading of the Supreme Court’s privacy precedents;[159] it would encompass all private voluntary sexual conduct, regardless of whether it was procreative or not, and regardless of the parties’ marital status and gender.

Justice White’s unwillingness to embrace the neutral principle that he recognized was not justified by any principled explanation. One can only infer, therefore, that he could offer none, and was simply mirroring and sanctioning societal attitudes about the unacceptability of homosexual conduct. That is not a principled basis for judicial decisionmaking. In 1985, Judge Richard Posner of the Seventh Circuit Court of Appeals complained that “[f]ederal judges have imposed their personal values and policy preferences on the nation.”[160] Judge Posner, a former Chicago law professor and conservative jurist, who is often mentioned as a possible Supreme Court nominee, was clearly referring to “activist” and “liberal” judges, but his observation applies with equal force to those generally considered to be “moderate” or “conservative,” such as Justice White.

Judge Posner was simply echoing a sentiment expressed long ago by the great Justice Oliver Wendell Holmes.[161] Holmes wrote that a constitution “is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”[162] The Court majority, Chief Justice Burger and, to a lesser extent, Justice Powell, ignored Holmes’ sound counsel. The reason may have been what Justice Blackmun called the majority’s “almost obsessive focus

on homosexual activity,”[163] or what Justice Stevens called “habitual dislike for, or ignorance about, the disfavored group.”[164] Whatever the reason the Court’s decision was based more on personal prejudice than on principled reasoning.

The second aspect of the substantive lesson is that the Supreme Court has full authority to articulate new constitutional rights and that the self-doubts expressed by Justice White are unfounded. According to Justice White, the Supreme Court is “most vulnerable” and comes “nearest to illegitimacy”[165] when it announces “rights not readily identifiable in the Constitution’s text,”[166] or deals with “judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”[167] The Court should offer “great resistance” to expanding the reach of substantive due process, particularly where a redefinition

of the fundamental rights category would be required; otherwise the judiciary “necessarily takes to itself further authority to govern the country without express constitutional authority.”[168] 

Because of these misgivings, the Court majority was not “inclined to take a[n] . . . expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause.”[169] And, in particular, it was “quite unwilling” to “announce . . . a fundamental right to engage in homosexual sodomy.”[170] At the same time, however, Justice White acknowledged that the cases are “legion” under the due process clause “recognizing rights that have little or no textual support in the constitutional language,” including its right to privacy cases.[171]

The majority’s narrow view of its law-making authority is unfounded, and its unwillingness to “discover” or “announce” a fundamental right of private, intimate association is paradoxical when one considers the “legion” of cases in which, admittedly, other fundamental rights have been recognized. The nature of a constitution and the judiciary’s role in a system of limited, constitutional government was well-stated by the great Chief Justice, John Marshall, in one of his classic decisions, McCulloch v. Maryland.[172] Upholding the constitutionality of the Second Bank of the United States, Marshall wrote that “a constitution [is] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”[173] Accordingly, “we must never forget that it is a constitution we are expounding.”[174]

Expounding a constitution is an ongoing, dynamic process, one for which the judiciary is uniquely well-suited. As Alexander Bickel pointed out:

[O]ur system . . . calls for the evolution of principle in novel circumstances, rather than only for its mechanical application. Not merely respect for the rule of established principles but the creative establishment and renewal of a coherent body of principled rules–that is what our legislatures have proven themselves ill-equipped to give us.[175]

The Supreme Court has performed this function of establishing, evolving, and renewing principled rules throughout its history beginning with the seminal case of Marbury v. Madison[176] in 1803. Whether its authority to do so is express or implied, it is undisputed that the Court has come to be accepted as “the ultimate interpreter” of the Constitution.[177] As stated in Cooper v. Aaron,[178] a case that involved desegregation of the Little Rock public schools, the Marbury decision “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”[179] The law expounded by the Court has not always been enlightened nor has it always found easy acceptance. The role of the Court, however, has not been questioned. As historian Leonard Levy has written: “judicial review would never have flourished had the people been opposed to it. They have opposed only its exercise in particular cases, but not the power itself.”[180]

From the foregoing discussion it is clear that the Supreme Court’s authority to expound “the law of the Constitution” includes the power to evolve principles in novel circumstances by articulating new constitutional rights. Over the years the Court has done just that, relying upon such constitutional provisions as the obligation of contracts clause in article I, section 10,[181] the provisions of the Bill of Rights[182] (especially the first eight amendments),

the equal protection clause of the fourteenth amendment,[183] and the due process clauses of the fifth and fourteenth amendments.[184] The rights “discovered,” “announced,” or “recognized”–whatever the appropriate term–under all of these provisions except the due process clauses are, presumably, invulnerable and legitimate in Justice White’s eyes. The reason is that they are “textual,” that is, they can be traced to the language of a particular provision of the Constitution.[185]

It was on this basis, for example, that Justice White distinguished the case of Stanley v. Georgia.[186] That decision was “firmly grounded in the First Amendment,” but the right pressed upon the Court by Mr. Hardwick had “no similar support in the text of the Constitution.”[187] What was true of Mr. Hardwick’s claim, a fortiori, is also true of the fundamental economic and personal rights recognized in the “legion” of cases mentioned by Justice White, because they too had “little or no textual support in the constitutional language.”[188]

Justice White’s textual/non-textual dichotomy is misleading, if not illusory, and his concern about vulnerability and legitimacy is overblown. The nature of constitutional language, as explained by two great jurists, Chief Justice John Marshall and Judge Learned Hand, makes clear the tenuousness of any textualist argument. In his McCulloch opinion, Marshall stated that the nature of a constitution “requires only that its great outlines should be marked, its important objects designated.”[189] The language through which this was done in the United States Constitution has been described by Archibald Cox as “majestic generalities.”[190] A careful reading of the provisions most often relied upon by the Court over the years may cause the reader to doubt that many of the rights it has recognized and protected are “readily identifiable in the Constitution’s text.”

The first amendment right recognized by the Court in Stanley v. Georgia,[191] which Justice White mentions, serves as a good example. The text of the First Amendment provides that the government shall “make no law . . . abridging the freedom of speech.”[192] In the Stanley case, the Court held that there is a constitutional right “to receive information and ideas, regardless of their social worth” and that this right is “fundamental to our free society.”[193] I submit that one would be hard pressed to explain why Mr. Stanley’s fundamental right to receive even obscene information and ideas is “firmly grounded” and “readily identifiable” in the First Amendment’s terse ban on abridging “the freedom of speech,” but Mr. Hardwick’s claim of a fundamental right to private, intimate association can find “no similar support” in the text of the fourteenth amendment’s due process clause, which forbids a deprivation of “life, liberty or property without due process of law.”[194] A possible, though unacceptable, explanation is that the Court found the former claim “natural and familiar,” and the latter claim “novel and shocking.”

Justice White’s concern about legitimacy is overblown. It cannot be denied that the due process clauses were procedural in origin, but the cases that Justice White acknowledges are proof that they have also come to be seen as a check on the substance of legislation that threatens to deprive a person of “life, liberty or property.” In some instances protection for these fundamental rights can be found under another constitutional provision, such as the obligation of contracts clause for property rights,[195] or the equal protection clause for personal rights.[196] In other instances, however, due process is the most appropriate constitutional vehicle. When that is so, the Court is not unilaterally attempting to extend its authority to govern the country, as Justice White suggests. It is simply serving as the “pronouncer and guardian” of “enduring values,” and engaging in its well-established function of creating, evolving, or renewing “a coherent body of principled rules.”[197]

The Court’s substantive due process decisions have produced some of the sharpest reactions from the people and their elected *1250 representatives.[198] That is a natural and healthy feature of the system of limited, constitutional government whose bicentennial we have just celebrated, and not a reason for judicial timidity.

I submit that the use of substantive due process to articulate a fundamental right of private, intimate association would have been a perfectly legitimate, principled exercise of the Court’s authority, consistent with both the “language and design” of the Constitution. The right of privacy is “firmly grounded” in the text of the Constitution, specifically the reference to “liberty” in the due process clauses. Even more fundamentally, as Justices Blackmun and Stevens make clear, it is consistent with the constitutional “design.” That design embodies what Justice Brandeis called “the right to be let alone.”[199] For as Justice Blackmun stated, “the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.”[200] As Justice Stevens wrote, the Court’s previous decisions emphasizing the individual interest in privacy bring to mind “the origins of the American heritage of freedom-the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable.”[201] Justice Stevens also indicated the special role of the judiciary in the protection of fundamental rights, stating that “federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.”[202] Bowers v. Hardwick was one such case, but unfortunately, federal judges, including a majority of the Supreme Court, shirked their responsibility to recognize and protect the right of private, intimate association. Considering the “times,” and the likely trend of the Court in the foreseeable future, it is likely to be a long while before Justice Blackmun’s hope for a reconsideration will come to pass.