Supreme Court Proscribes a View of Privacy

A century ago, the Supreme Court excluded blacks from civil society. All want to believe that the court had learned from that shameful episode--that it would not again merely curry public opinion, but could be counted on to protect minorities from oppression. Apparently not. Two weeks ago, the court did to gays and lesbians what it had done to blacks. Its decision in the Georgia sodomy case reflects the same failure of insight, judicial responsibility and human decency.

Charged with violating the Georgia sodomy statute in his bedroom, Michael Hardwick invoked the rights of personal privacy and intimate association established by a line of Supreme Court decisions over the past 60 years. A reader of those cases might well have supposed that their principles extended to all citizens, even to homosexuals.

Hardwick was caught in a liaison with another man. Like most sodomy laws, however, the Georgia statute makes no distinctions based on the parties’ sex or marital status. For example, it applies to oral sex between a husband and wife--an intrusion that even the state’s attorney general conceded was unconstitutional. Nothing required the Supreme Court to focus on the statute’s application to homosexuals, rather than address the law on its own broad terms. Had the court invalidated the statute as written, the legislature might have responded with a law that punished only homosexuals. Just as likely, however, it would have let the matter rest--for political, moral or humanitarian reasons. (More than half the states have repealed their sodomy laws.) The court in this decision preempted the legislative judgment. Without addressing whether a state could prohibit sodomy between a man and woman, it sanctioned punishment of homosexual behavior.

Every first-year law student learns that the way you state the issues in a case can determine its outcome. In his opinion for the majority, Justice Byron R. White chose to describe Hardwick’s constitutional claim and the court’s precedents both in the most limited and antithetical terms. He asserted that Hardwick demands the “right of homosexuals to engage in acts of sodomy” while the precedents protect only marriage, family and the decision whether to have a child. White’s solemn conclusion that “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy” gives no hint that the precedents established general principles of personal autonomy and privacy.

The court also relies heavily on the long history of sodomy as a criminal offense. Observing that U.S. sodomy laws date back to the original 13 states, White describes Hardwick’s constitutional claim as “at best, facetious.” But the argument that the law’s age insulates it from the Constitution is disingenuous in several ways. Since sodomy statutes apply to heterosexuals, their history would permit states to intrude into relations between a husband and wife. More fundamentally, the same use of history would have led to different outcomes in hundreds of other Supreme Court cases--for example those prohibiting discrimination against blacks, women and the poor. The court has not previously suggested that a long-standing custom of discrimination against a group renders its constitutional claims facetious.

The majority’s opinion in Hardwick, while written by a skilled jurist, is so lacking in legal craft that it makes one wonder what was going on. Historian C. Vann Woodward observed that, in the 19th Century, the court “was engaged in a bit of reconciliation with the South . . . achieved at the Negro’s expense.” This sodomy ruling, coming only two weeks after the court reaffirmed its controversial 1973 abortion decision, may represent an attempt at reconciliation with the religious right. Also, the justices’ personal feelings about homosexuality may have played the same role in Hardwick as their predecessors’ racial prejudice did in earlier cases. Chief Justice Warren E. Burger left little doubt about his own attitude. He wrote in a concurring opinion: “To hold that the act of homosexual sodomy somehow is protected as a fundamental right would be to cast aside millennia of moral teaching.” Although White was not so direct, his dismissive tone, and what Justice Harry A. Blackmun’s eloquent dissent characterized as his “almost obsessive focus on homosexual activity,” betray a discomfort with the notion that our common humanity might include gays and lesbians.

Whatever the justices’ motivation, Hardwick represents a dereliction of duty. The judiciary is the only government branch designed to protect relatively powerless groups against prejudice and oppression by the majority. In Hardwick, the Supreme Court not only failed to extend protection to homosexuals, it went out of its way to deny it to them.

Dissenting in Plessy vs. Ferguson, where the majority upheld racial segregation, Justice John M. Harlan predicted that the ruling would “in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.” It took a half-century to prove him right. I hope, though without much confidence, that the court will not take so long to correct its error in Hardwick.