LAW
GPO-CONAN-2017-10-15.pdf

For a time the limits of the privacy doctrine were

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For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick , 678 where the Court by a 5–4 vote roundly rejected the suggestion that the privacy cases protect- ing “family, marriage, or procreation” extend protection to private consensual homosexual sodomy, 679 and also rejected the more com- prehensive claim that the privacy cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.” 680 Heavy reli- ance was placed on the fact that prohibitions on sodomy have “an- cient roots,” and on the fact that half of the states still prohibited the practice. 681 The privacy of the home does not protect all behav- ior from state regulation, and the Court was “unwilling to start down [the] road” of immunizing “voluntary sexual conduct between con- senting adults.” 682 Interestingly, Justice Blackmun, in dissent, was portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717. 678 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion. 679 “[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.” 478 U.S. at 190–91. 680 Justice White’s opinion for the Court in Hardwick sounded the same opposi- tion to “announcing rights not readily identifiable in the Constitution’s text” that underlay his dissents in the abortion cases. 478 U.S. at 191. The Court concluded that there was no “fundamental right [of] homosexuals to engage in acts of consen- sual sodomy,” as homosexual sodomy is neither a fundamental liberty “implicit in the concept of ordered liberty” nor is it “deeply rooted in this Nation’s history and tradition.” 478 U.S. at 191–92. 681 478 U.S. at 191–92. Chief Justice Burger’s brief concurring opinion ampli- fied this theme, concluding that constitutional protection for “the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.” Id. at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id.
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