The right to be left alone v. the crime against nature: An analysis of Bowers v. Hardwick Item Type text; Dissertation-Reproduction (electronic) Authors Torges, Gwendolyn B. Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 04/10/2021 05:47:44 Link to Item http://hdl.handle.net/10150/298801 THE RIGHT TO BE LEFT ALONE V. THE CRIME AGAINST NATURE: AN ANALYSIS OF BOWERS V. HARDWICK by Gwendolyn Beth Torges Copyright © Gwendolyn Beth Torges 2005 A Dissertation Submitted to the Faculty of the DEPARTMENT OF POLITICAL SCIENCE In Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY In the Graduate College THE UNIVERSITY OF ARIZONA 2005 UMI Number: 3158174 Copyright 2005 by Torges, Gwendolyn Beth All rights reserved. INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI UMI Microform 3158174 Copyright 2005 by ProQuest Information and Learning Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest Information and Learning Company 300 North Zeeb Road P.O. Box 1346 Ann Arbor, Ml 48106-1346 2 The University of Arizona 'w Graduate College As members of the Final Examination Committee, we certify that we have read the dissertation prepared by Gwendolyn Beth Torges entitled The Right To Be Left Alone V. The Crime Against Nature: An Analysis of Bowers V. Hardwick and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of Doctor of Philosophy I JL. OS- date Richard' Cortner ihj^ Laura Langer date —# Lytle date date date Final approval and acceptance of this dissertation is contingent upon the candidate's submission of the final copies of the dissertation to the Graduate College. I hereby certify that I have read this dissertation prepared under my direction and recommend that it be accepted as fulfilling the dissertation requirement. Dissertation Director; Richard Cortner date 3 STATEMENT BY THE AUTHOR This dissertation has been submitted in partial fulfillment of requirements for an advanced degree at The University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library. Brief quotations from this dissertation are allowable without special permission, provided that accurate acknowledgment of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder. SIGNED/ 4 TABLE OF CONTENTS LIST OF TABLES 7 ABSTRACT 8 INTRODUCTION 9 CHAPTER 1. WHAT ARE YOU DOING IN MY BEDROOM? THE BACKGROUND OV BOWERS V. HARDWICK 14 Michael Hardwick: An Accidental Activist 15 The Perfect Test Case 22 Taking It To The Federal Courts 28 A Temporary Victory 31 All The Way To The Supreme Court 36 CHAPTER 2. PRIVACY: THE HISTORY OF AN ELUSIVE CONCEPT 39 Privacy: What Is It? 40 General Definitions Of Privacy 41 Sources Of Privacy Law 54 Twentieth-century Statutes 55 Privacy Within The Common Law 57 Judicial Recognition Of Privacy In Torts 61 The Warren And Brandeis Article 63 CHAPTER 3. THE QUEER CAREER OF SODOMY LAW IN THE UNITED STATES 71 Sodomy: The Crime Not Fit To Be Named 78 Authority To Regulate Sexual Practices 88 Three Eras Of Sodomy Law 88 Colonial Era Through 1890s: Protecting Procreation 90 1880s To 1960s: Targeting Groups And Lifestyles 94 1960s To Present: Decriminalization 97 State Courts And Sodomy Law 104 Stories Of Successful Challenges 116 The New Judicial Federalism And State Sodomy Challenges 140 An Explicit Right To Privacy 158 Georgia's Sodomy Law 166 CHAPTER 4. CONSTITUTIONAL PRIVACY PART I: FROM SHORTHAND TO SUBSTANCE 175 There Is No Such Thing As A Right To Privacy 177 The Right To Privacy: Location, Location, Location 183 5 TABLE OF CONTENTS - Continued Origins Of The Fourth Amendment 187 Supreme Court Interpretation of the Fourth Amendment 192 Violation Of The Fourth Amendment: So What? 200 Privacy As A Shorthand For The Fourth Amendment 203 Fourth Amendment Not A Law Of Trespass 210 Privacy: Rewriting The Fourth Amendment? 225 CHAPTER 5. CONSTITUTIONAL PRIVACY PART H: PRIVACY AS EUPHEMISM 235 Foreshadowing The Penumbras 237 Other Unenumerated Rights In The VxQ-Griswold Era 240 A Fundamental Right To Use Contraceptives? 246 Poe Round Two 276 Striking Down a Silly Law: Constitutional Doctrine or General Outrage? 279 The Griswold Opinion: Creating Doctrine Or Finding Consensus? 283 Chasing Away The Shadows Of Lochner 290 Marital Privacy Yes, Penumbras No: The Concurring Opinions 298 'Posi-Griswold Privacy 303 Eisenstadt V. Baird: Extension Of Privacy Via Equal Protection 304 The Right To Privacy And Abortion 311 Roe V. Wade: Abortion, The Right To Privacy And The Doctor-Patient Relationship 318 Griswold and Roe: Vindication of Women's Rights? 334 A Note On Legally Recognized and Protected Relationships 331 Types Of Legal Relationships 334 CHAPTER 6. BOWERS V. HARDWICK at the Supreme Court 337 The Misadventures of Bowers v. Hardwick 339 Federal Decisions On Sodomy And Homosexuality 346 Liberty Or Licentiousness? Brief For Petitioner Bowers 376 Lions And Tigers And Gays, Oh My! 384 There's Not Place Like Home: Brief For Michael Hardwick 385 Ordered Liberty Relies on History and Tradition: The State's Reply to Respondent 395 Friends Of The Court Register Their Opinions 400 One Justice's Search For The Middle Ground 405 Oral Arguments: Talking About The Crime Not Fit To Be Named 419 The Conference 427 It Ain't Over 'Till It's Over 436 Drafted For The Majority, The Whizzer Takes The Handoff. 441 White's Quick And Dirty Sodomy Opinion 446 The Majority Opinion: A Straight And Narrow History 449 6 TABLE OF CONTENTS - Continued Burger's Concurrence: Everything White Said, Plus Homosexuality Is Bad, Very Bad 455 Powell's Concurrence: The Middle Ground Slips To The Right 456 The Dissent: It's All In How You Ask The Question 458 Stevens's Dissent 463 The Continued Misadventures Of Bowers V. Hardwick 465 CHAPTER 7. CONCLUSION 472 Postscript: Seventeen Years After Bowers, a "Seismic Shift" 477 Another "Perfect" Test Case 478 The Facts of Lawrence v. Texas 480 The Procedural Path of Lawrence 485 An Unbiased Judiciary? 489 De Ja Vu All Over Again: Lawrence Goes to the Supreme Court 498 The Supreme Court Overturns Bowers 505 One Nation, After All 508 APPENDIX A. USE OF "PENUMBRA" IN SUPREME COURT JURISPRUDENCE 510 REFERENCES 514 7 LIST OF TABLES TABLE 3.1 Adjectives used in state sodomy statutes to describe sodomy 87 3.2 States that have legislatively decriminalized sodomy 98 3 .3 States that have "specified" their sodomy statutes 100 3.4 Characteristics of sodomy statutes in 1999 102 g ABSTRACT This qualitative case study analyzed the United States Supreme Court's opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), and the historical and legal background leading up to the case. Often characterized as a decision representing an emotional rejection of homosexuality rather than a reasoned application of constitutional privacy precedent, this inquiry sought to identify and document the determinants of the outcome in Bowers, in which a slim majority of the Court ruled that the constitutional right of privacy did not prohibit states from regulating homosexual sodomy. The study demonstrated that although homophobia certainly played a part in the Bowers decision, that the opinion was not necessarily inconsistent with previous privacy decisions such as Griswoldv. Connecticut, 381 U.S. 479 (1965), and Roe v. Wade, 410 U.S. 113 (1973). The author concluded that the dominant insight gleaned from Bowers is that there is no such thing as a constitutionally protected right of privacy, at least not in the way that privacy is conventionally understood. The Bowers opinion illuminates that the Court's privacy jurisprudence has been more about the privileging of certain relationships (such as that between husband and wife or doctor and patient) than it has been about personal privacy. Such relationships serve an important limiting principle. The author concluded that the outcome in Bowers was not the insufficiency of the claim of a right to privacy, but the insufficiency of any limiting principle. The research documented and analyzed history of the two bodies of law most relevant to the Bowers opinion: state law which criminalized sodomy; and constitutional protection of individual privacy. 9 INTRODUCTION In August of 1982, a friend from out of town came to visit Michael Hardwick at the bar where he worked in Atlanta, Georgia. In between serving drinks, Hardwick had a chance to chat and catch up with his friend. As the night had progressed, so had the romantic feelings between the couple, and in the wee hours of August 3, after the bar closed and Hardwick finished his duties, the two left together and went to Hardwick's home, where they retired to Hardwick's bedroom. The encounter became progressively more intimate, and the two engaged in oral sex. At one point, however, Hardwick had the uneasy feeling that he and his friend were being watched. He looked toward the door of his bedroom, which stood slightly ajar, and through it could make out the figure of a uniformed police officer.