Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1992 Beyond the Privacy Principle Kendall Thomas Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Law and Economics Commons Recommended Citation Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431 (1992). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/219 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. BEYOND THE PRIVACY PRINCIPLEt Kendall Thomas* The law may not be able to make a man love me, but at least it can keep him from lynching me. -Martin Luther King, Jr.1 INTRODUCTION In Bowers v. Hardwick,2 the U.S. Supreme Court was asked to ad- dress the constitutionality of a Georgia criminal statute prohibiting cer- tain private sexual practices by consenting adults.3 The Georgia t Copyright © 1992 by Kendall Thomas. * Professor of Law, Columbia University in the City of New York. J.D. Yale University 1982, B.A. Yale University 1978. I would like to thank the participants in the faculty workshops of the University of California at Los Angeles School of Law, the Georgetown University Law Center, the Indiana University at Bloomington School of Law, and the Western New England College School of Law, as well as Bruce Ackerman, Mark Barenberg, Vivian Berger, Gregg Bordowitz, Richard Briffault, Gary Cohen, Jean Cohen, Blake Cornish, Kimberl6 Williams Crenshaw, Martha Fineman, R. Kent Greenawalt, Lynne Henderson, John Leubsdorf, James Liebman, Subha Narasimhan, Jane Spinak, and Marcia Sells for their helpful comments on earlier drafts of this Article. I also am indebted to Daniel Alter, Cathleen Price, and Paula Puryear for valuable research assistance. I gratefully acknowledge the support provided by the Class of 1932 Law Research/Writing Fund and Columbia Law School Alumni. 1. Quoted in Alan F. Westin & Barry Mahoney, The Trial of Martin Luther King 41 (1974). 2. 478 U.S. 186 (1986). 3. The Georgia statute against which the federal constitutional claim was counterposed read, in pertinent part: (a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. Ga. Code Ann. § 16-6-2 (Michie 1985). It bears remarking that the statute under which Hardwick was arrested and charged casts a very broad net. By its terms it imposes a blanket prohibition on the stated conduct, making no distinction whatsoever between men or women, homosexuals, bisexuals or heterosexuals, married or unmarried persons. See Ga. Code Ann. § 16-6-2 (Michie 1985). The Supreme Court's decision to consider only the question of the law's constitutionality as applied to consensual activity of adults of the same sex may be explained in part by the treatment of the facial attack in the lower courts. Indeed, the trial court in Bowers v. Hardwick refused to grant standing to John and Mary Doe, a married couple who joined Michael Hardwick in challenging the constitutionality of the Georgia statute. The district court's dismissal of the Does' claim for lack of standing was affirmed by the Court of Appeals. See Hardwick v. Bowers, 760 F.2d 1202, 1206-07 (1 th Cir.), cert. granted, 474 U.S. 943 (1985), rev'd on other grounds, 478 U.S. 186 (1986). Ostensibly relying on this dismissal of the Does as parties to the case, the 1431 1432 COLUMBIA LAW REVIEW [Vol. 92:1431 citizens who brought the suit sought a judgment regarding the consti- tutionality of the statute on its face, but the Court resolutely avoided consideration of that issue. The Court took the view that the only fed- eral question properly before it was the constitutional validity of the law as applied to private, sexual activity by consenting adults of the same gender, or what it called "homosexual sodomy."'4 Having thus Supreme Court restricted itself to consideration of the constitutionality of the Georgia statute "as applied to consensual homosexual sodomy," pointedly noting that it was "express[ing] no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy." 478 U.S. at 188 n.1. This disclaimer aside, one may well ask whether the Hardwick Court's statement of the issue is as restricted and respectful of the case's actual posture as Justice White seemed to believe. Hardwick formally asserted in his complaint that he had engaged and intended to continue to engage in the conduct prohibited by the state. Although Hardwick was identified in the complaint as a "practicing homosexual," the complaint did not specify whether Hardwick's contemplated (or for that matter past) violations of the statute would take place with women or other men. SeeJoint Appendix at 3, Bowers v. Hardwick, 478 U.S. 186 (1986) (No. 85-140). This means that the trial court's refusal to grant standing to the Does did not necessarily foreclose the Supreme Court from addressing the constitutionality of the Georgia statute as applied to consensual sexual activity across gender lines. The inclusion of the Does as parties to the case may plausibly be explained as an effort by Hardwick's counsel to insure that the facial validity of the statute would be addressed. However, what has been said about the terms of Hardwick's complaint demonstrates that the question of facial validity did not necessarily disappear from the case when the Does were dismissed. In point of fact, then, there was nothing in the history of Hardwick to warrant the Court's insistence that "[t]he only claim properly before the Court... is Hardwick's challenge to the Georgia statute as applied to consensual homosexual sodomy." 478 U.S. at 188 n.1 (emphasis added). Thus, the Court could have considered the facial constitutionality of the statute without violating its prudential canons of self-restraint. To my mind, the Court's refusal to do so can be best explained as a reflection of whatJustice Blackmun called its "almost obsessive focus on homosexual activity." Id. at 200 (Blackmun, J., dissenting). Taken together, the terms of Hardwick's complaint and the generalized language of the statute itself make it difficult to avoid the conclusion that the Court's decision to limit itself to a judgment regarding the constitutionality of the Georgia statute "as applied" was driven more by political, than by prudential, concerns. In my view, neither the framing of the issue in Hardwick nor its disposition can be understood apart from the extra-legal (which is to say, political) considerations that inform them. Given this background, a critical account of Bowers v. Hardwick ought not lose sight of the political genealogy of the case and its implications for analysis of the constitutional interests for which Michael Hardwick sought the Court's protection. 4. 478 U.S. at 188 n.2. This is an appropriate point at which to note the problematic persistence in our constitutional discourse of the word "sodomy," whether used alone, or conjoined (as in Hardwick) with the medical term "homosexual." As concepts and images, the terms' presence in the Court's opinion in Bowers v. Hardwick reflects and perpetuates the usually unacknowledged parasitic relationship between secular constitutional discourse on the one hand, and other normative and discursive systems such as religion and medicine on the other. A knowledge of the sedimented histories of the terms "sodomy" and "homosexual" is absolutely indispensable if we are to understand the regnant biases that informed the Hardwick decision. The word "sodomy" comes to us, of course, from a Biblical story that appears in the Book of Genesis. According to the Old Testament account, because its "sin [was] very 19921 BEYOND PRIVACY 1433 limited the scope of its constitutional inquiry, the Court refused to in- grievous," the city of Sodom was destroyed by "brimstone and fire from the Lord out of heaven." Genesis 18:20; 19:24 (King James). Over time, the destruction of Sodom came to be attributed to sexual (mis)conduct between and among those of the same gender. This understanding led to the identification of the "sodomite" with the figure of the "homosexual." See John McNeil, The Church and the Homosexual 42 (3d ed. 1988). Some modem Biblical scholars have argued that the (homo)sexualization of the Sodom story reflects a deep misunderstanding of the Old Testament account. In their view, the sin for which the inhabitants of Sodom were punished was not sexual (mis)conduct but a sadistic lack of hospitality, which violated customary law. See id. at 46. Other scholars have contended that the sexual theme of the Genesis legend is clear: Sodom incurred God's wrath because the "men of the City ... both old and young," Genesis 19:4-9 (King James), attempted to gang-rape two (male) angels who sought refuge in the house of Lot. See McNeil, supra, and sources cited therein. Although these two readings of the story are not mutually exclusive, what is most interesting about the history of its interpretation is that (1) the violation of hospitality theme has been thoroughly overshadowed by the sexual one, and (2) the terms associated with this understanding of the story have been uncritically imported into our secular law. Its use, in short, embodies less an effort at impartial description than an implicit moral judgment.