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Sodomy, “Privacy,” and Federalism By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, December 17, 2002


Amid great fanfare in the popular press, the Supreme Court of the United States has just agreed to decide a case involving consensual male homosexual conduct – a crime, in one way or another, in some 13 states. Arising from a criminal prosecution in Texas, the case comes 16 years after the Court last looked at the issue.

In 1986, the Supreme Court upheld a Georgia law that outlawed private homosexual conduct (Bowers v. Hardwick). The case involved a gay Atlanta man who was charged for having sexual relations with another man. Although the criminal charge was later dropped, the defendant sued the state claiming a "right of privacy." To understand his claim, it’s necessary first to consider the landmark 1965 case of Griswold v. Connecticut, which involved a challenge to a Connecticut law prohibiting the sale of contraceptives.

In Griswold, it fell to the Court’s liberals, led by Justice William O. Douglas, to invalidate the law. But how? The Douglas majority couldn’t invoke the Bill of Rights because the first nine amendments apply only against conduct by the federal government. Then why not the amorphous "due process" clause of the Fourteenth Amendment, which does apply to conduct by the states? Apparently Douglas and his colleagues understood that the concept of due process is a two-edged sword: If liberals used it to strike down a Connecticut anti-contraceptive law, conservatives could use it to invalidate, say, a New York law banning beggars from the subways.

The tool Douglas and the majority chose to thwart the will of Connecticut voters and their duly elected government was a construct of his own invention: the "right to privacy." Spun out of constitutional thin air, Douglas relied on "emanations" from and "penumbras" of other provisions of the Bill of Rights, as well as some equally ambiguous concepts, to create a hitherto unknown and indefensible federal constitutional "right" to use contraceptives.

Yes, a silly, meddlesome statute existing in only one state was invalidated, but at what cost?

The Griswold decision led to the deaths of literally countless unborn children – because it was that case’s Douglas-created "right of privacy" that served as the precedent for the Supreme Court’s legalization of abortion in Roe v. Wade.

Griswold and Roe led to yet another subversion of a fundamental pillar of American constitutionalism: federalism. An aspect of separation of powers, federalism is strongly protective of individual rights by virtue of its crucial division, as a "check and balance," of federal and state power. As noted, Connecticut’s anti-contraception law had been enacted by that State’s elected representatives on behalf of that State’s voters. So, too, were the anti-abortion laws, enacted by the legislators of all 50 states. Yet under the guise of the so-called right of privacy, in Griswold and Roe the wishes of millions ofAmericans constitutionally entitled to make state law through their elected representatives – no matter how ill-advised, or even irrational – were invalidated by an unelected federal court on the basis of an utterly indefensible invention.

When Bowers v. Hardwick came along, the Supreme Court’s majority wasn’t inclined to substitute its judgment for that of Georgia or the many other states on whose books anti-sodomy laws existed.

In his opinion for the majority upholding the Georgia law, Justice Byron R. White noted that the ruling was not a "judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable." Rather, the majority’s decision simply held – rightly – that under our constitutional system of separation of powers, there was no federal constitutional provision that could invalidate the Georgia law.

So far, so good. But, as I wrote 16 years ago, Bowers was "the right decision for the wrong reason" (Reason Magazine, October 1986).

Justice White’s opinion, as well as a concurring opinion by Chief Justice Warren Burger, went well beyond a rejection of ":privacy" and a defense of federalism. They expressly supported state anti-sodomy laws – laws that are presumptuous, wrongheaded, collectivist, and mostly unenforceable, given that they criminalize private sexual conduct (heterosexual as well as homosexual).

But none of these criticisms of anti-sodomy laws mean that there is, or should be, a remedy lurking somewhere in the federal constitution. There is no such remedy, nor should there be. Not if we are to eschew Douglas’s phony "right of privacy" and put a stop to this whittling away of the fundamental principle of federalism.

Accordingly, two things ought to happen when the Supreme Court considers the constitutionality of the Texas Homosexual Conduct Law. The Court should uphold the offensive Texas law, refusing to endorse, let alone invoke, the ersatz Griswold/Roe "right of privacy." It should also take the occasion to remind litigants, and the public alike, that the principle of federalism bars contrived federal constitutional remedies.

Once the case is over in the Supreme Court, homosexuals and heterosexuals alike – if they cannot obtain recourse through the Texas judicial system, under that State’s constitution – should go into the Texas legislature and get its anti-sodomy law repealed.

While a blatant violation of individual rights such as the Homosexual Conduct Law cries out for remedy, relief should not come at the expense or either perpetuating the Griswold/Roe "right to privacy," or demolishing a fundamental pillar of American constitutionalism. We cannot afford just any port in a storm.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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