Whatever the views of most Americans on homosexuality, they should nevertheless care about prohibitions on gay sex, for those laws reveal the precariousness of more popular freedoms. In that spirit, this Note compares two legal approaches to the right to privacy through the lens of sodomy laws. (1) The battle in federal court over sodomy laws ended in 1986 with the Supreme Court's decision in Bowers v. Hardwick, (2) but state-based challenges are flourishing. Last year, a Minnesota trial court struck down that state's sodomy law in a decision that became the law of the state for want of appeal by the attorney general. (3) Meanwhile, a Louisiana judge threw down the gauntlet to her state's supreme court, daring it to overrule her decision that Louisiana's sodomy law violated the state constitutional right to privacy. (4) Virginia's Supreme Court refused very recently to strike down its state's law. (5) Similar challenges are pending in Texas (6) and Arkansas. (7)
As these cases show, laws against particular sexual practices are open to several legal challenges. Free expression, equal protection, due process, and privacy come most quickly to mind, and it is the last of these that this Note considers. The right to privacy (8) under both the federal and various state constitutions has been advanced as a basis for invalidating sodomy laws with varying degrees of success. Surveying the privacy case law at both the federal and state levels, this Note finds that courts upholding sodomy laws had a particular vision of the right to privacy; one that turned on the nature of the act nominated for protection. But this approach to privacy betrays the basic philosophical premise of a privacy right, that the state should not be able to reach beyond certain boundaries with its power, including the judicial gaze. On the other hand, certain state decisions striking down sodomy laws approached the question of privacy from the standpoint of a content-neutral boundary: It does not matter so much what act you wish to commit in private, but rather whether the act falls on your side of the line, within the private sphere. Rather than evaluate sodomy's place in our cultural tradition, these courts asked only whether the sex act is private, in the sense of being invisible, contained, or harmless. (9)
Looking deeper, this Note finds that the cases with content-neutral approaches to sodomy laws all rested on content-neutral privacy precedents, while the federal right to privacy was born in a murky ad hoc analysis of tradition, where protection existed only for activities the majority already valued. The strong claim of this Note, then, is that Griswold v. Connecticut (10) and its progeny laid the groundwork for Bowers by failing to articulate a philosophically sound understanding of privacy. Meanwhile, a different standard guided states that struck down their sodomy laws. The implications of this comparison extend beyond the narrow question of sodomy laws to substantive privacy more generally. To the extent the right to privacy exists to limit state intrusion on important choices, how you frame the question of privacy dramatically affects both the community's discourse about rights and, often, the ultimate legal outcome of unanticipated questions.
Part I explores the federal approach to privacy jurisprudence. Contrary to popular liberal wisdom, the Court decided Bowers correctly, given how it framed the question of privacy rights in earlier cases. State courts upholding sodomy laws against federal privacy challenges prior to Bowers confirm that it was the most reasonable interpretation of precedent. But the federal approach to privacy, which I call "act-based," is illogical and adverse to the right itself. Part II presents an alternative, the "spatial approach," using three states as examples. All three states share with the Supreme Court an extratextual approach to privacy rights: Their constitutions do not expressly guarantee that right. The biggest difference between the two categories of jurisdictions is their initial approaches to privacy. How the courts originally defined privacy, usually decades earlier, foreshadowed how they would later rule on sodomy. Decisions from other courts striking down sodomy laws had a similar tack. This spatial approach is superior to the act-based approach because it often produces a progressive result in privacy cases, and even where it does not, (11) it yields a more useful discourse about rights in our polity. To the extent that the spatial approach was abandoned years ago in the realm of the criminal law, this Note urges its reappraisal and reincorporation at the federal level. (12)
FEDERAL LAW: THE FUNDAMENTAL ACTS TEST FOR PRIVACY
The Supreme Court's decision not to overturn Georgia's sodomy law as applied to homosexuals created a firestorm of opposition and galvanized the gay rights movement. (13) For many, the decision was plainly wrongheaded, (14) and its tone needlessly hostile. Particularly from the perspective of those outside the legal profession, the case went far beyond the narrow question of privacy rights to the political status (or lack thereof) of homosexuals. Yet for all of the visceral reaction against it, Bowers applied the same test for privacy rights as previous decisions on sexual privacy, and it did so correctly. Accepting arguendo the Court's framing of the question, there should be little doubt it reached the right answer. Those who think otherwise are under the misimpression that precedent in the realm of sexual privacy created content-neutral boundaries. In reality, there is no federal right to privacy that shields us from the gaze of the state, and there has never been one. The Court's sexual privacy jurisprudence has relied on a case-by-case evaluation of the act in question, regardless of whether it can be viewed from the outside or whether it creates third-party harms. In doing so, the Court has asked a majoritarian question of value prior to the question of privacy. Something is private only if the Court (and most of America) does not mind watching.
Bowers v. Hardwick
Simply put, the Supreme Court decided not to strike down sodomy laws as applied to homosexuals because there is no American tradition of accepting homosexual sex. From the very beginning of the opinion, the Supreme Court in Bowers cast the case as a question of the "fundamental rights of homosexuals." (15) In asking repeatedly whether homosexuals in particular have a "fundamental right ... to engage in sodomy," (16) it is no wonder the Court concluded such a claim is "at best, facetious." (17) The Court, in the following paragraph, set out the test for determining whether a given act is fundamental and falls within the constitutional boundaries of the right to privacy:
Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection.... [T]his category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if [they] were sacrificed" ... [and] those liberties that are "deeply rooted in this Nation's history and tradition." (18) In other words, the test for whether homosexual sodomy is protected by a constitutional right to privacy requires an evaluation of the traditional status of homosexual sex per se. And, if we ask whether there has been a tradition of treating homosexuals as equal, much less accepting sodomy as normal, healthy sexual activity, there is little doubt that the answer to that question is no. (19) The extent of the right to privacy depends on whether the act you wish to commit is fundamental, meaning "traditional," necessary for "ordered liberty," or "deeply rooted" in history--valued by the majority of people in our nation over time. It relies on an act-based conception of privacy and ignores spatial boundaries entirely. Of course, by these terms, there is no privacy right to homosexual sodomy.
One might object, as Justice Blackmun did in dissent, that the law at issue applied equally to heterosexual sodomy. (20) This is, of course, true, but as the privacy question has been framed in terms of fundamental acts, the Court could easily have reached the conclusion that there is no fundamental right to heterosexual oral or anal sex. (21) Scientific research suggested a majority of Americans engaged in oral sex, (22) but the behavior remained taboo, even for straight persons. (23) Bowers was not the first decision to declare that "only personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty' are included in this guarantee of personal privacy." (24) Nor was it the only case to rely on history to evaluate whether a certain activity falls within the right to privacy. (25) The Court's reliance on history put it on precarious ground since the history of attitudes toward homosexuals is, at least, contested, (26) but as I explain next, the methodology of Bowers followed precedent.
The Ambiguous Triad: Griswold, Eisenstadt, and Roe
Three cases dealing with sexual privacy paved the road for Bowers by relying on a certain understanding of privacy: It is a right that protects those acts that are fundamental to personhood, as defined by history. Although the spatial theories of privacy played cameo roles, the federal sexual triumvirate ultimately rejected them.
Griswold v. Connecticut, the first Supreme Court case to recognize a federal right to substantive privacy, struck down a state law prohibiting the use of contraceptive devices. (27) The basis for the right, however, was unclear from the opinion. In the abstract, the right to privacy is a freedom from state action...