Petitioners Brief — Bowers v. Hardwick

> | Supreme Court, U.S.

No. 85-140 FILED

In The DEC 1% 1985

Supreme Court of the United States, - soanor,

October Term, 1985 CLERK

ra’

MICHAEL J. BOWERS,

ATTORNEY GENERAL OF GEORGIA,

Petitioner,

Ve

MICHAEL HARDWICK, AND

JOHN AND MARY DOE,

Respondents.

oO

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ra’

BRIEF OF PETITIONER MICHAEL J. BOWERS

ATTORNEY GENERAL OF GEORGIA

—— —O —

MicHakE. J. Bowers

Attorney General

Marion O. Gorpon

First Assistant

Attorney General

=

BEST AVAILABLE COPY

Dary. A. Rosrnson

Senior Assistant

Attorney General

*MicHaet EK. Hosss

Senior Assistant

Attorney General

Please Serve:

MicuaEL EK. Hosss

132 State Judicial Bldg.

40 Capitol Square, S. W.

Atlanta, Georgia 30334

(404) 656-3356

*COUNSEL OF RECORD

December 19, 1985

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

[. Whether the Court of Appeals erred in concluding

IT.

that Doe v. Commonwealth’s Attorney for the City of

Richmond, 425 U.S. 901 (1976), aff’g 403 F.Supp.

1199 (K.D.Va. 1975), which upheld the constitutional-

ity of Virginia’s sodomy statute, does not constitute

precedent binding upon lower federal courts.

Whether the Court of Appeals erred in concluding that

Georgia’s sodomy statute infringes upon the funda-

mental rights of homosexuals and in requiring the

State of Georgia to demonstrate a compelling state

interest in order to support the constitutionality of

the statute.

il

TABLE OF CONTENTS

Page

I

ED CE DETIII ects iv

OP rare

PUTT. cccsssscsilasiitsandinieee 2

Constitutional and Statutory Provisions Involved... 2

a 8) a ee

Summary of the Argument — ee 4

BO Nae Ts ee

I. The Court below erroneously concluded that Doe

v. Commonwealth’s Attorney does not consti-

tute Supreme Court precedent binding upon low-

or federal CemetS .nnccninncseee 6

A. Lack of standing was not an issue presented

or necessarily decided in Doe v. Common-

| LE no 8

Bb. There have been no subsequent doctrinal de-

velopments since this Court’s summary af-

SPGRRSS BB BOO cccnticcimeaeen 11

Il. The court below erred in concluding that Georg-

:a’s sodomy statute infringes upon the funda.

mental rights of homosexuals and in requiring

the State of Georgia to demonstrate a compelling

state interest in order to support the constitu-

tionality of Georgia’s statute .. 18

A. There is no fundamental right of privacy to

engage in homosexual sodomy ................. 18

B. Homosexual sodomy is not protected by the

home

26

ili

TABLE OF CONTENTS—Continued

Page

C. Homosexual sodomy is not protected by a con-

stitutional right of association... 29

D. Considerations of federalism: Traditional

morality and other legitimate state interests. 34

Conclusion ................ 2 a i 39

iv

Bre TABLE OF AUTHORITIES

Page

CasEs :

Baker v. Wade, 769 F.2d 289 reh’g denied, 774

F.2d 1287 (5th Cir. 1985) (en bane) oo. 11, 17, 34, 36

Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980) ........ 16

Bellotti v. Baird, 443 U.S. 622 (1979) oe 19

Berman v. Parker, 348 U.S. 26 (1954) oo. 35

Bob Jones University v. United States, 461 U.S.

574 (1983). ............ ERA E SS ae a RS

Boutilier v. Immigration and Naturalization Ser-

OP, TS WO ee CD vce 36

Brandenburg v. Ohio, 395 U.S. 444 (1969) oo. 27

California v. LaRue, 409 U.S. 109 (1972) oo 27

Carey v. Population Services International, 431

Us. 8 O97) 11, 13, 14, 16, 17, 19, 31

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983) a Ea 19

Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d

Me I TR a IE Ie ie Et Uc E 23

Conklin v. State, 254 Ga. 558, — S.B.2d — (1985).......... 37

Doe v. Commonwealth’s Attorney for the City of

Richmond, 403 F.Supp. 1199 (E.D.Va. 1975),

ig & fit & Ff) |) eee Passim

Doe v. Duling, 603 F.Supp. 960 (E.D.Va. 1985) oo. 17

Doe v. Hodgson, 478 F.2d 537 (2nd Cir. 1975) cert.

denied, 414 U.S. 1096 (1973) occ a

Dronenberg v. Zech, 741 F.2d 1388 (D.C.Cir.

DUUIUEED - csstbidi anicstibeinsehiladindeiipsieibilbcdaibinhinbelediidibamtanepicinace a. LO, 17, 34, 36

Eisenstadt v. Baird, 405 U.S. 488 (1972). 19, 34

Gilmore v. City of Montgomery, 417 U.S. 556 (1974) 30

Vv

TABLE OF AUTHORITIES—Continued

Page

Griswold v. Connecticut, 381 U.S. 479 (1965)... 6, 17,19

24, 25, 38

Hardwick v. Bowers, 760 F.2d 1202 (11th Cir.

| ee ee ow .Passim

Henderson v. Cronvich, 402 F.2d 763 (5th Cir. 1968) 13

Hicks v. Miranda, 422 U.S. 332 (1975) WW. 4, 7,10, 12,17

Hutto v. Davis, 454 U.S. 370 (1982) 10

Illinois State Bd. of Elections v. Socialist Work-

ke ORI eB se) | 8,9

Jacobellis v. Ohio, 378 U.S. 184 (1964) neces nnenennce 35

Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983),

aff’d, — U.S. —, 105 S.Ct. 2479 (1985) eee 12

Lecates v. Justice of the Peace Court No. 4, 637

Eee 12

Lochner v. New York, 198 U.S. 45 (1905) ceases 39

Loving v. Virginia, 388 U.S. 1 (1967) nanan nae ceeeenenesseeeceese . 19

Mandel v. Bradley, 432 USS. 173 (1977) eceeccceececeesesenecsseeneeeenn 8,9

Maynard v. Hill, 125 U.S. 190 (1888) ne eneeneeeeeeren 25

McDaniel v. Sanchez, 452 U.S. 130 (1981) 14

Metromedia, Inc. v. San Diego, 453 U.S. 490

(RGR ORS Se ae 10

Miller v. California, 413 U.S. 15 (1973) 0. eal 27

Moore v. City of East Cleveland, 481 U.S. 494

TTI T sishos ail cas hliceiecbanienintehainmaainneliais 19, 21, 29, 30, 31, 38

Near v. Minnesota, 283 U.S. GOT (LORD) necceecceeccceeeceseseenseeeeee 34

New York v. ee? — U.S. —, 104 S.Ct. 2332

(1984) . dani . one 11, 15, 16

Noble State Bank v. Haskell, 219 U.S. 104 (1910) ciel 34

vi

TABLE OF AUTHORITIES—Continued

Page

O’Shea v. Littleton, 414 U.S. 488 (1974) oo i)

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959)

Palko v. Connecticut, 302 U.S. 319 (1937) oo. 5, 19

Paris Adult Theater I v. Slaton, 413 U.S. 49

fe Smee ee ae ee Oa eT 5, 28, 34, 35, 36

Payton v. New York, 445 U.S. 573 (1980) 20000... 22, 26, 28

People v. Onofre, 51 N.Y. 2d 476 (1980) oo 23

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 19

Poe v. Ullman, 367 U.S. 497 (1961) oo 9, 26, 28

Potter v. Murray City, 760 F.2d 1065 (10th Cir.

| ae ae ne re en ee 33

Reynolds v. United States, 98 U.S. 145 (1878) 32,38

Rizzo v. Goode, 423 U.S. 362 (1976) Scat bat i)

Roberts v. United States Jaycees, — U.S. —, 104

S.Ct. 3244 (1984) .......... re ee ve a ee Fe 30, 31, 33

Roe v. Wade, 410 U.S. 113 (1973) onc ccccesseeeesee 18, 19, 28

Rose v. Locke, 423 U.S. 48 (1975) neccccccc cc ccscceeeecsseesee dinalatl 15, 24

Stanley v. Georgia, 394 U.S. 557 (1969) oo. 26, 27, 28

Thurston Motor Lines v. Jordan K. Rand, Lid..

ee I Te CD lecitcteiaeniicinteeninnicte Adiiiiaaniad 12

United States v. O’Brien, 391 U.S. 367 (1968) oo. «27

Village of Belle Terre v. Boraas, 16 U.S. 1 (1974)..29, 30, 34

Wamwright v. Witt, — U.S. —, 105 S.Ct. 844

Shiai Near tala lialdettaaih lb lelcninieesinbeenbaiiedoboke 14

Warth v. Selden, 422 U.S. 490 (1975) cece cccccccssssssssssseseseese i)

Washington v. Confederated Bands and Tribes,

Serena ae oO nN ero eee 8

Webster v. Fall, 266 U.S. 507 (1925) oo.

Vil

TABLE OF AUTHORITIES—Continued

Page

Witherspoon v. Illinois, 391 U.S. 510 (1968) ; 14

Zablocki v. Redhail, 434 U.S. 3874 (1978)..19, 25, 31, 33, 35, 38

CONSTITUTIONAL PROVISIONS:

U.S. Constitution :

| aan cinisieiaiemaainaaieena Toe ae

Amend. I . iocceeisidiods 8, 18, 26, 27, 32

Amend. [V ................. 5 SH ek a " ae

Amend. VY ' ee eee a

Cee aioe ae | & * aig 39

Amend. XTV _.. ian - »§ §§ & FT

STATUTES:

O.C.G.A. § 16-6-2(a) (Michie 1984) nn cseeesneccnneeeessnseee ey

O.C.G.A. § 16-6-18 (Michie 1984) 0 csssesesee andi 13

OTHER WoRKS:

Aristotle, Nicomachean Ethics (Oxford trans.) ....... awe OO

Babb, ‘‘Sexually Transmitted Infections in Homo-

sexual Men,’’ Post Grad Med. J., No. 3 at 215 (1979) 37

Bailey, D., Homosexuality in the Western Chris-

Re Sa TE AE =

Bell, A. & M. Weinberg, Homosexuality: A Study

of Diversity Among Men and Women (1978)

Blackstone, Commentries, Book 4 (1765-69) 000000... ,

C ameron, ‘*Report on Homosexuality and Mar-

der,’’ Institute for the Scientific Ins restigation

of Sexuality | ee siialeacbuambtidscchseteaammnatataie maaan 37

TABLE OF AUTHORITIES—Continued

Coke, Third Part of The Institutes of the Laws of

England (Brooke ed. 1797) ccc ccccssesssesenenen ,

Corey & Holmes, ‘*Sexual Transmission of Hepa-

titis A in Homosexual Men,’’ 302 New Eng. J.

I a le

1 Corinthians 6:9, 10 ....... ee aS eT RN a TR

Hamburger, Morals and Law, The Growth of

Aristotle’s Legal Theory (1951) ..................... densedinadi

Hand, The Spirit of Liberty (1952) ccc

Handsfield, ‘‘Sexually Transmitted Diseases in

Homosexual Men,*’ 71 Am. J. Pub. Health 989

Rie eR I AT ope ene el

Jay, K. and A. Young, The Gay Report (1979) .

Kant, [., Lectures on Ethies (L. Infield trans. 1963) .

Landesman, et al, ‘‘Special Report: The AIDS

vw ** 312 New ie J. Med. 521 ssh

seamen

Lange, et al, siieasiaiiianlits | Isolation Irom

Healthy Homosexual Men,’’ 252 J.A.M.A.

1908 (1984) 200... Jalitcedieneealebdianstiiesdiiedlinad cad ee ae

lS) eS PI ee OE Ee CL Ee

Lorence, J. ‘‘Sodomy Laws, Right of Privacy and

the Courts,’’ printed in Magnusen, dre Gay

Rights Right? A ‘ial on Homosexuality and

ie

Plato, Laws, 636 ¢ ........... AIIM i CLR aa I DY

Pound, R., The Development of Constitutional

Guarantees of Liberty (1957) it REO

Reilly, R., ‘‘Homosexual Rights and The Founda-

tions of Human Rights,’’ reprinted in Rueda,

ix

TABLE OF AUTHORITIES—Continued

Page

The Homosexual Network (1982) from ‘‘Fam-

ily Policy Insights’’ (Dee. 10, 1081) 38

Romans 1:26, 27 . on 21

Wellington, Common Law Rules and Constitw

tional Double Standards: Some Notes on Ad

judication, 83 Yale L.J. 221 (1973) 93

William, ‘‘The Sexual Transmiss‘on of Parasitie

Infections in Gay Men,’’ 5 J. Homosexuality,

291 (1980) 37

No. 85-140

In The

Supreme Court of the United States

October Term, 1985

,

MICHAEL J. BOWERS,

ATTORNEY GENERAL OF GEORGIA,

Petitioner,

Vv.

MICHAEL HARDWICK, AND

JOHN AND MARY DOE,

Respondents.

o—

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ray

BRIEF OF PETITIONER MICHAEL J. BOWERS

ATTORNEY GENERAL OF GEORGIA

sy

Vv

OPINION BELOW ,

The opinion of the Court of Appeals for the Eleventh

Cireuit which declared that this Court’s summary affirm-

ance in Doe v. Commonwealth’s Attorney for the City of

Richmond, 403 F.Supp. 1199 (E.D.Va. 1975), aff’d, 425

U.S. 90 (1976), and which concluded that Georgia’s sodomy

statute infringes upon Respondent Hardwick’s constitu-

tional right of privacy, appears in the Appendix to the

Petition for the Writ of Certiorari [hereinafter Cert.

App.] at 5 through 35 (Cert. App. 5-35), and is reported

at 760 F.2d 1202 (11th Cir. 1985).

The opinion of the District Court for the Northern

District of Georgia, which upheld the constitutionality of

]

Georgia’s sodomy statute, and which appears in the Joint

Appendix at 17 through 19, is not reported.

o

JURISDICTION

The judgment of the Court of Appeals for the

Eleventh Cireuit was entered on May 21, 1985. A timely

suggestion for rehearing en bane was filed on May 30,

1985, and denied on June 13, 1985. The petition for a writ

of certiorari was filed on July 25, 1985, and the writ was

granted on November 4, 1985. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1) (1982).

STATUTORY PROVISION INVOLVED

Official Code of Georgia Annotated, § 16-6-2(a)

1Y¥s4):

\ person commits the offense of sodomy when he

performs or submits to any sexual aci involving the

ex organs of one person and the mouth or anus of

anotoer.

\ STATEMENT OF THE CASE

Respondents, Michael Hardwick and John and Mary

Doe, filed their complaint in this case on February 14,

1983. Hardwick alleged that he is a practicing homesexual

who regularly engages in private homosexual souomy, and

that he will do so in the future. The Does alleged that they

are lawfully married and have had the ambition to engage

in activities proscribed by the Georgia sodomy statute,

0.C.G.A. § 16-6-2 (1984). The Respondents, in seeking

declaratory and injunctive relief, claimed that the statute

violated their right of privacy under the First, Third,

Fourth, Fifth, Ninth, and Fourteenth Amendments to the

United States Constitution, and that it violated their

rights to due process of law, was unconstitutionally over-

broad, and denied them their freedom of expression and

association. (Joint Appendix at p. 6).

Each Defendant, including Petitioner Bowers, filed

separate motions to dismiss. The district court, in an

order entered by the Honorable Robert H. Hall, dismissed

the complaint as to the Does on the basis of their lack

of standing. As to Hardwick, the complaint was dismissed

on the ground that all of his constitutional claims had been

rejected by this court in Doe v. Commonwealth’s Attorney

for the City of Richmond, 425 U.S. 90 (1976), aff’g 403

F.Supp. 1199 (E.D.Va. 1975). (Joint Appendix at p. 19).

Respondents appealed Judge Hall’s decision to the

United States Court of Appeals for the Eleventh Circuit

and on May 21, 1985, in an opinion authored by the Honor-

able Frank M. Johnson, Circuit Judge, a majority of the

panel found (1) that Hardwick possessed sufficient stand-

ing to pursue the action, while the Does lacked standing;

(2) that this Court’s summary affirmance in Doe v. Com-

monwealth’s Attorney, supra, is not binding precedent ;

and (3) that Georgia’s sodomy statute infringes upon

Hardwick’s fundamental right of privacy and association

and consequently the State of Georgia would be required

4

upon the trial of this case to establish the existence of a

compelling state interest in proscribing consensual homo-

sexual sodomy in order to validate the statute. (Cert.

App. at 12-26).

The Honorable Phyllis A. Kravitch, Circuit Judge,

filed a separate opinion concurring in part with the ma-

jority panel decision but dissenting from the majority

conclusion that Doe v. Commonwealth’s Attorney is not

binding on lower federal courts. (Cert. App. at 26-35).

On May 30, 1985, a suggestion for rehearing en banc

was filed on behalf of Petitioner Bowers and was denied on

June 13, 1985.

The Petition for a Writ of Certiorari was filed with

this Court by Petitioner Bowers on July 25, 1985, and the

writ was granted on November 4, 1985.

Ly

VV

SUMMARY OF ARGUMENT

The Court of Appeals for the Eleventh Circuit has

failed to follow binding precedent of this Court in the

case of Doe v. Commonwealth’s Attorney. While the Court

of Appeals recognized that a summary affirmance by this

Court has binding precedential effect, Hicks v. Miranda,

422 U.S. 332, 344.45 (1975), it erroneously concluded that

Doe is not binding since this Court could have approved the

result reached by the District Court in Doe without con-

sidering the substantive constitutional issues because the

Plaintiffs in Doe were perceived by the Court of Appeals

as lacking sufficient standing to sue. Hardwick v. Bowers,

760 F.2d 1202, 1207 (11th Cir. 1985) (Cert. App. at 14).

In addition, the Court below erroneously concluded

that there had been subsequent doctrinal developments

which would release lower federal courts from the binding

effects of Doe, permitting the lower courts to reach their

own conclusions as to whether a fundamental right to en-

gage in homosexual sodomy exists under the constitution.

In arriving at these conclusions, the court below made

unwarranted assumptions and misconstrued prior prece-

dents of this Court relating to the efficacy of its summary

decisions.

Moreover, the court below seriously erred in judicially

creating a fundamental right of privacy to engage in homo-

sexual sodomy, and by finding constitutional protection

for this perceived right. Furthermore, the court below er-

roneously concluded that the act of homosexual sodomy

proscribed by Georgia statute violates Hardwick’s right

of intimate association protected by the Ninth Amend-

ment and perceptions of fundamental fairness embodied

in the due process clause of the Fourteenth Amendment.

These erroneous conclusions are unsupported by any pre-

vious decisions of this Court, the textual content of the

Constitution itself, or any adherence to the concept that

such rights that can be deemed fundamental must be

rooted in traditional values and encompass only those

rights ‘‘implicit in the concept of ordered liberty.’’ Paris

Adult Theatre I v. Slaton, 413 U.S. 49, 65 (1973); Palko v.

Connecticut, 302 U.S. 319, 325 (1937).

>.

Vv

ARGUMENT

I. The Court Below Erroneously Concluded That

Doe v. Commonwealth’s Attorney Does Not Con-

stitute Supreme Court Precedent Binding Upon

Lower Federal Courts.

In Doe v. Commonwealth’s Attorney for the City of

Richmond, 403 F.Supp. 1199 (E.D.Va. 1975), a three judge

district court upheld the constitutionality of Virginia’s

sodomy statute against claims that the statute violated due

process of law, freedom of expression, and the right of

privacy as it related to homosexual conduct and concluded

in plain and unequivocal language that the right of privacy

recognized in Griswold v. Connecticut, 381 U.S. 479 (1965),

and its progeny does not extend to private consensual

homosexual sodomy. The district court further found that

the State has a legitimate interest in proscribing such

conduct, rationally related to the suppression of moral

delinquency and crime. On appeal, the district court’s de-

cision was summarily affirmed by this Court without

opinion. 425 U.S. 901 (1976).

Petitioner Bowers, in the case sub judice, moved the

United States District Court for the Northern District of

Georgia to dismiss the present action brought by Michael

Hardwick and John and Mary Doe, based upon this

Court’s summary affirmance in Doe v. Commonwealth’s

Attorney. The District Court concluded that Doe was

binding precedent on the issue and rendered judgment ae-

cordingly. (Joint Appendix at 18).

The Court of Appeals for the Eleventh Circuit, how-

ever, determined that it was free to draw its own conclu-

sions as to whether a right of privacy exists which would

protect Michael Hardwick and others who practiced con-

sensual sodomy from state interference, and held that Doe

was not binding since this Court ‘‘.. . could have approved

the result reached by the District Court without address-

ing the constitutional issues because the Plaintiffs plainly

lacked standing to sue.’’ Hlardwick, 760 F.2d at 207 (Cert.

App. at 14).

The Court of Appeals further found that even if this

Court had addressed the merits at issue in Doe, subse-

quent ‘‘doctrinal developments’’ have authorized inde-

pendent exercise of judgment by the lower courts in this

area.

It is urged that the Court below seriously erred in

reaching these conclusions in order to evade Doe v. Com-

monwealth’s Attorney.

Unquestionably, a summary affirmance by this Court

is a decision on the merits and therefore a binding pre-

ecedent. As Justice Brennen once observed, ‘‘votes to af-

firm summarily are votes on the merits of the case... .’’

Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959),

quoted in Hicks v. Miranda, 422 U.S. 332, 344 (1975). In

Hicks this Court went on to say:

[T]he lower courts are bound by summary decisions

by this court ‘until such time as the court informs

[them] that [they] are not.’ [Cit. omitted.]

Id. at 344-45. In a later decision, this Court instructed:

Summary affirmances and dismissal for want of a

substantial federal question without doubt reject the

specific challenges presented in the statement of juris.

diction and do leave undisturbed the judgment ap-

pealed from. They do prevent the lower courts from

8

coming to opposite conclusions on the precise issues

presented and necessarily decided by those actions.

Mandel v. Bradley, 432 U.S. 173, 176 (1977). See also

Illinois State Bd. of Elections v. Socialist Workers Party,

440 U.S. 173, 183 (1979); Washington v. Confederated

Bands and Tribes, 439 U.S. 463, 476 n. 20 (1970).

A. Standing Was Not An Issue Presented Or

Necessarily Decided in Doe v. Common-

wealth’s Attorney.

As mentioned in Circuit Judge Kravitch’s dissent in

the court below, the jurisdictional statement before this

Court in Doe v. Commonwealth’s Attorney mentioned only

the substantive constitutional issues involved and decided

by the United States District Court for the Eastern Dis-

trict of Virginia.' Neither the decision by the district court

nor the jurisdictiona! statement before this Court even al-

luded to standing as an issue, indicating that the Doe plain-

tiffs had been found to have sufficient standing. Thus, it

is urged that the standing issue raised by the Court of

Appeals below would have been at the very most a question

which ‘‘merely lurk[ed] in the record,’’ Webster v. Fall,

266 U.S. 507, 511 (1925), and which would not have been

resolved by this Court. Illinois State Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173, 183 (1979). Thus,

the Court of Appeals, as did Professor Tribe in his trea-

'The question presented in Doe’s jurisdictional statement

was “whether Virginia Code Section 18.1-212, as applied to sex-

ual activity between consenting adults in private, violated appel-

lants’ constitutional rights to privacy, to due process of law, and

to the equal protection of the iaws, under the First, Fourth, Fifth,

Ninth and Fourteenth Amendments to the Constitution.” Juris-

dictional Statement, Doe v. Commonwealth’s Attorney, Sup. Ct.

Docket # 75-896, October Term 1975.

9

tise, American Constitutional Law, at 943 (1978), errone-

ously inferred the resolution of an issue which was neither

‘‘presented’’ nor ‘‘necessarily decided’’ by this Court.

Mandel v. Bradley, 432 U.S. 173, 176 (1977). Such an in-

ference drawn by the court below was neither warranted

nor permitted. Illinois State Bd. of Elections, 440 U.S. at

183.

Judge Kravitch’s dissent also observed that if this

Court had decided Doe v. Commonwealth’s Attorney based

upon a purported lack of standing of the Plaintiffs, this

Court would have dismissed the appeal rather than render-

ing a summary decision on the merits, ‘‘whether the lack

of standing was the result of Article III case-or-controver-

sy considerations, or of purely prudential concerns.’’

Hardwick, 760 F.2d at 1214 (Kravitch, J., dissenting)

(Cert. App. at 30). See Warth v. Seldin, 422 U.S. 490, 498

(1975) (‘‘In its constitutional dimension, standing imports

justiciability: whether the Plaintiff has made out a ‘case

or controversy’ between himself and the Defendant within

the meaning of Art. ITI. This is the threshold question

in every federal case, determining the power of the Court

to entertain the suit.’’); Poe v. Ullman, 367 U.S. 497, 509

(1961) (dismissal of appeal because of prudential standing

considerations ).

The majority opinion in the court below attempted to

show that this Court does not always dismiss appeals

where there is a lack of standing by citing Rizzo v. Goode,

423 U.S. 362 (1976), and O’Shea v. Littleton, 414 U.S. 488

(1974). In both of these cases, however, this Court re-

versed lower appellate decisions which had erroneously

found standing to exist. In such circumstances, the dis-

missal of an appeal to this Court would have presump-

10

tively left the erroneous decision in effect absent some

direction by this Court requiring the lower court to vacate

its judgment. No case was cited by the majority below in

which this Court affirmed a lower court’s dismissal on the

merits, basing its affirmance upon finding of a lack of

standing of the plaintiffs to sue.

While the majority of the court below also cited

Metromedia, Inc. v. San Diego, 453 U.S. 490, 499 (1981),

for the proposition that summary dispositions by this

Court extend only to ‘‘the precise issues presented and

necessarily decided by those actions,’’ the Court specifical-

ly noted in that case that the Supreme Court of California

had been ‘‘quite right in relying on our summary decisions

as authority for sustaining the .. . ordinance against First

Amendment attack.’’ Jd. at 500, citing Hicks v. Meranda,

supra. The Court went on to note that such summary dis-

positions certainly do not have the same authority in

this Court as do decisions after plenary consideration.

453 U.S. at 400. This observation indicates clearly, how-

ever, that lower courts may not look upon such summary

decisions in the same manner as this Court. They are

and should be bound by those decisions until the Court in-

forms them that they are not. Hicks v. Miranda 422 U.S.

at 345-46, quoting Doe v. Hodgson, 478 F.2d 537, 539 (2nd

Cir. 1973), cert. denied, 414 U.S. 1096 (1973). It is sug-

gested that if there is to be stability in the federal judi-

cial system, doubts as to the binding effect of this Court’s

summary decisions should be resolved in favor of their

continuing efficacy. See Hutto v. Davis, 454 U.S. 370, 375

(1982). As Cireuit Judge Bork indicated in Dronenberg v.

Zech, 741 F.2d 1388 (D.C.Cir. 1984), it certainly would be

unwise for a lower federal court to distinguish a precedent

11

of the Supreme Court ‘‘on the specilation that it might

possibly have had something else in mind.’’ 7d. at 1392.

See also Baker v. Wade, 769 F.2d 289, reh’g denied, 774

F.2d 1287 (5th Cir. 1985) (en banc). It is submitted that

the court below has erroneously engaged in such specula-

tion.

B. There Have Been No Subsequent Doctrinal

Developments Since Doe.

—__——

The majority below found two actions by this Court

constituted ‘‘doctrinal developments’’ which relieved it

of any burden to follow the summary affirmance in Doe.

The first ‘‘action’’ appeared in Carey v. Population Serv-

ices International, 431 U.S. 678 (1977), in which it was

held, inter alia, that states could not prohibit the sale of

non-prescription contraceptives to adults by others than

licensed pharmacists. The precise ‘‘action’’ referred to by

the court below was a reference in two footnotes in that de-

cision that the extent to which the Constitutio? pro-

hibits state regulation of private consensual sexual be-

havior has not definitely been answered. Jd. at 688 n. 5.

694 n. 17.

The second ‘‘action’’ by this Court was its dismissal

of certiorari in New York v. Uplinger, — U.S. —, 104 S.Ct.

2332 (1984). In that case, the New York Court of Appeals

had invalidated a statute prohibiting loitering in public

places for the purpose of engaging in or soliciting ‘‘deviate

sexual behavior.’’ The majority of the court below con-

cluded that this Court’s grant of certiorari in Uplinger

was an indication that this Court was prepared to address

the constitutionality of state statutes involving sodomy.

12

It is urged that the court below has overreached in its

efforts to evade Doe, and its conclusions with respect to

purported doctrinal developments cannot be objectively

supported. This is due, in part, to what is perceived by

Petitioner as the compounding of an error first committed

in Lecates v. Justice of the Peace Court No. 4, 637 F.2d

898 (3rd Cir. 1980). In that case, after giving due con-

sideration to this Court’s decisions concerning the manner

in which summary affirmances are to be regarded by

lower courts, the Third Circuit, without supporting auth-

ority, stated:

{[Ijndications that there have been doctrinal de-

velopments since the summary action will relieve a

lower court from the duty to adhere to a summary

disposition.

Id. at 904.

However, in Hicks v. Miranda, supra, this Court had

indicated that the doctrinal developments exception was

to be applied to summary dismissals for want of a sub-

stantial federal question. No mention was made of its pos-

sible application to summary affirmances. Thus, it is not

clear that the Third Circuit correctly extended the doc-

trinal development exception to such affirmances, and it

is urged that it did not.

But assuming, arguendo, that a doctrinal development

would relieve a lower court from following a summary af-

firmance, such a development must, of necessity, occur in

this Court itself. ‘‘Needless to say, only this Court may

overrule one of its precedents.’’ Thurston Motor Lines v.

Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983); See also

Jaffree v. Wallace, 705 F.2d 1526, 1532 (11th Cir. 1983),

aff’d, — U.S. —, 105 S.Ct. 2479 (1985). Moreover, ‘‘some

13

clear indication that the Supreme Court would no longer

follow [a] precedent ...’’ is required. Henderson v. Cron-

vich, 402 F.2d 763, 764 (5th Cir. 1968).

1. Carey v. Population Services

For a number of reasons, the Eleventh Circuit’s con-

clusion that Carey’s footnotes constitute a doctrinal de-

velopment is ill-founded. First, the only aspect of the right

of privacy applied in Carey was ‘‘[t]he decision whether

or not to beget or bear a child.’’ 430 U.S. at 685. The

Court repeatedly emphasized this. Id. at 686-88. In foot-

note 5, five members of the Court limited the effect of. the

decision to ‘‘state regulation .. . only when it ‘burden{s]

an individual’s right to decide to prevent conception or

terminate pregnancy by substantially limiting access to

the means of effectuating that decision.’ [cit. omitted.]’’

The Court expressly declined to address ‘‘state regulation

. ‘whenever it implicates sexual freedom’... or ‘af-

fect[s] adult sexual relations.’ ’’ Id. at 688 n. 5. Obvious-

ly, the aspect of privacy at issue in Carey did not concern

homosexuals.

Second, the remark that the ‘‘outer limits’’ of one as-

pect of privacy ‘‘have not been marked by the Court,’’

id. at 684-85, in no way casts doubt on the authority of

Doe v. Commonwealth’s Attorney. As Judge Kravitch ob-

served in her dissent below, this statement ‘‘simply

acknowledges the fact that the Court has not yet passed

on the validity of many kinds of state statutes regulating

sexual conduet,’’ citing as an example Georgia’s fornica-

tion statute. O.C.G.A. § 16-6-18 (1984); Hardwick, 760

F.2d at 1215 (Kravitch, J., dissenting) (Cert. App. at 32).

Third, footnote 17 in Carey does not even remotely ad-

14

dress the issues sub judice. The context of that footnote

was that it had been argued by those defending New York’s

restrictions on minors’ access to contraceptives that sig-

nificant state interests were served because ‘‘free avail-

ability to minors of contraceptives would lead to increased

sexual activity among the young in violation of the policy

of New York to discourage such behavior.’’ Jd. at 694.

The appellees in Carey had argued, however, that the

state’s policy to discourage sexual conduct by minor’s was

itself unconstitutional. At that point, the Court interposed

footnote 17 which merely explained that the Court was not

willing to expand the right of privacy as far as had been

urged by the appellees. It is difficult, at best, to see how

this footnote could be interpreted as a statement by this

Court that it is now an open qustion as to whether the

right of privacy invalidates all state statutes regulating

anv kind of private sexual conduct, much less consensual

homosexual sodomy.

Fourth, this Court has recently warned against over-

reliance on the language contained in its footnotes. In

Wamwright v. Witt, — U.S. —, 105 S.Ct. 844 (1985), the

Court stated that its footnotes in Witherspoon v. Illinois,

391 U.S. 510 (1968), were only dicta and ‘‘not controlling.’’

Id. at 851. See also McDaniel v. Sanchez, 452 U.S. 130, 141

(1981). It is urged that this observation is equally applic-

able here, especially where the reliance on footnotes is in

derogation of a previous precedent of this Court on the

merits of issues not involved in the case wherein the foot-

notes appear.

Perhaps a stronger argument for reliance on one of

this Court’s footnotes can be made where the note deals

more specifically with the subject matter at hand. For

15

example, in Rose v. Locke, 423 U.S. 48, 50 n.3 (1975), a

majority of this Court indicated that at least one of the

activities proscribed by Georgia’s statute (cunnilingus)

was not a fundamental right requiring special judicial

serutiny.

2. New York v. Uplinger

The majority opinion below concluded that this

Court’s dismissal of certiorari in New York v. Uplinger,

supra, provided an indication that the constitutional ques-

tions presented by Michael Hardwick are open for con-

sideration ‘‘by the Supreme Court and by this Court.’’

Hardwick, 760 F.2d at 1210. (Cert. App. at 21). While

this observation may have been true as to this Court’s abil-

ity to reconsider its own decisions, the majority below

missed the mark as to its own ability to reject a precedent

of the Supreme Court. Nonetheless, based upon the state-

ment by this Court that the Uplinger case provided ‘‘an

inappropriate vehicle for resolving the important consti-

tutional issues raised by the parties,’’ Uplinger, — U.S.

, 104 S.Ct. at 2334, the majority below inferred that one

of the important issues was whether a right of privacy

requires the invalidation of sodomy statutes, and that this

Court’s intention was to reverse, or at least reconsider,

Doe v. Commonwealth’s Attorney. The issues raised in

Uplinger were vagueness, overbreadth, First Amendment,

equal protection and due process. As noted by Judge

Kravitch, the per curiam dismissal of the writ did not

identify which of these issues were considered important.

Hardwick, 760 F.2d at 1216 n. 10 (Kravatch, J., dissent-

ing) (Cert. App. at 34).

Moreover, even the majority below recognized that the

state court decision in Uplinger was subject to varying

16

interpretations which made it difficult to determine exact-

ly which federal constitutional issues had been decided. Id.

at 1210 (Cert. App. at 20). This certainly appears to be

incongruent with the strong assertion of the majority be-

low that this court was prepared in Uplinger to address

the constitutionality of state sodomy statutes. It is sug-

gested that the holding of this Court in Uplinger was that

a precise federal constitutional issue could not be identified

for consideration and that this was the reason for dis-

missing the writ of certiorari. In any event, Uplinger

gave no indication that this Court was about to overrule

Doe v. Commonwealth’s Attorney.

3. Other decisions

While petitioner would not presume to suggest that

this Court would in any way be impeded from reconsidera-

tion of Doe’s summary affirmance, it seems worthy of

note that many courts have expressed confidence in the

validity of Doe’s precedent since the Carey decision and

the dismissal of certiorari in Uplinger. In Carey itself,

Justice Rehnquist, in dissent, stated that, footnote 17 not-

withstanding, Doe v. Commonwealth’s Attorney was a

definitive decision on the ‘‘facial constitutional validity of

criminal statutes prohibiting certain consensual acts.’’

Id. at 718 n. 2 (Rehnquist, J., dissenting). Moreover, as

the Ninth Circuit observed in Beller v. Middendorf, 632

F.2d 788 (9th Cir. 198), ‘‘[m]lost federal courts, on the

other hand, have understood the holding [in Doe v. Com-

monwealth’s Attorney] to be that homosexual conduct

does not enjoy special constitutional protection under the

due process clause.’’ Jd. at 809-10. The Ninth Circuit in

Beller cited an impressive array of cases, which will not

be repeated here, in support of this proposition.

17

More recently, the Court of Appeals for the District

of Columbia in Dronenberg v. Zech, 741 F.2d 1388, reh 77)

dented, 746 F.2d 1579 (D.C. Cir. 1984) (en bane), found

that Doe remained a binding precedent, even after full

consideration of Griswold, supra, and its progeny, includ-

ing Carey.

The Fifth Cireuit in Baker v. Wade, 769 F.2d 289

reh’g dented 774 F.2d 1287 (5th Cir. 1985) (en banc), re-

cently reversed a Texas district court decision invalidating

a homosexual sodomy statute on privacy and equal protec-

tion grounds. The Court adopted the view stated in

Dronenberg and by Judge Kravitch in her dissent below.

Finally, it should be noted that Judge Merhige of the

Eastern District of Virginia, who filed the dissent in the

original three-judge proceeding in Doe v. Commonwealth’s

Attorney, recently acknowledged its continuing efficacy

in Doe v. Dul.ng, 603 F.Supp. 960 (E.D.Va. 1985), stating

that ‘‘. . . Virginia’s sodomy statute as applied to adult

males who consensually engage in homosexual sodomitic

activity in privacy is a constitutional exercise of state

power.’’ Id. at 965 (dicta).

In summary, the majority below made unwarranted

assumptions and drew prohibited inferences in its efforts

to validate its rejection of Doe v. Commonwealth’s Attor-

ney. It is respectfully urged that the tortuous roadmap

laid out by the court below enroute to its predetermined

destination is too convoluted to be followed without error.

The plain language of //licks v. Miranda, 422 U.S. 332

(1975), lays out a much’straighter path. Summary affirm-

ances are binding on lower courts until the Supreme Court

informs that they are not. /d. at 344-45. It is respectfully

urged that this admonition has not been heeded by the ma

jority Lolow.

18

II. The Court Below Erred In Concluding That

Georgia’s Sodomy Statute Infringes Upon The

Fundamental Rights Of Homosexuals And In

Requiring The State Of Georgia To Demonstrate

A Compelling State Interest In The Prohibition

Of Sodomy In Order To Support The Constitu-

tionality Of The Statute.

The majority below, once it had dispensed with Doe v.

Commonwealth’s Attorney, went on to examine the ques-

tion of whether Petitioner Bowers and the other De-

fendants were entitled to dismissal on some ground other

than the precedent of Doe. If it were to conclude that the

sodomy statute was to be tested on!y by minimal judicial

serutiny, and if Hardwick could not prove that the law was

not rationally related to a legitimate state purpose, the

district court’s dismissal could stand. Hardwick, 760 F.2d

at 1211 (Cert. App. at 22).

The court below, however, concluded that Georgia’s

sodomy statute infringes on fundamental constitutional

rights of Michael Hardwick, i.e., a fundamental right of

privacy and a constitutionally protected right of intimate

association. This conclusion goes far beyond any intima-

tion by this Court of the extent to which the Constitution

affords such protection.

A. The Right Of Privacy.

That there exists a right of personal privacy under

the Constitution is not questioned by Petitioner. Though

this right is not articulated textually in the Constitution,

it is said to emanate from the penumbras of the First,

Fourth, Fifth and Ninth Amendments, and the concept

of liberty embodied in the Fourteenth Amendment. Roe

». Wade, 410 U.S. 113, 152 (1973), and cases cited therein.

19

However, the court below, in its expansive view of the

right of privacy, failed to recognize the historical view of

this Court that ‘‘only personal rights that can be deemed

‘fundamental’ or ‘implicit in the concept of ordered

liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937), are

included in this guarantee of personal privacy.’’ Roe, 410

U.S. at 152.

Thus far, this Court has recognized that the right of

privacy extends to activities relating to marriage, Zab-

lockt v. Redhatl, 434 U.S. 374 (1978); Loving v. Virginia,

388 U.S. 1 (1967), and other familial relationships, Moore

v. City of East Cleveland, 431 U.S. 494 (1977); decisions

relating to whether to conceive or bear a child, City of

{kron v. Akron Center for Reproductive Health, 462 U.S.

416 (1983); Bellotts v. Baird, 443 U.S. 622 (1979): Carey v.

Population Services International, 431 U.S. 678 (1977);

Roe v. Wade, 410 U.S. 113 (1973): Eisenstadt v. Baird, 405

U.S. 488 (1972): Griswold v. Connecticut, 381 U.S. 479

(1965); and child rearing and education, Pierce v. Society

of Sisters, 268 U.S. 510 (1925). It is certainly not argued

here that these zones of privacy should not be considered

fundamental or implicit in the idea of ordered liberty.

ilowever, the lower court has taken an activity which

for hundreds of years, if not thousands, has been uniformly

condemned as immoral, and labeled that activity as a

fundamental liberty protected by the Constitution in the

same manner as are the intimacies of marriage. The court

below finds strength for this conclusion in the fact that

the activity in this case is alleged to occur in Hardwick’s

home veen consenting adults.

20

While the right of privacy may have its aegis in the

penumbras of the Bill of Rights or the due process clause

of the Fourteenth Amendment, there must, at some point,

be some basis for cataloging a particular activity under

the protection of that right. No such basis exists for add-

ing the crime of sodomy to the list of fundamental rights

thus far recognized by this Court.

Obviously, there is no textual support in the Consti-

tution or laws of the United States for the proposition

that sodomy is a protected activity. Nor can it be said

that the lower court’s reasoning was based on some abso-

lute truth or ethic engrained in American philosophy and

which rises above the Constitution. It simply cannot be

said that the lower court’s decision was based upon the

Natural Law referred to by Jefferson in the Declaration

of Independence. No universal principle of morality

teaches that homosexual sodomy is acceptable conduct.

To the contrary, traditional Judeo-Christian values pro-

scribe such conduct. Indeed, there is no validation for

sodomy found in the teaching of the ancient Greek philoso-

phers Plato or Aristotle. More recent thinkers, such as

Immanuel Kant, have found homosexual sodomy no less

unnatural.’

2Plato, Laws, 636 C quoted in R. Reilly, Homosexual Rights

and The Foundations of Human Kights, infra n. 20; (“The inter-

course of men with men, or of women with women, is contrary

to nature, and .. . the bold attempt was originally due to un-

bridled lust.’’) See also Aristotle, Nicomachean Ethics, Vil, 5:1-3,

1148(b), 15-30 (Oxford trans.), M. Hamburger, Morals and Law,

The Growth of Aristotle’s Legal Theory, 87 (1951).

31. Kant, Lectures on Ethics, 170 (L. Infield trans. 1963).

2]

Nor can it be said that support for the lower court’s

conclusion may be found in the legal traditions of our

society. Justice Powell, in Moore v. City of East Cleve-

land, 431 U.S. 494 (1977), identified tradition as a pedi

greed guide to the identification of fundamental rights.

To find this tradition and the roots of modern conven-

tional morality and law relative to the crime of sodomy,

only a brief historical review is necessary. Sodomy was

proscribed in the laws of the Cld Testament (Leviticus

18:22) and in the writings of St. Paul (Romans 1:26, 27:

1 Corinthians 6:9, 10). Sodomy was a capital crime in

ancient Rome under the Theodosian law of 390 A.D.* and

under Justinian.’ Sodomy was proscribed by the teach

ings of St. Thomas Aquinas. Sodomy was prosecuted as

heretical in the ecclesiastical courts throughout the Middle

\ges.’ During the English Reformation when powers of

the ecclesiastical courts were transferred to the King’s

courts, the first English statute criminalizing sodomy was

passed.®

In the first half of the 17th Century, Lord Coke ex-

pounded upon the crimes of buggery and sodomy, noting

*D. Bailey, ’iomosexuality in the Western Christian Tradition

70-81 (1975).

—-4> =

‘Bailey, supra n.4, at 73-75, quoting Justinian, Novellae

141.

*Summa Theologica II-Il, QO Cliv. |, Il and XII. D. Richards,

Unnatural Acts and the Constitutional Right to Privacy, 45

Fordham L. Rev. 1281, 1296 (1977)

7See W. Barnett, Sexual Freedom and the Constitution 80-

81 (1973); Bailey, supra n.4, at 135; and D. Richards, supra n.6 at

1296-97.

825 Hen. VIII, c.6 (1533) (repealed by 9 Geo. IV 31 (1828));

see also 5 Eliz. |, c.17 (1562). See Barnett, supra n.7, at 81.

that the ‘‘ancient authors doe conclude, that it deserveth

death, ultimum supplicitum, though they differ in the man-

ner of punishment.’ Blackstone considered ‘‘the infam-

ous crime against nature’’ as an offense of ‘‘deeper malig-

nity’’ than rape, and an act so heinous, ‘‘the very mention

of which is a disgrace to human nature,’’ ‘‘a crime not fit

to be named.’’!

Coke’s Institutes and the Commentaries were studied

by colonial lawyers in America. The popularity of Coke

in the colonies and the significance of that popularity was

recognized by this Court in Payton v. New York, 445 U.S.

073, 594 n. 36 (1980). Two thousand five hundred copies

of the Commentaries were sold in America before the

Revolution, and a subscription reprint was published in

Philadelphia between 1771 and 1772. ‘‘John Adams, Esq..

Barrister at Law, Boston, Massachusetts Bay,’’ was among

the subscribers."

In Georgia, the common law of England in force prior

to May 14, 1776, was adopted as the law of the state by an

act of the General Assembly approved February 25, 1784

(Prince’s 1837 Digest 570; see also Cobb’s 1851 Digest

720).

In 1816, the crimes of sodomy and bestiality were

made punishable in Georgia by life imprisonment at hard

®*Coke, Third Part of the Institutes of the Laws of England at

58-59 (Brooke ed. 1797).

104 W. Blackstone, Commentaries 215.

1R. Pound, The Development of Constitutional Guarantees

of Liberty 61 (1957).

99

ao

labor (Lamar’s Laws of Georgia, 1810-1819, at 571. 4 35)

12

and have continuously been statutory crimes ever since.

While Respondents correctly note that 22 states have

legislatively decriminalized homosexual sodomy (Brief in

Opposition to Petition for Certiorari at 12, n. 6), 25 states

and the District of Columbia continue to maintain criminal

statutes against this econduct.’2 New York and Pennsyl-

vania have judicially decriminalized homosexual sodomy.

People v. Onofre, 51 N.Y.2d 476 (1980): Commonwealth v.

Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). Thus, neither the

legal nor moral traditions of this nation can provide the

necessary support for the recognition of consensual

sodomy as falling within that class of rights deemed

fundamental or implicit in the concept of ordered liberty.

Tradition provides no basis for proteeting this activity

under the guise of a right of privacy

One other possible source of authority for judicial

recognition of a fundamental right of privacy to engage

in homosexual sodomy is the ‘‘consensus rationale’’ dis-

cussed by some legal scholars. See, e.g., Wellington, Com

mon Law Rules and Constitutional Double Standards:

Some Notes on Adjudication, 83 Yale L.J. 221, 243-49

2Ga. Laws 1833, Cobb’s Digest, 1851, p. 787; Code 1863,

§§ 4251, 4252: Code 1868, §§ 4286, 4287; Code 1873, §§ 4352,

4353: Code 1882, §§ 4352, 4353; Pena! Code 1895, §§ 382, 383;

Penal Code 1910, §§ 373, 374: Code 1933, §§ 26-5901, 16-5902;

Ga. Laws 1949, p. 275, § 1; Code 1933, § 26-2002, enacted by Ga.

Laws 1968, p. 1249, § 1.

l3Alahbama, Arizona, Arkansas, District of Columbia, Florida,

Georgia, Idaho, Kansas, Kentucky, Louisiana, Maryland, Massa-

chusetts, Michigan, Minnesota, Missouri, Montana, Nevada,

North Carolina, Oklahoma, Rhode Island, South Carolina, Ten-

nessee, Texas, Utah, and Virginia; J. Lorence, Sodomy Laws, Right

of Privacy and the Courts, printed in Magnusen, Are Gay Rights

Right? A Report on Hormmosexuality and the Law 83-90 (1985).

24

(1973). A review of the decision below excludes this

theory as a possible basis. The Court below did not dis-

close any consensus of thought in this nation which contra-

dicts the legislative judgment of ihe General Assembly

of Georgia concerning the moral or other reasons for pro-

hibiting sodomy.

While the court below attempted to use this Court’s

prior decisions on the right of privacy as a basis for its

opinion, it did so without any deference to their subject

matter context, and it failed to give any effect whatsoever

to this Court’s indication in Rose v. Locke, 423 U.S. 48, 50

n.3 (1975), that the act of cunnilingus is not considered to

involve a fundamental right. Rather, the court below

found that homosexual sodomy was protected by the

Ninth Amendment and the Fourteenth Amendment’s con-

cept of liberty. Hardwick, 760 F.2d at 1212 (Cert. App.

at 26).

The Ninth Amendment’s guarantee that ‘‘[t]he

enumeration in the Constitution of certain rights shall not

be construed to deny or disparage others retained by the

people’’ was, as Justice Goldberg observed in Griswold,

a recognition by the framers that fundamental rights exist

which are not enumerated in the first eight amendments,

and that these unenumerated rights should be protected.

Obviously, since these rights are unenumerated, if they are

to be protected they must first be identified. The same,

of course, is true for those fundamental liberties protected

by the Fourteenth Amendment but not specifically enun-

ciated in the Bill of Rights. In performing this task of

identifying which rights are fundamental, Justice Gold-

berg instructed that:

> oo

aw

... Judges are not left at large to decide cases in light

of their personal and private notions. Rather, they

must look at the ‘‘traditions and [collective] con-

science of our people’ to determine whether a prin-

ciple is ‘so rooted ithere] rar f ys ranked as

fundamental.’’ Snyder v. Massachusetts. 291 TS.

97.105....

Griswold, 381 U.S. at 493 (Goldberg, J., concurring).

The court below has ignored the traditions and col-

lective conscience of this nation. By concluding that homo.

sexual sodomy, for some, serves the same purpose as the

intimacy of marriage, Hardwick, 760 F.2d at 1212 (Cert.

App. at 24), it has lowered the estate of marriage, which

has traditionally been held an institution worthy of the

protection and nurture of the State, to merely another

alternative for sexnal gratification. This court in Zab-

lockt v. Redhail, 434 U.S. 374 (1978) recognized marriage

as the ‘‘foundation of the family and of society, without

Id. at 384, quoting Maynard v. Hill, 125 U.S. 190, 211

(1888). Marriage and the family are certainly within a

zone of privacy which did, at the time the Constitution was

ratified, and does now, transcend the enumerated rights.

The common principles of this Court’s privacy decisions

have revolved around marriage, the family, the home and

decisions as to whether through procreation the ancient

cycles will begin again and, if so, in what manner the new

generation will be brought up. These rights have always

been with us, and are part of us. Sodomy is not now and

has never been a right, fundamental or statutory, in exist-

ence to be ‘‘retained by the people’’ under the Ninth

Amendment. Nor can it be said that sodomy was con-

sidered to be an unenumerated but inherent liberty recog-

26

nized at the time the Fourteenth Amendment became part

of the law of this land. It is not a part of our traditional

values or conventional morality.

B. Homosexual Sodomy Is Not Protected By The

Home.

The court below attempts to bolster its conclusion

with the observation that Hardwick intends to commit

sodomy in his home, citing Payton v. New York, 445 U.S.

573, 589-90 (1980), and Stanley v. Georgia, 394 U.S. 557

(1969). Payton held unconstitutional the physical entry

into private residences to effect routine felony arrests

in the absence of warrants, exigent circumstances, or con-

sent. While Payton does recognize the importance of the

home as a situs in which an individual may be free from

unreasonable governmental intrusion, this Court made it

quite clear that the home was not an inviolable haven for

crime or criminals. As Justice Harlan noted in his dis-

sent in Poe v. Ullman, 367 U.S. 497 (1961) :

... [I]t would be an absurdity to suggest either that

offenses may not be committed in the bosom of the

family or that the home can be made a sanctuary for

erime. The right of privacy most manifestly is not

absolute. Thus, I would not suggest that adultery,

homosexuality, fornication, and incest are immune

from criminal inquiry, however privately practiced.

So much has been explicitly reeognized in acknowledg-

ing the state’s rightful concern for its peoples’ moral

welfare. See 367 U.S. at pp. 545-548, supra.

Td. at 552-53 (Harlan, J., dissenting).

Stenleu, supra, held simply that the First and Four-

teenth Amendments prohibit making the private posses-

sion of obscene material in one’s home a crime. However,

the basis for the Court’s opinion was rooted in the First

Amendment right to receive information and ideas and the

absolute prohibition, founded in the First Amendment,

against attempts by the government to control the moral

content of a persen’s thoughts.

Georgia’s sodomy statute does not purport to contro!

men’s minds or inhibit their freedom of expression. It i:

directed toward an act which is in itself immoral. Even so,

the Court has clearly indicated that where ‘‘speech’’ or

the expression of ideas involves the commission of acts

the scope of permissible regulation by the state significant-

lv increases. In United States v. O’Brien, 391 U.S. 367

(1968), the Court declined to accept the notion that con-

duct is always protected ‘‘speech’’ whenever the person

intends thereby to express an idea. See also California

v. LaRue, 409 U.S. 109, 117, 118 (1972); Miller v. Cali-

fornia, 413 U.S. 15, 26 n.8 (1973); Brandenburg v. Ohio,

395 U.S. 444, 447 (1969). It is submitted that homosexual]

sodomy as an act of sexual deviancy expresses no ideas.

It is purely an unnatural means of satisfying an unnatural

lust, which has been declared by Georgia to be morally

wrong.

The reason Stanley is inapplicable here is that sodomy

does not enjoy the status of a fundamental right. While

individuals are free to live and make fundamentally pri-

vate decisions in their homes concerning marriage, pro-

creation, child rearing, education, and indeed, the content

of one’s own library and‘ his most personal thoughts, other

activities which are not fundamental rights, but which

might also take place in the home, are not and cannot be

free from proper regulation. Otherwise, the states would

28

be unable to meet their obligations under the police power

in a myriad of circumstances. As Chief Justice Burger

pointed out in Paris Adult Theater I v. Slaton, 413 U.S.

49, 68 n.15 (1973), there are numerous laws prohibiting

such acts as prostitution, suicide, voluntary self-mutilation,

and bigamy which are practiced by or among consenting

adults, more often than not in secret. Under the Eleventh

Cireuit’s rationale, perhaps none of these actions could be

reached by the State if they perchance occur within the con-

fines of someone’s home.

It is not so much the place where any given activity

occurs that determines whether the activity is protected

as a fundamental right as it is the nature of the activity

itself. This is not to say that the people are not entitled

’

to look upon their home as their ‘‘castle’’ and be secure

there from unreasonable governmental intrusion. The

Fourth Amendment articulates this fundamental right.

Payton, supra; Stanley 94 U.S. at 569-76 (Stewart, J., con-

curring). Petitioner has no quarrel. of course, with the

principles enunciated by the Fourth Amendment or this

Court’s interpretations of that part of our constitution.

The citizens’ rights under the Fourth Amendment are quite

properly ‘‘fundamental.’’ However, those activities which

are not specifically protected under th: Constitution, and

which do not fall within those zones of privacy thus far

enunciated by this Court, should not be protected, neces-

sarily, Ly an arbitrary delineation of privacy at the front

doorstep of an individual’s house. The right of privacy

in the home is not absolute. Poe v. Ullman, 367 U.S. 497,

552 (Harlan, J., dissenting).

Justice Blackmun. recognized in Roe v. Wade, 410 U.S.

113, 154 (1973), that there are limits on the right of privacy

29

and indicated that lines must be drawn in recognition of

those limits. Where the nature of the activity is examined

to determine whether it is deserving of constitutional pro-

tection as a fundamental right of privacy based upon the

traditions of our society, then the line marking the limits

undoubtedly will be properly drawn. But where, as in the

court below, the nature of the activity is disregarded, and

the activity is deemed fundamental only because of where

it takes place, the line becomes a gerrymandered scrawl.

C. Homosexual Sodomy Is Not Protected By A

Constitutional Right Of Association.

The court below found that the conduct Hardwick en-

gages in is ‘‘quintessentially private and lies at the heart

of an intimate association beyond the proper reach of

state regulation,’’ and placed homosexual sodomy, at least

for some, on the same plane as the intimacies of marriage.

Hardwick, 760 F.2d at 1212 (Cert. App. at 24). Again,

the lower court has made an inferential leap well beyond

any previous delineations marked by this Court.

In Moore v. City of East Cleveland, 431 U.S. 494

(1977), this Court struck down on due process grounds

an ordinance which limited the occupancy of a dwelling

to members of a single family composed of only a few

eategories of related individuals. The Court distinguished

its previous decision in Village of Belle Terre v. Boraas,

416 U.S. 1 (1974), which upheld an ordinance limiting oc-

eupancies to traditional families or to groups of not more

than two unrelated persons, solely on the ground that the

Belle Terre ordinance affected unrelated individuals. It

allowed occupancy by all who were related by blood, adop-

tion, or marriage.

30

Justice Powell, writing for the plurality in Moore,

recognized the right of individuals to be free from

governmental intrusion in decisions relating to marriage

and family life, and used as a guide the teachings of his-

tory and the basic values of society to conclude that the

Constitution protects the sanctity of the family, even the

extended family, ‘‘precisely because the institution of the

family is deeply rooted in this nation’s history and tra-

dition. It is through the family that we inculcate and

pass down many of our most cherished values, moral and

eultural.’’ Moore, 431 U.S. at 503-04. There are no incon-

sistencies between Moore and Pelle Terre, supra. Together

they mark a limitation on the right of privacy and intimate

association in the realm of cohabitation to that of the

family.

In their brief in opposition to the writ of certiorari,

however, Respondents relied on this Court’s recent deci-

sion in Poberts v. United States Jaycees, — U.S. — , 104

S.Ct. 3244 (1984). wherein this Court held that the associa-

tional freedoms asserted by the Jaycee organization were

not sufficient to preclude application of the Minnesota

Human Rights Act. Of course, under the act and this

Court’s decision, the organization was required to accept

women in its membership. The type of associational in-

terest most directly involved in Roberts was quite clearly

that relating to the right to associate for expressive, First

Amendment, purposes. See, e.g., Gilmore v. City of Mont-

gomery, 417 U.S. 556, 575 (1974). However, it was con-

cluded by this Court that even that kind of associational

freedom is not absolute. and may be infringed upon for

compelling state interests. Roberts. -- U.S. at — , 104

S.Ct. at 3252.

31

The associational interests claimed by Michael Hard-

wick are quite dissimilar to those asserted by the United

States Jaycees or the interests discussed by Justice Bren-

nan in Part II A of the Roberts opinion. After discussing

the importance of protecting certain personal relationships

because of their ‘‘critical role in the culture and traditions

of the Nation by cultivating and transmitting shared ideals

and beliefs > and the ‘‘realization that individuals

draw much of their emotional enrichment from close ties

with others.’’ zd. at 104 S.Ct. at 3250. Justice Brennan

stated that:

[t]he personal affiliations that exemplify these con

siderations, and that therefore suggest some relevant

limitations on the relationships that might be entitled

to this sort of constitutional protection are those that

attend the creation and sustenance of a family-mar-

riage, e.g., Zablocki v. Redhail, supra; childbirth, e.g.,

Carey v. Population Services, Int’l, supra; the raising

and education of children, e.g., Smith v. Organization

of Foster Families, supra [431 U.S. 816 (1977)] and

cohabitation with one’s relatives, e.g., Moore v. City

of East Cleveland, supra. Family relationships, by

their nature, involve deep attachments and commit

ments to the necessarily few other individuals with

whom one shares not only a special community of

thoughts, experiences, and beliefs but also distine

tively personal aspects of one’s life. ... Only re

lationships with these sorts of qualities are likely to

reflect the considerations that have led to an under

standing of freedom of association as an intrinsic ele-

ment of personal liberty.

Id. at —, 104 S.Ct. at 3250-51 (emphasis added).

Georgia’s sodomy statute does not infringe on any

of these values. It applies exclusively to an act found by

the General Assembly of Georgia to be immoral. It does

Ler)

32

not impact upon an individual’s First Amendment free-

dom to cultivate and transmit even unpopular ideas or

political doctrines. It does not tell individuals who their

friends may or may not be, or with whom they may spend

their time, worship, work, or engage in legitimate yet per-

sonal discourse. The statute most certainly does not in-

terfere with personal decisions concerning marriage or

family life, the raising of children or their education, or

which members of a family will be permitted to live to-

gether.

There are and must be limits upon this right of inti-

mate association, as Justice Brennan indicated. Other-

wise, a multiplicity of areas in which the states and the

national government have exercised regulatory power

would be removed from regulation under the guise of as-

sociation. Perhaps polygamy is the best example. In

Reynolds v. United States, 98 U.S. 145 (1878), this Court

upheld a congressional enactment making bigamy a crime

in the territories. The Court noted that polygamy was his-

torically abhorred in northern and western Europe and

that at common law a second marriage was void. The

Court recounted the ecclesiastical prosecutions in England

for this crime and the post-reformation English statutory

treatment, noting that the penalty was death. The Court

traced this crime through colonial times to the time of that

opinion. Against the claim that polygamy was a valid free

exercise of religion, the Court found that ‘‘laws are made

for the governance of actions, and while they cannot inter-

fere with mere religious belief and opinions, they may

with practices.’’ Id. at 166. But perhaps more important

than this was the Court’s reasoning as to the justification

for polygamy statutes. The Court noted that traditional

33

marriage is the bedrock of society, the essential and ele

mentary unit upon which even government depends. Po-

lygamy, the Court concluded, would upset the necessary

balance provided by the traditional entity, to the general

detriment of society. The protection of the ‘‘organization

of society’’ was found valid against contrary religious

views. Otherwise, the Court specifically noted, religious

beliefs would subjugate the law, and permit each individual

to become a law unto himself. Jd. at 167. Cf. Bob Jones

University v. United States, 461 U.S. 574, 603 (1983):

Zablocki v. Redhail, 434 U.S. 374, 384 (1978). See also

Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985).

Respondents claim that Hardwick’s associational in

terest, wrapped in the lower court’s privacy analysis, pr

cludes Georgia from prohibiting sodomy as an act. This

errant logic would lead to the conclusion that polygamy

may not be prohibited. Certainly, the elements of an ‘‘as

’

sociation’’ of individuals are present in polygamy. Aside

from possible religious justifications, it could also be

argued that polygamy might provide the source of certain

‘femotional enrichment,’’ Roberts, supra, U.S. at

104 S.Ct. at 3250. It could also be argued that the benefits

P

of ‘‘intimate association’? may be present in consensual

incest. It could be said that for some, liaison with prosti

tutes, commercial aspects notwithstanding, provide a simi-

lar sexual experience to that of marriage. Indeed, the

same could be said for adultery or fornication. However,

none of these activities, nor any associational aspects re

lating to them, can be said to have ‘‘played a critical role

in the culture and traditions of the Nation by cultivating

and transmitting shared ideals and beliefs .. .’’ fostering

diversity or ‘‘act[ing] as critical buffers between the in-

dividual and the power of the state.’’ Id. at 3250.

It is, therefore, submitted that homosexual sodomy

does not fall within those categories of activities protected

by a right of intimate association or a more general funda-

mental right of privacy. Since no fundamental right is in-

volved, all that need be shown by the State of Georgia is

that the statute is not arbitrary and bears a ‘‘rational re-

lationship’’ to a legitimate state purpose. Compare Vil-

lage of Belle Terre v. Boraas, 416 U.S. at 8, with Roe v.

Wade, 410 U.S. at 155. Thus, the Eleventh Cireuit erred

in imposing the ‘‘compelling state interest’’ standard of

review on Georgia’s sodomy statute.

D. Considerations Of Federalism: Traditional

Morality And Other Legitimate State Inter-

ests.

Respondents would have this Court strike morality

from the legitimate areas in which the States may act. Yet

this Court and other federal courts have many times held

that morality and decency constitute legitimate and com-

pelling state interests. Paris Adult Theater I v. Slaton,

413 U.S. 49 (1973); Eisenstadt v. Bawrd, 405 U.S. 438

(1972): Near v. Minnesota, 283 U.S. 697, 716 (1931); Doe

v. Commonwealth’s Attorney, supra; Dronenberg v. Zech,

741 F.2d 388, reh’g denied, 746 F.2d 1579 (D.C. Cir. 1984) ;

Baker v. Wade, 769 F.2d 289, reh’q denied, 774 F.2d 1287

(5th Cir. 1985) (en bane).

In Noble State Pank v. Haskell, 219 U.S. 104 (1910),

Justice Holmes, in expounding upon the police power of the

States, stated as follows:

35

It may be said in a general way that the police powen

extends to all the great public needs. Camfield v.

United States, 167 U.S. 518. It may be put forth in

aid of what is sanctioned by usage, or held by the pre

vailing morality or strong and proponderant opinion

to be greatly and immediately necessary to the public

welfare.

Id. at 111. More recently, Justice Douglas stated that

‘*[p]ublice safety, public health, morality, peace and quiet,

law and order — these are some of the more conspicuous

examples of the traditional application of the police pow-

er to municipal affairs. Yet they merely illustrate the

scope of the power and do not delimit it.’’ Berman v.

Parker, 348 U.S. 26, 32 (1954) [citing Noble State Bank,

supra}.

As Justice Powell has stated, ‘‘the State, represent

ing the collective expression of moral aspirations, has an

undeniable interest in insuring that its rules of domestic

relations reflect the widely held values of its people.’’

Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J.,

eoncurring). In Paris Adult Theater I, 413 U.S. 49 (1973).

Chief Justice Burger recognized that ‘‘there is a ‘right of

the nation and of the States to maintain a decent society.

.”? Id. at 60-61, quoting Jacobellis v. Ohio, 378 U.S.

184, 199 (1964) (Warren, C.J., dissenting). Moreover, the

Court in Paris Adult Theater I made it clear that it is not

for the judiciary to decide ‘‘empirical uncertainties’’ con

cerning state legislation, except where the Constitution

plainly provides protection for a fundamental right. The

Court expressly found that legitimate ‘‘unprovable as

,

sumptions’? may be acted upon by both the courts and

legislatures in order to protect social interests in moral-

ity. Id. at 60-61. Following this reasoning, the district

aT A

—

court in Doe v. Commonwealth’s Attorney concluded Vir-

ginia was not required to show that moral delinquency

actually results from homosexuality, but that the conduct

would be likely to contribute to moral delinquency. In

Georgia, it is the very act of homosexual sodomy that

epitomizes moral delinquency. This is a choice which has

been made by the representatives of the people of this

State, based upon the traditional moral values of society.

A similar choice was made by Congress in its decision to

exclude homosexual aliens. See Boutiter v. Immigration

and Naturalization Service, 387 U.S. 118 (1967).

The Court of Appeals for the Fifth Circuit has re-

cently stated that moral issues should be resolved by the

people and not by the federal judiciary. Baker v. Wade,

774 F.2d 1287 (en banc), denial of rehearing in 769 F.2d

289 (5th Cir. 1985). See also Dronenberg v. Zech, 741 F.2d

1388, 1397 (D.C. Cir. 1984). If morality is a legitimate

state purpose, the identification of that morality, ‘‘the

widely held values’’ of the people, should be voiced through

their representatives. The legislative process is acutely

designed for this purpose, whereas the judiciary may be

inclined to make determinations based upon more empirical

evidence, to which this area is not particularly amenable.

See Paris Adult Theater I, supra. For example, it should

be permissible for the General Assembly to find as legisla-

tive fact that homosexual sodomy leads to other deviate

practices such as sado-masochism, group orgies, or trans-

vestism, to name only a few.'* Homosexual sodomy is often

practiced outside the home such as in public parks, rest-

4K. Jay and A. Young, The Gay Report 563-64. (Summit

1979).

’*

rooms, ‘gay baths,’’ and ‘‘gay bars’’!S and is marked by

the multiplicity and anonymity of sexual partners,’ a dis-

proportionate involvement with adolescents,” and. indeed.

a possible relationship to crimes of violence.'® Similarly,

the legislature should be permitted to draw conclusions

concerning the relationship of homosexual sodomy in the

transmission of Acquired Immune Deficiency Syndrome

(AIDS) and other diseases such as anorectal gonorrhea.

Hepatitis A, Hepatitis B, enteric protozoal diseases, and

9

Cytomegalovirus,” and the concomitant effects of this re

lationship on the general public health and welfare.

But perhaps the most profound legislative finding

that can be made is that homosexual sodomy is the anathe-

ma of the basic units of our society — marriage and the

family. To decriminalize or artificially withdraw thé

publice’s expression of its disdain for this conduct does not

uplift sodomy, but rather demotes these sacred institu

'SJay and Young, supra note 14, at 500-501.

16A. Bell & M. Weinberg, Homosexuality: A Study of Diver-

sity Among Men and Women 309 (1978).

jay & Young, supra note 14, at 275.

'8Cameron, Report on Homosexuality and Murder, Institute

for the Scientific Investigation of Sexuality (1984); as a possible

example, see Conklin v. State, 254 Ga. 558, — S.E.2d — (1985).

91 andesman, et al., “Special Report: The AIDS Epidemic,”

312 New Eng. J. Med. 521 (Feb. 21, 1985); Babb, “Sexually Trans-

mitted Infections in Homosexual Men,” Post Grad Med. J., No.

3 at 215, 216 (1979); Handsfield, “Sexually Transmitted Diseases

in Homosexual Men,” 71 Am. J. Pub. Health 989 (1981); Corey

& Holmes, “Sexual Transmission of Hepatitis A in Homosexual

Men,” 302 New Eng. J. Med. 435, 437 (1980); William, “The Sex-

ual Transmission of Parasitic Infections in Gay Men,” 5 |. Homo-

sexuality, 291, 292 (1980); Lange, et al., “Cytomegalovirus Isola-

tion from Healthy Homosexual Men,” 252 J.A.M.A. 1908, 1910

(1984).

38

tions to merely other alternative lifestyles. One author has

described that result as the promotion of indifference

toward these foundations of social order, where historical-

ly there has been endorsement. ‘‘Since that endorsement

was purported to be based upon knowledge of the objective

good of marriage, it taught not only that marriage was

good, but that we can know what is good. The latter is, in

a way, a far more critical lesson.’ See also Moore v. City

of East Cleveland, 431 U.S. at 503-04; Zablockt, 434 U.S.

at 385-86.

Justice Douglas said marriage ‘‘is an association that

promotes a way of life, not causes... .’’? Griswold, 381 U.S.

at 486. If the legal distinctions between the intimacies of

marriage and homosexual sodomy are lost, it is certainly

possible to make the assumption, perhaps unprovable at

this time, that the order of society, our way of life, could

be changed in a harmful way. The states have a legitimate

and, it is submitted, compelling interest in the protection

of the organization of society. See Reynolds v. United

States, supra.

The court below, however, has obliterated that dis-

tinction through the judicial creation of a new fundamental

right. It has gone beyond the text of the Constitution or

the penumbras of the Bill of Rights. It would, without

any adherence to the traditions, historical values of our

nation, or the contemplations of the Constitution’s fram-

ers, hold the will of the people of Georgia at bay. It has

recited Fourteenth Amendment ‘‘liberty’’ but has bowed

20R. Reilly, Homosexual Rights and the Foundations of Hu-

man Rights, reprinted in Rueda, The Homosexual Network, (1982)

from “Family Policy Insights” (Dec. 10, 1981).

og

to the temptation Justice Holmes warned against in Loch-

ner v. New York, 198 U.S. 45. 75-76 (1905) (Holmes, J..,

dissenting) by placing its opinion above that of the repre-

sentatives of the people without the support of ‘‘funda-

mental principles as they have been understood by the

traditions of our people and our law.’’ Id. at 76 (Holmes.

J., dissenting).

Petitioner does not dispute this Court’s power to de-

fine emerging rights under the Fourteenth Amendment or

the Ninth Amendment. But such rights must be rooted in

the traditions and moral values of our people. These

values cannot be subjected to deliberate change by judicial

action, although the contours of these values may develop

over the course of time by the people themselves. Adher-

ence to these values supplies the necessary stability in the

formulation of constitutional doctrine under the Four-

teenth Amendment and avoids unnecessary strains in our

federalism. Such an approach precludes the appearance

of a unilaterally imposed modification to the social con-

tract and gives due regard for the collective will of the

people. This has not been done by the Eleventh Cireuit

in this case.

CONCLUSION

As indicated above, Petitioner does not contest that

Liberty embodies certain inherent rights not enunciated in

the Constitution, or that these rights are protected by the

Ninth or Fourteenth Amendments. But, as Judge Learned

Hand once said, liberty ‘‘. . . is not the ruthless, the un-

40

bridled wili; it is not freedom to do as one likes. That is

the denial of liberty and leads straight to its overthrow.’’

Hand, The Spirit of Liberty 189-90 (Dillard ed. 1952).

Rather, true liberty can be found in the traditions and con-

science of our people.

The tradition and conscience of the people of Georgia

have been expressed in Georgia’s sodomy statute. This

conscience draws the necessary distinction between liberty .

and licentiousness, a distinction left utterly unobserved by |

the court below. For the reasons stated above, the judg-

ment and order of the Court of Appeals shouid be re-

versed.

Respectfully submitted,

MicHakE. J. Bowers

Attorney General

Marton O. Gorpon

First Assistant

Attorney General

Daryt A. Roprnson

Senior Assistant

Attorney General

Micuaet F.. Hopss

Senior Assistant

Attorney General