# Petitioners Brief — Bowers v. Hardwick

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 186

## Text

> | 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0873%3A06. Public record. Not legal advice.