Amicus Curiae Brief — Bowers v. Hardwick

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No. 85-140

IN THE Supreme Court, U.S.

Supreme Court of the United Sfates’ 1+ = P

October Term, 1985 BEC 19 1985

JOSEPH F. SPANIOL, JR

CLERK

BLE COPY

i TT an, ts panned

MICHAEL J. BOWERS,

ATTORNEY GENERAL OF GEORGJA

—.2

Petitioner,

Vv

MICHAEL HARDWICK, AND

JOHN AND MARY DOE,

Respondents.

ON WRIT OF CERTIORARI TO THE ELEVENTH

CIRCUIT COURT OF APPEALS

BEST AVAILA

BRIEF OF THE RUTHERFORD INSTITUTE,

AND THE RUTHERFORD INSTITUTES OF ALABAMA,

CONNECTICUT, DELAWARE, GEORGIA, MINNESOTA,

MONTANA, TENNESSEE, TEXAS, AND VIRGINIA, AMICI

CURIAE, IN SUPPORT OF THE PETITIONER

George M. Weaver

Counsel of Record

William B. Hollberg

Tony P. Trimble

The Rutherford Institute

of Minnesota

Wendell R. Bird 316 East Main

John W. Whitehead Anoka, Minnesota 55305

The Rutherford Institute J. Douglas Alexander

9411 Battle Street

Manassas, Virginia 22110

(703) 369-0100

Thomas O. Kotouc

The Rutherford Institute

of Alabama

317 North Hull Street

The Rutherford Institute

of Montana

104 Second Avenue, S.W

Sidney, Montana 59270

Les Bailey

The Rutherford Institute

of Tennessee

Montgomery, Alabama 36104

Joseph Secola

The Rutherford Institute

of Connecticut

31 Daggett Street

Milford, Connecticut 06460

Alfred Lindh

The Rutherford Institute

of Delaware

1 Customs House Square

Wilmington, Delaware 19801

William B. Hollberg

The Rutherford Institute

of Georgia

1275 Peachtree Street

Atlanta, Georgia 30367

Attorneys for Amici Curiae

701 East Sullivan Street

Kingsport, Tennessee 37660

W. Charles Bundren

The Rutherford Institute

of Texas

4300 Interfirst One

Dallas, Texas 75202

Guy O. Farley, Jr.

The Rutherford Institute

of Virginia

10521 Judicial Place

Fairfax, Virginia 22030

TABLE OF CONTENTS

Interest of Amici Curiae

Summary of Argument

Argument

Introduction

Only Fundamental Rights, Implicit in the Concept of

Ordered Liberty and Historically and Traditionally

Considered Beyond the Proper Scope of Government

Regulation, Are Protected By the Right of Privacy...

. This Court Has Previously Limited the Right of

Privacy to Activities and Decisions Relating to Mar-

riage, Child Bearing, and Family Because These

Matters Have Historically and Traditionally Been

Considered Beyond the Proper Scope of Government

Regulation

'. Traditionally and Historically Western Society Has

Considered the Practice of Sodomv, Even of

Consensua! and Private Nature, as Within the Proper

Scope of Government Regulation

Because the Practice of Sodomy, Even of A Consensual!

and Private Nature, has Never Historically or Tra-

ditionally Been Considered Beyond the Proper Scope

of Government Regulation, It Cannot Be Considered

a Fundamental Right Appropriate For Protection by

the Right of Privacy

‘I. Any Departure from the Historical Analysis Employed

by this Court in Its Previous Privacy Decisions Would

Seriously Undermine the Institutions of this Nation

and Could Lead to the Invalidation of all Regulations

of Private Conduct

. The Georgia Sodomy Statute Should Not Be Invali-

dated Under the Equal Protection Clause Inasmuch as

it is Reasonably Related to a Legitimate State Interest

Conclusion

Appendices

Appendix A

Appendix B

Certificate of Service

Page(s)

TABLE OF AUTHORITIES

Cases: Page(s)

Akron v. Akron Center for Reproductive Health,

ig Ge ee SE athemiecsscovene cect cbedenaet 1!

Baker v. Nelson, 291 Minn. 310, 191 N.W. 2d 185 (1971),

appeal dismissed, 409 U.S. 810 (1972) ............0005. 26

Baker v. Wade, 769 F.2d 289 (5th Cir.),

reh'g denied, 744 F.2d 1285 (Sth Cir. 1985)....... 4, 18, 28

Boutilier v. Immigration & Naturalization Service,

ee Pe diiVbdlevndenncbnadsce decd cbudons 19

Carey v. Population Services International,

Pe Ss Ns ended ekinbecsnce sande 4 3, 10, 21, 22

Church of Jesus Christ of Latter-Day Saints v.

United States, 136 U.S. 1 (1890) ...............ceeees 12

Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980) ...... 24

DeSantis v. Pacific Telephone & Telegraph Company,

See Wale See GN a GED cicubbivcescaas vocbestconce 28

Doe v. Commonwealth's Attorney for City of Richmond,

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

aff'd, 425 U.S. 901 (1976). ........ cece eee . 4, 21, 22, 28

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

reh'g denied, 746 F.2d 1579 (D.C. Cir. 1984) ..... 5, 26, 28

Duncan v. Louisiana, 391 U.S. 145 (1968) ... 2.2.2... 0... cee euee 6

Eisenstadt v. Baird, 405 U.S. 438 (1972) .......ccccccccccccces 10

Griswold v. Connecticut, 381 U.S. 479 (1965)... .........45. passim

Hamling v. United States, 418 U.S. 87 (1974)... 2... ce eee 19

Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985)....... 4, 22, 23

Hatheway v. Secretary of the Army, 641 F.2d

1376 (9th Cir. 1981), cert. denied, 454 U.S. 864(1981) ...28

a? US, Sees es SED bods dh eGatedédueedetdeide 6

Mishkin v. State of New York, 383 U.S. 502 (1966) ............. 19

Moore v. City of East Cleveland, Ohio

Se Wh Sn nts nective éa0c obs deenmuane 8,9, II

Cases Page(s)

National Gay Task Force v. Board of Education,

Fee ae CRP COU Geils BOD io ccccccccccccccccccccce 28

North American Co. v. SEC, 327 U.S. 686 (1946) ..... 2... .0005. 29

Palko v. State of Connecticut, 302 U.S. 319 (1937) ............ 5.6

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)........ 6, 24, 29

Pee Oh ey CI I os ccc ccdoccccccovccceea 10

Payton v. New York, 445 U.S. 573 (1980) .......... ccc ccc ceeees 16

People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936 (1980),

cert. denied, 451 U.S. 987 (1981)............. 5, 22. 24. 27

Pinkus v. United States, 436 U.S. 293 (1978),

rev g on other grounds, 551 F.2d 1155 (9th Cir. 1977)... .19

Poe v. Ullman, 367 U.S. 497 (1961) ....... ccc ccc ccccccccces 9, 21

Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985) ........... 12

Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878).... 11. 12. 16

Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984) ....28

Roberts v. United States Jaycees, 104 S. Ct. 3244 (1984) ..... 8, I

Rochin v. People of California, 342 U.S. 165 (1952) ..............5

Roe v. Wade, 410 U.S. 113 (1973) .. pwedhebabedededeces . passim

of eR 17, 20

Roth v. United States, 354 U.S. 476 (1957) ..... 0.0... cece eee 16, 29

Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187 (1974) .... 26, 28

Snyder v. Commonwealth of Massachusetts,

ee cc accwtcall

United States v. Orito, 413 U.S. 139 (1973). 0.0... ccc ccc cee eee 29

Wainwright v. Stone, 414 U.S. 21 (1973) ....... ccc ccc ccccccece 17

Wisconsin v. Yoder, 406 U.S. 205 (1972). .... 0... cece eee ee 9, 11

Zablocki v. Redhail, 434 U.S. 374 (1978) ..........005.5. 11, 13, 21

Statutes: Page(s)

es ee, GU, Et . . cccched cvusneceoccuedeewas soul

il

’

Other Authorities: Page(s)

a SE, I DUD oc bcs buwhee 06 ev cccbccccoceces 14

D. Bailey, Homosexuality and the Western Christian

Tradition (1955 & photo. reprint 1975) ........... 13,14

W. Blackstone, Commentaries ........ccccccccccccccecs

G. Buchanan, Same-Sex Marriage: The Linchpin Issue,

10 U. Dayton L. Rev. 541 (1985) ........... we 2¢

T. Calvani, Homosexuality and the Law—An Overview

EP ee ei nde ne cbetbetéeceone 15, 16, 17

i) Ge ceed cdecececkdebseee ceabe ste be 1S

R. Flaceliere, Love in Ancient Greece

ee ..14

M. Hunt, Gay: What You Should Know About

ee 24

K. Karst, The Freedom of Intimate Association,

RR ERE

Pe es EE ea Cecadc cut uadeadeucbebsosccece cee. 24

Note, The Constitutional Status of Sexual Orientation:

Homosexuality as a Suspect Classification,

Sees Mi SG PMCS hb deustecccsvesccccceree 17

PUI, EA ci cn cccudeccadonessy coccecnsceepdecsdcececesoes 13

D. Richards, Sexual Autonomy and the Constitutional Right to

Privacy: A Case Study in Human Rights and the

Unwritten Constitution, 30 Hastings L. J.

og ee ee Or er err —

J. Rizzo, The Constitutionality of Sodomy Statutes,

GS Pte B. EU. SOS TUTE cc cccewcccccecccecceces 16

W. Russell, A Treatise on Crimes and Misdemeanors,

EEE ES 14

R. Saphire, Gay Rights and the Constitution,

10 U. Dayton L. Rev. 767 (1985) ................. 25, 26

R. Slovenko, The Homosexual and Society: a Historical

Perspective, 10 U. Dayton L. Rev. 445 (1985) .......... 19

R. Slovenko, Sexual Behavior and the Law (1965) .............. 17

No. 85-140

IN THE

Supreme Court of the United States

October Term, 1985

MICHAEL J. BOWERS,

ATTORNEY GENERAL OF GEORGIA,

Petitioner,

Ve

MICHAEL HARDWICK, AND

JOHN AND MARY DOE,

Respondents.

ON WRIT OF CERTIORARI TO THE ELEVENTH

CIRCUIT COURT OF APPEALS

BRIEF OF THE RUTHERFORD INSTITUTE,

AND THE RUTHERFORD INSTITUTES OF ALABAMA,

CONNECTICUT, DELAWARE, GEORGIA, MINNESOTA,

MONTANA, TENNESSEE, TEXAS, AND VIRGINIA, AMICI

CURIAE, IN SUPPORT OF THE PETITIONER

INTEREST OF AMICI CURIAE.

The Eleventh Circuit opinion in this case raises serious

questions about the continued right of the States to legislate

‘Counsel of record for all parties have consented to the filing of this

brief and, pursuant to Rule 36, letters of consent have been filed with the

Clerk.

regarding the health, safety, and morals of their citizens.

The Rutherford Institute is concerned about the implications

for our social environment and tradition of family values.

Amici curiae are non-profit religious corporations with a

national office in Manassas, Virginia and state chapters in

Alabama, Connecticut, Delaware, Georgia, Minnesota,

Montana, Tennessee, Texas, and Virginia. The Rutherford

Institute undertakes to participate in significant cases

relating to First Amendment religious freedom and the

preservation of the traditional moral values of this society.

Counsel for amici curiae have specialized in constitutional

litigation in state and federal courts and have participated

as counsel for amici curiae before this Court. The Rutherford

Institute believes that the expertise of its counsel will be of

assistance in this case.

SUMMARY OF ARGUMENT

The principal issue before this Court is whether the

Georgia sodomy statute violates the constitutional right of

privacy recognized in Griswold v. Connecticut, 381 U.S.

479 (1965). The Court has previously held that in order for

decisions and activities to be included in the right of

privacy, they must be “ ‘fundamental’ or ‘implicit in the

concept of ordered liberty.” Roe v. Wade, 410 U.S. 113,

152 (1973) (cit. omitted). In Griswold, Roe v. Wade, and

numerous other decisions, this Court has followed the

principle that no right can be considered fundamental!

unless it is rooted in the history and traditions of our society

and is basic to our civil and political institutions.

The right of privacy has been carefully limited by this

Court to decisions and activities relating to marriage,

childbearing, and family. The right has been extended to

these areas because they are basic to our civil and political

institutions and, in our society, have historically and

traditionally been considered beyond the proper scope of

government regulations.

The practice of sodomy, even of a consensual and private

nature, should not be cloaked with the constitutional right

of privacy. The pursuit of such activity cannot be considered

a fundamental right because it is not basic to our political

and social institutions. A review of our history shows,

moreover, that such practices have never been considered to

be beyond the proper scope of government regulation. In

fact, our institutions are built on a foundation not only

different but totally inconsistent with such practices —

monogamous marriage and the family unit. Moreover, our

institutions would be eroded by the legitimization of

sodomy. Therefore, this Court should refuse to extend the

right of privacy to sodomy.

Should the Court recognize sodomy as protected by the

right of privacy, all private consensual activities — including

incest, polygamy, bestiality, etc. — would appear to be

legalized. In addition, a rejection of the historical analysis

previously employed by the Court to identify fundamental

rights would eliminate all restraint in interpretation of the

Fourteenth Amendment.

No equal protection issues are presented. If the Court

addresses such issues, it should conclude that the Georgia

Statute is subject to review only under the rational basis test.

The statute satisfies this text because it is rationally related

to the State’s legitimate interest in protecting and preserving

morality.

ARGUMENT

Il. INTRODUCTION

In this case, the Court is presented with “the difficult

question whether and to what extent the Constitution

prohibits state statutes regulating [ private consensual sexual}

behavior among adults.” Carey v. Population Services

International, 431 U.S. 678, 688 n.5 (1977). The Eleventh

Circuit has held that private consensual sodomy is protected

by the constitutional right of privacy. Based on this holding,

the court concluded that the Georgia sodomy statute’can be

upheld only if it is demonstrated that “the sodomy statute is

a properly restrained method of safeguarding [the State’s]

interests.” Harwick v. Bowers, 760 F.2d 1202, 1211 (11th

Cir. 1985).

Amici curiae undertake to show that the right of privacy

as developed in this Court’s previous decisions provides no

protection to the practice of sodomy. Because the Eleventh

Circuit based its decision on the constitutiona! right of

privacy, other constitutional issues — such as the equal

protection claim — will not be discussed in detail. Although

the general term “sodomy” will be used in this brief. it

should be taken as referring to homosexual sodomy

inasmuch as the constitutionality of the Georgia statute

only as it applies to homosexual sodomy is before the

Court. Both the district court and the Eleventh Circuit held

that the married plaintiffs lacked standing. As a result only

the claims of plaintiff Hardwick, an avowed homosexual

who does not assert the rights of any heterosexual or

married persons, are before the Court.

There have been a number of recent decisions on the

consistency of sodomy statutes with the constitutional right

of privacy. In Doe v. Commonweath’s Attorney for the City

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

U.S. 901 (1976), privacy, due process, and freedom of

expression attacks on the Virginia sodomy statute were

rejected. Two federal courts of appeals have recently

reached results consistent with Doe v. Commonwealth's

Attorney. Baker v. Wade, 769 F.2G 289, 292 (Sth Cir.) (en

banc), reh’g denied, 774 F.2d 1285 (Sth Cir. 1985) (uphold-

‘The operative language of the Georgia statute provides: “A person

commits the offense of sodomy when he performs or submits to any

sexual act involving the sex organs of one person and the mouth or anus

of another.” Off. Code Ga. Ann. § 16-6-2.

ing Texas sodomy statute); Dronenburg v. Zech, 741 F.2d

1388 (D.C.Cir.), reh’g denied, 746 F.2d 1579 (D.C. Cir.

1984) (upholding military discharge of homosexual). In

both cases, the courts refused to recognized private homo-

sexua! conduct as coming within the constitutional right of

privacy. The courts also rejected equal protection challenges.

A final decision in this area is People v. Onofre, 51 N.Y .2d

476, 415 N.E.2d 936 (1980), cert. denied, 451 U.S. 987

(1981), in which the New York Court of Appeals struck

down the sodomy statute of that state on privacy and equal

protection grounds.

Ii. ONLY FUNDAMENTAL RIGHTS, IMPLICIT IN THE

CONCEPT OF ORDERED LIBERTY AND HiSTORICALLY

AND TRADITIONALLY CONSIDERED BEYOND THE

PROPER SCOPE OF GOVERNMENT REGULATION, ARE

PROTECTED BY THE RIGHT OF PRIVACY.

This Court has previously recognized that there are

certain fundamental rights protected by the Due Process

Clause of the Fourteenth Amendment. In the words of Mr.

Justice Cardozo, speaking for the Court, due process of law

protects those rights which are “so rooted in the traditions

and conscience of our people as to be ranked as funda-

mental,” Snyder v. Commonweaith of Massachusetts, 291

U.S. 97, 105 (1934), or which are “implicit in the concept of

ordered liberty.” Palko v. State of Connecticut, 302 U.S.

319, 325 (1937). See Rochin v. People of California, 342

U.S. 165, 169 (1952) (quoting Snyder and Palko). When

such rights are restricted by state action, a necessary

relationship between the action and a compelling state

interest is required in order for the action to be upheld.

Griswold, 381 U.S. at 497.

In its decisions dealing with the right of privacy, which is

applied to the states through the Fourteenth Amendment,

this Court has been carefui to limit the scope of the right to

matters which can truly be characterized as fundamental. In

Roe v. Wade, 410 US. 113 (1973), the Court said that “only

personal rights that can be deemed ‘fundamental’ or

‘implicit in the concept of ordered liberty,’ . . . are included

in this guarantee of personal privacy.” /d. at 152 (cit.

omitted). In Paris Adult Theatre I v. Slaton, 413 U.S. 49

(1973), the Court quoted this language from Roe v. Wade in

hoiding that the right of privacy does not protect access by

consenting adults to obscene materials outside the home.

The Court said: “Nothing, however, in this Court’s decisions

intimates that there is any “fundamental” privacy right

“implicit in the concept of ordered liberty” to watch obscene

movies in places of public accomodation.” /d. at 65-66.

Under this analysis, it is not sufficient to find the right ot

privacy itself fundamental, but in addition all subsidiary

rights protected under the right of privacy must themselves

be fundamental.

In order for any right to be considered fundamental and,

therefore eligible for protection under the privacy guarantee,

it must be rooted in the history of our society and be basic to

our civil and political institutions. Two older decisions

which contribute to this princinie are Palko and Meyer v.

Nebraska, 262 U.S. 390 (1923). In Palko, the Court

Suggested that a search for rights protected

through the Fourteenth Amendment should focus on “ ‘the

fundamental principles of liberty and justice which lie at the

base of all our civil and political institutions.’” Palko, 302

U.S. at 328. Moreover, in Meyer the Court suggested that

“our institutions rest” upon certain fundamental rights

which include the right of parents to control the education

of their children. /d. at 400-02. More recently, in Duncan v.

Louisiana, 391 U.S. 145 (1968), the Court addressed the

question of fundamental rights in a criminal procedure

context. In concluding that the right to jury trial is

fundamental, the Court explored the historical role of sich

trials in the “Anglo-American regime of ordered liberty.”

Id. at 149 n.14.

In Griswold, the Court formally announced the right of

privacy. The Court held that a Connecticut statute which

forbade the use of contraceptives violated the constitutional

right of privacy of married persons. The Court located this

right in certain “penumbras” of the First, Fourth, Fifth, and

Ninth Amendments to the Constitution. 381 U.S. at 484.

Since Griswold, the Court has made it clear that it regards

the right of privacy as “founded in the Fourteenth Amend-

ment’s concept of personal liberty.” Roe v. Wade, 410 U.S.

at 153. In concluding that this right of privacy was violated

by the Connecticut statute, the Court emphasized that the

appellants had given information concerning contraception

to married persons. Griswold, 381 U.S. at 480. The Court

stated:

We deal with a right of privacy older than the Bill of

Rights — older than our political parties, older than

our school system. Marriage is a coming together for

better or for worse, hopefully enduring, and intimate

to the degree of being sacred.

Id. at 486. In a concurring opinion, Justices Goldberg,

Brennan, and Chief Justice Warren insisted that fundamental

rights must be derived from the “ ‘traditions and [collective]

conscience of our people.’ ” /d. at 493 (cit. omitted). They

went on to reemphasize the basic position of “the rights to

marital privacy and to marry and raise a family” in our

society and that the marriage and family relationship are

“as old and fundamental as our entire civilization.” /d. at

495-496.

In Roe v. Wade, the Court again committed itself to

historical analysis in determining what rights are funda-

mental and therefore protected by the right of privacy.

After an extensive survey of the medical and legal history of

abortion, the Court concluded that restrictive criminal

abortion laws were “of relatively recent vintage.” /d. at 129.

In concluding that a woman’s right to terminate her

pregnancy should be encompassed in the right of privacy,

the Court placed particular reliance upon its conclusion

that Anglo-American law had generally treated abortion

with less severity than the state statutes then in force. The

Court summarized: “It is thus apparent that at common

law, at the time of the adoption of our Constitution, and

throughout the major portion of the 19th Century, abortion

was viewed with less disfavor than under most American

statutes currently in effect.” Jd. at 140. See also id. at

157-158, 165. An essential premise in the Court’s reasoning

was its conclusion regarding the legal and medical history of

abortion. Justice Rehnquist’s dissent was based at least in

part on his view that the Court had misread this history. His

conclusion was that “the asserted right to an abortion is not

‘so rooted in the traditions and conscience of our people as

to be ranked as fundamental.’ ” Id. at 174 (Rehnquist J.,

dissenting) (cit. omitted).

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

(1977) (plurality opinion), the Court again indicated its

obedience to history in the development of the right of

privacy. The Court was faced with a city housing ordinance

which had the effect of forbidding a grandmother from

living in the same home with her son and two grandsons. In

a plurality opinion authored by Justice Powell, it was

concluded that the ordinance violated the Due Process

Clause of the Fourteenth Amendment. The decision was

based on an analysis of the importance of the family, both

extended and nuclear, in American society. The Court said:

“Our decisions establish that the Constitution protects the

sanctity of the family precisely because the institution of the

family is deeply rooted in this Nation’s history and tradition.”

Id. at 503. The plurality opinion emphasized that its

“approach [was] grounded in history,” id. at 503 n.12, and

that “arbitary lines” need not be drawn when there is

“careful ‘respect for the teachings of history [and] solid

recognition of the basic values that underlie our society.’ ”

Id. at 502-03, quoting Griswold, 381 U.S. at 501 (Harlan, J.,

concurring). See also Roberts v. United States Jaycees, 104

S. Ct. 3244, 3250 (1984) (discussing historical importance

and constitutional protection of the “personal affiliations

that attend the creation and sustenance of a family.”)

In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court

again emphasized the importance of history in deciding

whether a privacy-related activity should be protected as a

fundamental right. Based on “(t]he history and culture of

Western civilization [which] reflect[s] a strong tradition of

parental concern for the nurture and upbringing of their

children,” the Court held that, under the First Amendment

guarantee of freedom of religion, Amish parents could not

be convicted of vilolating the Wisconsin compulsorary

school attendance statutes for failing to cause their children

to attend formal high school until the age of sixteen. /d. at

232.

Without the constraint and guidance of history in

discerning the fundamental rights protected against the

states, judges would be free to legislate their own preferences

at the expense of those of the American people as expressed

through their elected representatives. In Griswold, itself,

the Court recognized: “We do not sit as a super-legislature

to determine the wisdom, need, and propriety of laws that

touch economic problems, business affairs, or social conditions.”

381 U.S. at 482. In Poe v. Ullman, 367 U.S. 497 (1961),

Justice Harlan, in an oft-quoted dissenting opinion which

adumbrated the right of privacy, expressed concern that

fundamental rights analysis under the Due Process Clause

of the Fourteenth Amendment contained potential for

judicial abuse. However, Justice Harlan concluded that

such abuse would be prevented by respect for “what history

teaches are the traditions from which [this country] de-

veloped as well as the traditions from which it broke.” /d. at

542, quoted in Moore, 431 U.S. at 501. Also, as pointed out

above, the plurality in Moore repeatedly emphasized that

“careful ‘respect for the teachings of history’” is necessary in

order for appropraite limits to be placed on substantive due

process. 431 U.S. at 503.

10

Ill. THIS COURT HAS PREVIOUSLY LIMITED THE RIGHT OF

PRIVACY TO ACTIVITIES AND DECISIONS RELATING TO

MARRIAGE, CHILD BEARING, AND FAMILY BECAUSE

THESE MATTERS HAVE HISTORICALLY AND TRADITION-

ALLY BEEN CONSIDERED BEYOND THE PROPER SCOPE

OF GOVERNMENT REGULATION.

In keeping with the historical analysis described above,

the previous privacy decisions of the Court have carefully

limited the scope of the right to “matters relating to

marriage, procreation, contraception, family relationships,

and child rearing and education.” Paul v. Davis, 424 U.S.

693, 713 (1976). In Carey, the Court listed these same areas

along with supporting authorities. 431 U.S. at 684-85.

The list of protected decisions and activities given in these

decisions can readilv be simplified to three categories

marriage, child bearing, and family. Although Griswold

was concerned with the use by married persons of contracep-

tives, 381 U.S. at 480, 485-6, the Court has since recognized

the application of the right of privacy to activities and

decisions of unmarried persons as they relate to child

bearing or procreation. Roe v. Wade, 410 U.S. 113

(abortion) (plaintiff was an unmarried female); Eisenstadt

v. Baird, 405 U.S. 438, 413 (1972) (decided under Equa!

Protection Clause) (“the decision to bear or beget a child”);

Carey, 431 U.S. at 687 (“matters of child bearing”). It is

enlightening that in Carey the Court summarized Griswold,

as follows: “Read in light of its progeny, the teaching of

Griswold is that the Constitution protects individual de-

cisions in matters of child bearing from unjustified intrusion

by the State.” Carey, 431 U.S. at 687.

The areas of marriage, child bearing, and family which

the Court has previously found to be encompassed by the

constitutional right of privacy have historically and

traditionally been free of government regulation. This

“ ‘freedom of personal choice in matters of marriage and

family life’ ” is beyond the reach of government regulation.

Akron v. Akron Center for Reproductive Health, Inc., 462

U.S. 416, 427 (1983), quoting Roe v. Wade, 410 U.S. at 169

(Stewart, J., concurring). The fundamental and basic role

of marriage and family in our society has been recognized

on many occasions by the Court. In Zablocki v. Redhail,

434 U.S. 374 (1978), in which a Wisconsin statute which

required certain persons to obtain a court order before they

could marry was invalidated, the “ourt summarized its

previous decisions in this area:

[T]he right to marry is of fundamental importance for

all individuals. Long ago in Maynard v. Hill, 125 U.S.

190 (1888), the Court characterized marriage as “the

most important relation in life,” id., at 205, and as “the

foundation of the family and of society, without which

there would be neither civilization nor progress,” id., at

211. In Meyer v. Nebraska, 262 U.S. 390 (1923), the

Court recognized that the right “to marry, establish a

home, and bring up children” is a central part of the

liberty protected by the Due Process Clause, id., at 399,

and in Skinner v. Oklahoma ex rel. Williamson, {| 316

U.S. 535 (1942), marriage was described as “funda-

mental to the very existence and survival of the race,”

316 U.S. at 541.

Id. at 384. The Court went on to conclude that the right to

marry is one of the “matters of family life” protected by the

right of privacy implicit in the Due Process Clause of the

Fourteenth Amendment. In Moore, the Court also dwelled

on the historical role of marriage and the family in America

society: “Our decisions establish that the Constitution

protects the sanctity of the family precisely because the

institution of the family is deeply rooted in this Nation's

history and tradition.” 431 U.S. at 503 (plurality opinion).

See also Wisconsin v. Yoder, 406 U.S. at 232-33; Roberts,

104 S. Ct. at 3250.

Anearly decision regarding the fundamental status of the

family not discussed in the above-cited cases is Reynolds v.

12

United States, 98 U.S. (8 Otto) 145 (1878). In Reynolds, the

Court affirmed a criminal conviction of a Mormon for

practicing polygamy and rejected an argument that Congress’

prohibition of polygamy violated the defendant's right to

freely exercise his religion. After surveying the history of

laws against polygamy and the history and role of

monogamous marriage in America society, the Court

concluded, “[I]t is within the legitimate scope of the power

of every civil government to determine whether polygamy

or monogamy shall be the law of social life under its

dominion.” /d. at 166. A few years later, the Court again

addressed polygamy in Church of Jesus Christ of Latter-

Day Saints v. United States, 136 U.S. | (1890). The Court

said that “(t]he state has a perfect right to prohibit

polygamy” because it is contrary to “the civilization which

Christianity has produced in the Western World.” /d. 49-50.

In a recent Tenth Circuit decision, Potter v. Murray City,

760 F.2d 1065, 1069 (10th Cir. 1985), Reynolds was

followed in rejecting a constitutional challenge under the

right of privacy to the Utah prohibition of polygamy. In

reaching its decision, the Court observed: “Monogamy is

inextricably woven into the fabric of our society. It is the

bedrock upon which our culture is built.” /d. at 1070.

It can be seen, therefore, that the right of privacy protects

monogamous marriage, child bearing, and the family from

governmental regulation because they have historically and

traditionally been basic to our society. As a result, they are

protected through the right of privacy implicit in the Due

Process clause of the Fourteenth Amendment.

These principles must now be applied to the issue before

the Court. The issue presented here is whether the private

consensual practice of sodomy has historically been free of

government regulation and whether sodomy is so basic to

our civil and political institutions as to be implicit in the

concept of ordered liberty. In other words, does the practice

of sodomy play the same or a similar role to that served by

13

monogamous marriage and family life, which are funda-

mental to our society, see Zablocki, 434 U.S. at 383-87, and

which the right of privacy is designed to protect? As the

following historical survey demonstrates, this question can

only be answered in the negative.

IV. TRADITIONALLY AND HISTORICALLY WESTERN

SOCIETY HAS CONSIDERED THE PRACTICE OF SODOMY,

EVEN OF A CONSENSUAL AND PRIVATE NATURE, AS

WITHIN THE PROPER SCOPE OF GOVERNMENT

REGULATION.

Laws forbidding the practice of sodomy, of which the

Georgia statute is an example, have a long history in

Western society. American laws against such practices can

be traced back to the Judeo-Christian Scriptures, Roman

law. the teachings of the Christian Church, and early

English common and statutory law.

The Jewish and Christian Scriptures unequivocably

condemn homosexual sodomy. Prior to the Mosaic Law,

the cities of Sodom and Gomorrah were condemned at least

in part because of the prevalance of homosexual practices.

Genesis 18:16-19:29. See also Jude 7. Under the Mosiac

Law. it was a capital offense for a man to lay with a male as

with a female. Leviticus 18:22; 20:13. Inthe New Testament,

the Apostle Paul condemned homosexual activities in

Romans 1:26-27;' I Corinthians 6:9-10; and I Timothy

1:8-10.

The Christian Church has followed the teachings of

Scripture in condemning homosexual practices. All of the

early church Fathers who spoke on the subject condemned

the practice. These included Tertullian, John Chrysostom,

Augustine, and Clement of Alexandria. See D. Bailey,

‘In this passage, Paul uses the phrase “against nature” which was later

used in the common law of England and found its way into the statutes

of many American states. This phrase was also used by Plato in a

passage criticizing homosexual relations. Plato, Laws, 8. 841. d

14

Homosexuality and the Western Christian Tradition, 82-85

(1955 & photo. reprint 1975). In addition, numerous

Christian Councils and Penitentials have condemned the

practice of homosexuality. /d. at 86-110. During the

medieval period, many Christian scholars and church

officials also condemned homosexual practices. /d. at 110-

20. Most notable was St. Thomas Aquinas. Summa

Theologica, I-11, Q. cliii, cliv., cited in Bailey, supra, at

115-19. Even today most Christian churches continue to

regard the practice of homosexuality as sin.

Ancient Greek and Roman attitudes should also be

mentioned. In ancient Greece, pederasty was commonly

practiced and homosexual love sometimes idealized. See R.

Flaceliere, Love in Ancient Greece (J. Cleugh trans. 1962).

However, there is no evidence that homosexuality met with

general social approval. /d. at 62-63. In fact, the poet

Aristophanes ridiculed homosexuals in his comedies.

Roman law is particularly important because of its

influence on English law. An early law was the Lex

Scantinia. Bailey, supra, at 64-66. Eventually, the Christian

emperors promulgated laws against sodomy. Of particular

importance were Justinian’s laws promulgated in 528 and

544. See Bailey, supra, at.70-81. As one authority says,

“Justinian through his Novellae and codification of the law,

played a considerable part in determining the Western

Christian attitude towards homosexual practices ‘

Bailey, supra, at 81.

English common and statutory law have historically

condemned the practice of sodomy. Around the end of the

13th Century, two complications, Britton and Fleta, de-

scribed sodomy as a capital offense. See 3 W. Russell, A

Treatise on Crimes and Misdemeanors 698 (1865 ed.) (Ist

ed. 1819); Bailey, supra, at 145-46. In 1533, an important

statute was enacted making sodomy a felony and transferring

authority over such cases from the ecclesiastical courts to

secular tribunals.° Other statutes were enacted in 1548,

*25 Hen. 8. c. 6.

15

1563. 1828, 1861, and 1886. In the third part of his

Institutes, Sir Edward Coke stated that sodomy was

“against the ordinance of the Creator and order of nature.”

He also stated that the method of execution should be by

hanging. 3 E. Coke, /nstitutes 58 (1644). Later, Sir William

Blackstone discussed the elements of and method of

execution for the “crime against nature” which he

characterized as “ofa still deeper malignity than rape” 4 W.

Blackstone, Commentaries 215-16.

It is not surprising then that the American colonies and

states. in addition to the recognition of sodomy as a

common law crime, enacted their own prohibitions of

sodomy. Many American jurisdictions have even used the

common law description “crime against nature” or

“buggery.” See T. Calvani, Homosexuality and the Law

An Overview, 17 N.Y.L.F. 273, 280-87 (1971). Because in

the case before the Court, the contention is made that the

practice of sodomy should be protected through the

Fourteenth Amendment, it is particularly significant to

consider American statutes which were in force in 1868,

when the Fourteenth Amendment was adopted. The exis-

tence of state statutes at and prior to that time indicates that

the Fourteenth Amendment was not intended to remove the

power of the states to prohibit sodomy. In 1868, it appears

that at least 34 of the 37 states in the Union, in addition to

several territories, had at some point enacted sodomy

statutes. See Appendix A. Note that the enactment of such

laws shortly after the adoption of the Amendment also

supports such an inference. It is unnecessary, however, to

include all statutes enacted or reenacted after 1868 because

the fact. as discussed below, that all American states still

had such statutes in force in 1961 shows that these statutes

have continuously been on the books.

Sop 2. 3 Edw. 6.c. 92, Eliz. 1, c. 17:9 Geo. 4, c. 31; 24 & 25 Vict. c. 100

(removing death penalty); 48 & 49 Vict. c. 69. See Bailey, supra, at

147-52. In 1967, English laws against consensual sodomy were repealed.

16

The existence of sodomy laws at the time of the adoption

of the Fourteenth Amendment is significant because this

Court has used a similar historical analysis, in other

contexts, in order to determine the meaning of a constitutional

provision. For example, in Roth v. United States, 354 U.S.

476 (1957), the Court reviewed various state laws against

libel, blasphemy, and profanity which were in force at the

time of the adoption of the First Amendment. The Court

concluded: “In light of this history, it is apparent that the

unconditional phrasing of the First Amendment was not

intended to protect every utterance.” /d. at 482. The Court

then cited several late 18th century and early 19th century

statutes and cases concerning obscenity. /d. at 483 n.13. The

materials cited by the Court to support the proposition that

obscenity was not intended to be protected speech within

the meaning of the First Amendment are certainly less

unanimous and less impressive than the above-cited his-

torical materials regarding the regulation of sodomy. Many

other examples of the use of the historical method to

determine the meaning of the Constitution could be cited.

E.g., Payton v. New York, 445 U.S. 573 (1980) (concerning

the Fourth Amendment): Reynolds, 98 U.S. (8 Otto) at 165

(regarding the practice of polygamy, the Court concluded:

“In the face of all this evidence, it is impossible to believe

that the constitutional guaranty of religious freedom was

intended to prohibit legislation in respect to this most

important feature of social! life.”)

The scope of statutes prohibiting “crimes against nature”

has been a matter of some controversy. It is generally

thought that the common law prohibition was limited to

copulation per anum. See Calvani, supra, at 276; J. Rizzo,

The Constitutionality of Sodomy Statutes, 45 Fordham L.

Rev. 553, 556-57 (1976). Many American jurisdictions

have, however, construed the common law language of

their sodomy statutes to include copulation per os. See

Calvani, supra, at 276-77, 280-87. Rizzo, supra, at 556-57.

17

This Court has in the past upheld convictions for copulation

per os under sodomy statutes which employ the common

law “crime against nature” formulation. Rose v. Locke, 423

U.S. 48 (1975); Wainwright v. Stone, 414 U.S. 21 (1973).

It appears that until 1961 all American states had

criminal statutes forbidding the practice of sodomy, even of

a private and consensual nature. See R. Slovenko, Sexual

Behvaior and the Law 83 (1965). However, a decriminal-

ization movement began in 1961 when Illinois made a

statutory change removing penalities from the consensual

and private practice of homosexual relations.See Calvani,

supra, at 278; Slovenko, Sexual Behavior and the Law,

supra, at 83. The next state to decriminalize private

consensual homosexual activity was Connecticut in 1971.

See Calvani, supra, at 278.

The decriminalization movement has gained considerable

monmentun since the change in Illinois law in 1961. At

present, it appears that 25 states and the District of

Columbia still have in force criminal statutes forbidding

private consensual sodomy. See Appendix B. The statutes

of the remaining states have been repealed or, ina few cases,

struck down by state courts. See Note, The Constitutional

Status of Sexual Orientation: Homosexuality as a Suspect

Classification, 98 Harv. L. Rev. 1285, 1285 (1985).

The conclusions to be drawn from this discussion of

history are obvious. American and Western society in

general have historically and traditionally forbidden through

criminal law the practice of sodomy. From the very outset

of our society, criminal law has regulated even private

consensual sodomy. Prior to the recent decriminalization

movement, there has never been a time when the practice of

private consensual sodomy has been considered beyond the

‘In the same cases, the Court rejected vagueness attacks on the

common law language “crime against nature.”

18

proper scope of government regulation. As the privacy

decisions of this Court establish, in our society various

“zones of privacy” have historically and traditionally

been considered fundamenta! and beyond government

reach. Roe v. Wade, 410 U.S. at 152. However, the practice

of sodomy, even in a private and consensual setting has

never been considered as coming within such a “zone of

privacy.”

The conclusion that the history and traditions of this

Nation do not support a right to the private consensual

practice of sodomy was also reached by Judge Gabrielli of

the New York Court of Appeals in his dissenting opinion in

Onofre. He said:

Scholars from Aquinas to Blackstone considered even

consensual sodomy to be as heinous as the crime of

rape [cits. omitted]. Indeed, as early as 1553, during the

reign of Henry VIII, England enacted statutes pro-

hibiting sodomy which became part of the American

common law at the time of the American Revolution

and were later embedied in the penal codes of the

various states. Thus, although some may take offense

at the persistence of the proscriptions against consensual

sodomy in our modern law, the fact remains that

western man has never been free to pursue his own

choice of sexual gratification without fear of State

interference. Consequently, it simply cannot be said

that such freedom is an integral part of our concept of

ordered liberty as embodied in the due process clause

of the Fifth and Fourteenth Amendments.

415 N.E.2d at 949 (emphasis added). See also Baker, v.

Wade, 769 F.2d at 292 (cbserving “the strong objection to

homosexual conduct, which has prevailed in Western

culture for the past seven centuries”).

Ona number of occasions, this Court has recognized that

in our society homosexual conduct is considered to be

19

perverse and deviant. This reinforces the conclusion that

historically and traditionally the practice of sodomy has not

been recognized to be within any protected zone of privacy.

In Boutilier v. Immigration & Naturalization Service, 387

U.S. 118 (1967), the Court construed language of the

Immigration and Nationality Act barring “{a]liens afflicted

with psychopathic personality” to include “all homosexuals

and other sex perverts.” /d. at 122. Beginning in Mishkin vy.

State of New York, 383 U.S. 502 (1966), the Court has held

in a number of cbscenity decisions that homosexuals are “a

clearly defined deviant sexual group” and that the prurient

appeal of material distributed to them may be “satisfied if

the dominant theme of the material taken as a whole

appeals to the prurient interest in sex of the members of that

group.” /d. at 508. See also id. at 509. In subsequent cases,

the Court has not wavered from this position. Pinkus v.

United States, 436 U.S. 293, 302 (1978), rev'g on other

grounds, 551 F.2d 1155, 1158-59 (9th Cir. 1977); Hamling v.

United States, 418 U.S. 87, 92-93, 127-30 (1974).

Vv. BECAUSE THE PRACTICE OF SODOMY, EVEN OF A

CONSENSUAL AND PRIVATE NATURE, HAS NEVER HIS-

TORICALLY OR TRADITIONALLY BEEN CONSIDERED

BEYOND THE PROPER SCOPE OF GOVERNMENT REGUL-

LATION, IT CANNOT BE CONSIDERED A FUNDAMENTAL

RIGHT APPROPRIATE FOR PROTECTION BY THE RIGHT

OF PRIVACY.

Because there has been no historical or traditiqna! zone

‘In 1974, the American Psychiatric Association (APA) eliminated

the general category of homosexuality from its Diagnostic and

Statistical Manual of Mental Disorders and replaced it with a category

called “sexual orientation disturbance” which applies only to “ego-

dystonic” homosexuality. The vote by APA members, which was hotly

contested, was prompted by demonstrations and disruptions staged by

homosexuals. The change in nomenclature has been severely criticized,

even by members of the Association. R. Slovenko, The Homosexual

and Society, a Historical Perspective, 10 U. Dayton L. Rev. 445, 449-51

(1985).

20

of privacy surrounding the practice of sodomy, it cannot be

considered a fundamental right appropriate for application

against the states through the Fourteenth Amendment. As

demonstrated above. the requisite historical basis for a

traditional right is lacking with respect to sodomy. The

conclusion is irresistable, therefore, that the practice of

private consensual sodomy cannot be regarded as a funda-

mental right protected through the Fourteenth Amendment.

In Rose v. Locke, 423 U.S. 48 (1975), this Court

specifically held that the Tennessee sodomy statute did not

implicate fundamental rights. In upholding a conviction

under the statute against a constitutional attack, the Court

said: “This is not a case in which the statute threatens a

fundamental right such as freedom of speech so as to call for

any special judicial scrutiny [cit. omitted].” Id. at 50 n.3.

This holding that sodomy statutes do not implicate funda-

mental rights is consistent with the Court's acknowledgment

in Roe v. Wade that is has never recognized “an unlimited

right to do with one’s body as one pleases.” 410 U.S. at 154.

The conclusion that sodomy statutes do not implicate

fundamental rights is reinforced by comments of some of

the members of this Court in previous decisions. In his well

known dissent in Poe v. Ullman, which foreshadowed the

development of the right of privacy, Justice Harlan specifi-

cally said that homosexual practices, even though “concealed

in the home” were a proper matter of state concern and

could be forbidden by the states. According to the Justice:

Yet the very inclusion of the category of morality

among state concerns indicates that society is not

limited in its objects only to the physical well-being of

the community, but has traditionally concerned itself

with the moral soundness of its people as well. Indeed

to attempt a line between public behavior and that

which is purely consensual or solitary would be to

withdraw from community concern a range or subjects

with which every society in civilized time has found it

necessary to deal. The laws regarding marriage which

provide both when the sexua! powers may be used and

the legal and societal context in which children are

born and brought up, as well as laws forbidding

adultery, fornication, and homosexual practices which

express the negative of the proposition, confining

sexuality to lawful marriage, form a pattern so deeply

pressed into the substance of our social life that any

Constitutional doctrine must be built upon that basis.

367 U.S. at 545, 46. Note that Justice Harlan not only found

that there is no fundamental right to the practice of homo-

sexuality, but in fact concluded that there is a fundamental

“pattern... deeply pressed into the substance of our social

life” against such practices. Later in his dissenting opinion,

the Justice repeated his position “that adultery, homosex-

uality, fornication, and incest . . . however privately

practiced” are subject to state proscription. /d. at 552-53.

Other pertinent comments can be found in Griswold,

Zablocki, and Carey. In Griswold, Justice Goldberg wrote

an opinion in which chief Justice Warren and Justice

Brennan joined. In this opinion, these Justices quoted a

passage from Justice Harlan’s dissenting opinion in Poe v.

Ullman, that “{a]dultery, homosexuality and the like are

sexual intimacies which the State forbids.” Griswold, 381

U.S. at 499. This passage was quoted in support of the

proposition that the Court’s holding in Griswold “in no way

interferes with a State’s proper regulation of sexual prom-

iscuity or misconduct.” /d. at 498-99. In his concurring

opinion in Zablocki, Justice Powell suggested that “[s]tate

regulations . . . includ[ing] bans on incest, bigamy, and

homosexuality, as well as various preconditions to marriage,

such as blood tests” should not be reviewed under a

“ ‘compelling state purpose’”, test. 434 U.S. at 399. Finally,

it should be mentioned that in Carey, supra, Justice

Rehnquist stated in a dissenting opinion that he regarded

Nm

Nm

Doe v. Commonwealth's Attorney, which upheld the

Virginia sodomy statute, as “definitively” establishing the

validity of criminal statutes prohibiting certain consensual

acts. Carey, 431 U.S. at 718 n.2.

Respondent cannot show that there is any fundamental

right to the private consensual practice of sodomy. As has

been demonstrated, the fundamental rights question cannot

be resolved by perusing the latest public opinion poll.

Rather, the question is whether this society recognizes a

right to the practice of sodomy which is fundamental in a

historical and traditional sense. After all, neither the

Constitution nor the Fourteenth Amendment was written

yesterday. The recent decriminalization movement, itself,

shows that historically and traditionally no fundamental

right has been recognized to the practice of sodomy. ° /f

historical and traditional attitudes had been tolerant of the

practice, no decriminalization movement would be needed.

Both of the major lower court decisions which hold that

sodomy is imbued with a right of privacy failed to apply the

historical analysis which this Court has used in its privacy

decisions. In neither Hardwick nor Onofre did the courts

address the issue of whether sodomy has traditionally and

historically been considered a fundamenta! right.

“The decriminalization movement also shows that the political

branches of government are responsive to changes in public morality

and consensus. When our political representatives are mandated by

their respective electorates to change the law in this area, presumably

they do so. That this has happened in some states certainly does not

establish any fundamental right to the practice of sodomy. Rather, it

simply shows that our representative government is working as

designed.

VI. ANY DEPARTURE FROM THE HISTORICAL ANALYSIS

EMPLOYED BY THIS COURT IN ITS PREVIOUS PRIVACY

DECISIONS WOULD SERIOUSLY UNDERMINE THEINSTI-

TUTIONS OF THIS NATION AND COULD LEAD TO THE

INVALIDATION OF ALL REGULATIONS OF PRIVATE

CONDUCT.

If this Court fails to reverse the Eleventh Circuit in this

case and steer the development of the right of privacy back

to the historical path previously set by the Court, the

stability and identity of this society will be eroded because it

has been built upon a foundation inconsistent with the

legalized practice of homosexuality. In addition, the integrity

of constitutional construction will suffer.

A number of enticing formulae have been proposed as

substitutes for the historical analysis which this Court has

previously prescribed for determining the scope of the right

of privacy. The nearest at hand is that of the Eleventh

Circuit in this very case. Although it is difficult to discern

the explanatory principle of the court’s decision, it appears

that the Eleventh Circuit would protect all “individual

decisions critical to personal autonomy” and their “public

consequences” which have to do with sexual activity of a

private and consensual nature. 760 F.2d at 1211. The court

also noted that for some people “the sexual activity in

question here serves the same purpose as the intimacy of

marriage” which was protected in Griswold. Hardwick, 760

F.2d at 1212. Thus, it appears that the Eleventh Circuit

would cloak with the right of privacy all private activities

which, for those involved, “serve[] the same purpose as the

intimacy of marriage.” The Eleventh Circuit has moved

from the original purpose of the privacy doctrine of

protecting the intimacy of marriage and family to the

protection of anything which might take the place of

marriage for the individual involved.’ This is a far cry from

*The degree to which private consensual sodomy serves the purpose of

marriage in this society is highly debatable. Of course, the fundamental

24

this Court’s teaching in Roe v. Wade, that “only personal

rights that can be deemed ‘fundamental’ or implicit in the

concept of ordered liberty . . . are included in this guarantee

of personal privacy.” 410 U.S. at 152 (cit. omitted).

The New York Court of Appeals has also proposed a new

rationale for the right of privacy. That court held in Onofre

that the right of privacy guarantees “a right of independence

in making certain kinds of important decisions, with a

concomitant right to conduct oneself in accordance with

those decisions, undeterred by governmenta! restraint.” 415

N.E.2d at 939. A search of the court’s opinion for a

governing principle which might be used to identify and

limit the decisions and conduct which are to be protected

yields only the conclusion that physical harm must be

shown in order to justify regulation of such matters.”

(Footnote 9 continued)

feature of marriage is a bilateral dependency and fidelity. Extreme

sexual promiscuity is a well-known featury of the “gay” sub-culture. See

M. Hunt, Gay: What You Should Know About Homosexuality 157

(1977) (“The average gay man has one thousand different sex partners

in a lifetime, most of whom are strangers and one-time partners. In

contrast, the average straight man has from five to nine sex partners ina

lifetime, most of them persons he cares about and has sex with

repeatedly.”)

In On Liberty (1859), John Stuart Mill argued that “the only

purpose for which power can rightfully be exercised over any member

of a civilized community against his will is to prevent harm to others.”

Id. at 10-11(1975 ed.). The manner in which American courts have been

influenced by Mill is astounding. For example, in Commonwealth v.

Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), the Pennsylvania Supreme

Court quoted Mill in concluding that the Pennsylvania sodomy statute

denied equal protection. 415 A.2d at 50-51. The Fourteenth Amendment

of the Constitution may incorporate many things, but it does not

incorporate the libertarian ideals of Mill. See Paris Adult Theater I v.

Slaton, 413 U.S. 49, at 68 n.14 (1973) (expressly rejecting Mill’s views

with respect to “the proposition that conduct involving consenting

adults only is always beyond state regulation”).

A number of commentators also propose new approaches

to the right of privacy. For example, Professor Richard B.

Saphire suggests as the “seeds of a guiding principle” the

following: “Those decisions that ‘fundamentally affect the

person’ and necessarily implicate human ‘emotions and

sensations’ in deep and profound ways are entitled to at

least some measure of constitutional protection.” Saphire,

Gay Rights and the Constitution, 10 U. Dayton L. Rev. 767,

787-88 (1985). Another matrix for deciding what should be

protected by the right of privacy is offered by Professor

David A. Richards:

We have proposed a theory of the form of consider-

ations which must be assessed [sic] considering issues

involving the constitutional right to privacy, namely,

(1) whether, in the light of contemporary evidence,

there is any good moral reason to believe that certain

conduct, traditionally conceived as morally wrong, is

wrong at all; (2) whether the conduct relates to basic

life plan choices; and (3) consequent on (2), whether

paternalistic considerations are radically inappropriate.

Richards, Sexual Autonomy and the Constitutional Right

to Privacy: A Case Study in Human Rights in the Unwritten

Constitution, 30 Hastings L. J. 957, 1014 (1979) (emphasis

in original). See also K. Karst, The Freedom of Intimate

Association, 89 Yale L.J. 624, 625 (1980).

For the Court to follow of any of the suggestions

mentioned above, including that of the Eleventh Circuit in

this case, would constitute a total departure from the

historical approach employed in the Court’s previous

privacy decisions and would amount to acceptance of the

proposal declined in Roe v. Wade, that “one has an

unlimited right to do with one’s body as one pleases.” 410

U.S. at 154. A rejection of the tether of history would also

constitute a renunciation of any restrictions on judicial

decisions in this area. Such a departure would represent an

26

unprincipled effort “to keep the Constitution in tune with

the times,” Griswold, supra, at 522 (Harlan, J., concurring),

without regard to the amending process and the responsi-

bilities of the political branches. It would also seriously

undermine the integrity of constitutional construction.

If the restraints of the historical approach are rejected

and the right of privacy is extended to protect all private,

consensual, and seemingly non-harmful activities, the very

foundations of this society will be shaken. As was discussed

previously, this Court has on many occasions recognized

the fundamental role of monogamous marriage and the

family unit in American society. Not only does the unregu-

lated practice of sodomy not lie at the base of all our

institutions, but our institutions are built on a foundation

which is incompatible with such practices—1.e., monogamous

marriage and the family unit.

Any decision treating the practice of sodomy as con-

stitutionally protected would inevitably carry additional

baggage. There is already a building clamor from some

quarters for the legalization of homosexual marriages. '

Judge Bork expressed his fear in Dronenburg, that the

protection of homosexual! conduct through the right of

privacy will lead to the protection of all private sexual

behavior:

We would find it impossible to conclude that a right to

''In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal

dismissed, 409 U.S. 810(1972), and Singer v. Hara, 11 Wash. App. 247,

§22 P.2d 1187 (1974), it was concluded that the refusal of the respective

states to issue marriage licenses to homosexual couples did not violate

constitutional rights. The issues are discussed in G. Buchanan, Same-

Sex Marriage: The Linchpin Issue, 10 U. Dayton L. Rev. 541 (1985).

See also Saphire, supra, at 790 (“There is no reason in either logic or

human nature why these human capacities and aspirations cannot be

developed and expressed in other forms of society than a traditional

heterosexual marriage. Consequently, there is no convincing rationale

for limiting the right to privacy to the traditional marriage.”)

27

homosexual conduct is “fundamental” or “implicit in

the concept of ordered liberty” unless any and all

private sexual behavior falls within those categories, a

conclusion we are unwilling to draw.

741 F.2d at 1369. A similar fear was expressed by Judge

Gabrielli in his dissent in Onofre:

Moreover, if the only criterion for determining when

particular conduct should be deemed to be constitution-

ally protected is whether the conduct affects society in

a direct and tangible way, then it is difficult to perceive

how a State may lawfully interfere with such consensual

practices as euthanasia, marihuana smoking, prosti-

tution, and homosexual marriage. I very much regret

that the majority has failed in its discussion of the

“fundamental right” to perscnal autonomy to set forth

analytical framework for resolving difficult questions

such as these.

415 N.E.2d at 950 n.3.

These fears are well founded. A rejection of historical

analysis in favor of any of the tests proposed above,

including that of the Eleventh Circuit, would appear to

legalize polygamy, homosexual marriage, incest, necrophilia,

private use and possession of many controlled substances,

bestiality, fornication, adultery, and perhaps prostitution.

There are some who genuinely favor the legalization of such

activities, but the point here is not the desirability ve/ non of

legalization. The point is that the Court is not a “super-

legislature,” Griswold, 381 U.S. at 482, empowered to

adjudicate according to the personal preferences or political

agendas of its members or any other persons or institutions.

Instead, the Court’s job is to expound the Constitution. As

has been demonstrated, no responsible analysis of the

Fourteenth Amendment can include the practice of sodomy

in the right of privacy. Any appropriate changes to this

Georgia statute should be made by the Georgia legislature,

ee

28

which is responsible to the citizens of that State. See Doe v.

Commonwealth's Attorney, 403 F. Supp. at 1200, 1202;

Baker v. Wade, 774 F.2d at 1286-87; Dronenburg, 741 F.2d

at 1397 (“if the revolution in sexual mores that appellant

proclaims is in fact ever to arrive, we think it must arrive

through the moral choices of the people and their elected

representatives, not through the ukase of this court.”)

VI. THE GEORGIA SODOMY STATUTE SHOULD NOT BE

INVALIDATED UNDER THE EQUAL PROTECTION

CLAUSE INASMUCH AS IT IS REASONABLY RELATED

TO A LEGITIMATE STATE INTEREST.

Since the Eleventh Circuit based its decision on the right

of privacy, amici curiae assume that no equal protection

issue is before the Court. If, however, the Court should

address equal protection issues, it is the position of these

amici curiae that no form of strict or heightened scrutiny

should be employed. This case is not appropriate for the

application of either the fundamental rights or the suspect

classification branch of strict scrutiny. For the reasons

presented above the Georgia statute does not burden

fundamental rights. Moreover, the statute does not involve

a suspect or quasi-suspect classification so as to trigger

heightened review. A number of lower court decisions have

held that homosexuality is not a suspect or quasi-suspect.

classification. See Rich v. Secretary of the Army, 735 F.2d

1220, 1229 (10th Cir. 1984); National Gay Task Force v.

Board of Education, 729 F.2d. 1270, 1273 (10th Cir. 1984);

Hatheway v. Secretary of the Army, 641 F.2d 1376, 1382

(9th Cir. 1981), cert. denied, 454 U.S. 864 (1981); DeSantis

v. Pacific Telephone & Telegraph Company, 608 F.2d 327

(9th Cir. 1979); Singer, supra, 522 P.2d at 1192. Therefore,

state action based on homosexual classifications should be

evaluated only under a rational basis test. In Doe v.

Commonwealth's Attorney, 403 F. Supp. at 1202; Baker v.

Wade, 769 F.2d at 292; and Dronenburg, 741 F.2d at 1397-

98, the rational basis test was employed.

Although the case before the Court has never been tried

and the State has had no opportunity to present evidence

regarding the interests served by the statute, it can be

judicially noticed that the statute is rationally related to the

State’s legitimate interest in preserving and protecting

morality.” As this Court has held in other contexts,

legislative bodies may act “to protect ‘the social interest in

order and morality.’” Paris Adult Theatre I, 413 U.S. at 61,

guoting Roth, 354 U.S. at 485 (cit. omitted) (emphasis

added by Court in Roth). See also Paris Adult Theatre 1,

413 U.S. at 59-60 (“there is a ‘right of the Nation and of the

States to maintain a decent society’ ”) (cit. omitted); United

States v. Orito, 413 U.S. 139, 144 (1973), quoting North

American Co. v. SEC, 327 U.S. 686, 705 (1946) (“Congress

may impose relevant conditions and requirements on those

who use the channels of interstate commerce in order that

those channels will not become the means of promoting or

spreading evil, whether of a physical, moral or economic

nature.”)

"The extraordinary health risks which accompany homosexual

practices are well known. These include the current epidemic of

Acquired Immune Deficiency Syndrome (AIDS). It appears that

factual development would be necessary before the relationship, if any,

between the Georgia statute and the reduction of such risks could be

evaluated.

30

CONCLUSION

For the above-stated reasons, the judgment of the

Eleventh circuit should be reversed.

Respectfully Submitted,

George M. Weaver

Counsel of Record

William B. Hollberg

Wendell R. Bird

John W. Whitehead

The Rutherford Institute

9411 Battle Street

Manassas, Virginia 22110

APPENDICES

APPENDIX A

Apart from the recognition of sodomy as acommon law crime, the

_ following jurisdictions had enacted sodomy statutes prior to the

adoption of the Fourteenth Amendment in 1868":

Alabama (1819)

Aiken’s Digest of Alabama Laws, Penal Code, c. 6, § 7, p. 239

(Supp. 1841).

Ala. Code, Art, 5, § 3235 (1852).

Arizona (Terr.)

Howell Code, c. 10, § 48 (1865).

Arkansas (1836)

Ark.Rev.Stat., c. 44, div. III, Art. IV, § 3, p. 245 (1837).

California (1850)

Cal. Sess. Laws, c. 99, § 48 (1849-50)

Colorado (Terr.)

Colo.(Terr.)Rev.Stat., c. 22, §§ 45, 46, p. 203 (1868); Colo.Gen.

Laws of Terr. of Colo., Ist Sess., § 46, p. 297 (1861).

Connecticut (1788)

Laws of Conn., Capital Laws, § 7 (1673).

An Act for the Punishment of Divers Capital and other

Felonies, p. 66 (1784).

Acts and Laws of the State of Conn., p. 182, para. 2 (1796).

Conn. Rev.Stat., tit. 6, c. 7, § 77, p. 237 (1849).

Conn.Rev.Stat., tit. 6, c. 7, § 77, p. 323 (1854).

Conn.Gen.Stat., tit. 12, c. 7, § 124, p. 265 (1866).

Delaware (1787)

Laws of 1719, c. 22, § 5, The First Laws of the State of

Delaware 67 (J. Cushing ed. (1981).

Del. Rev.Stat., tit, 20. c. 131, § 7, p. 485 (1852).

Florida (1845)

Act of Mar. 5, 1842, § 1, Digest of the Statute Law of the

State of Florida, div. 4, tit. 1, c. 7, § Il, p. 500

(Thompson 1847).

* Dates of admission to the Union are indicated in parentheses

Georgia (1788)

Ga.Pen.Code of 1816, Sth Div., §§ 35-36, Compiled Laws

1810-1819, p. 571 (Lamar 1821).

Ga.Pen.Code, div. 4, § 63 (1833), Digest of the Statute Laws

of the State of Georgia, p. 787 (Cobb 1851).

Code of Ga., pt. IV, tit. 1, div. IV, §§ 4251, 4252, 4255, pp. 824-25

(1861).

Ga.Rev.Code, §§ 4286, 4287, 4290, p. 841 (1867).

Kingdom of Hawaii

Hawaii Pen. Code, c. 13, § 9 (1850).

Ilinois (1818)

Ill.Rev.Code, Crim. Code. §§ 49, 50, pp. 132 (1827).

ill.Rev.Stat., Crim. Code, §§ 49, 50, pp. 179-180 (1833)

Ill.Rev.Stat., c. 30, div. 5, §§ 49, 50, p. 158 (1845).

Kansas (1861)

Kan.(Terr.)Rev.Stat., c. 53, § 7, p. 284 (1855).

Kan.Gen.Stat., c 31, § 231, p. 368 (1868).

Kentucky (1792)

Act of Feb. 10, 1798, § 4; Digest of the Statute Laws of

Kentucky, vol. 2, p. 1265 (Morehead & Brown 1834).

Ky.Rev.Stat., c. 28, art. 4, § 11, p. 249 (1852).

Ky.Rev.Stat., vol. |, c. 28, art. 4,§ 11, p. 381 (Stanton 1860).

Louisiana (1812).

La.Rev.Stat., Crimes and Offenses, § 5, p. 136 (1856).

Maine (1820)

Act of Feb. 19, 1821, Me..Laws, vol. I, c. 5, p. 61 (1821).

Me.Rev.Stat., tit. 12, c. 160, § 4, p. 685 (1840).

Me.Rev.Stat., tit. 11, c. 124, § 3, p. 684 (1857).

Maryland (1788)

Act of 1793, c. 57, § 10.

Act of Nov. 1809, c. 86; Revised Laws of Md., vol. 3, p. 460

(Maxcy 1811); Gen. Publ. Stat. vol. I, p. 575 (Dorsey

1840).

Md. Code, vol. 1, art. 30, § 201, p. 25! (1860).

Massachusetts (1788)

Body of Liberties of 1641

Code of 1648

Book of the General Laws and Liberties (Mass), p. 5 (1648).

Mass.Acts & Resolves, c. 133, § 1, p. 209 (1804-05).

Mass. Rev.Stat., pt. 4, tit. 1, c. 130, § 14, p. 741 (1836).

Mass.Gen.Stat., c. 165, § 18, p. 819 (1860).

Michigan (1837)

Act of 1816(Cass Code), §§ 4, 57; Laws of Terr. of Mich. 1805-

1825, vol. 1, pp. 109, 132 (1871).

Act of 1820(Cass Code), § 4; Laws of Terr. of Mich. 1805-1825,

vol. 1, p. 562 (1871).

Act of 1827 for Punishment of Crimes, § 4; Laws of Terr. of

Mich., pp. 444-45 (1833)

Mich. Rev.Stat., pt. 4, tit. 1, c. 8, § 14, p. 648 (1837-38).

Mich. Rev. Stat., tit. 30, c. 158, § 16, p. 682 (Green 1846).

Mich.Comp.Laws, vol. 2, c. 185, § 16(§ 5871), p. 1543 (1857).

Minnesota (1858)

Minn.(Terr.)Rev.Stat., c. 107, § 13, p. 520 (1851).

Minn. Rev.Stat., c. 100, § 13, p. 622 (1866).

Mississippi (1877)

Act of Feb. 15, 1839, Miss. Code, c. 64, tit, VII, § 20, p. 980

(Hutchinson 1848).

Miss. Rev.Code, c. 64, art. 238, p. 611 (1857).

Missouri (1821)

Mo.Rev.Stat., art. VIII, § 7, p. 206 (1835).

Mo.Rev.Stat., vol. 1, c. 50, art. VIII, § 7, p. 624 (1856).

Montana (Terr.)

Mont. (Terr.) Laws, Criminal Practice Acts, c. 4, § 44, p. 185

(1864)

Nebraska (1867)

Neb.(Terr.)Rev.Stat., Crim. Code, c. 4, § 47, pp. 599-600

(1866).

Nevada (1864)

Act of Nov. 26, 1861, Nev.Comp.Laws, vol. I, c. 55, § 2351, p.

565 (1861-73).

New Hampshire (1788)

Act of Feb. 8, 1791, N.H. Laws, pp. 269-70 (1785-96).

Act of June 19, 1812, § 5, N.H. Rev.Laws, p. 318 (1815).

New Jersey (1787)

N.J.Rev.Stat., tit. 8, c. 1, § 9, p. 259 (1847).

New York (1788)

N.Y.Rev.Stat., vol. 3, pt. 4, c. 1, tit. 5, art. 3, § 20, p. 970( 1858).

North Carolina (1789)

N.C. Rev.Stat., c. 34, § 6, p. 192 (1836-37).

N.C. Rev.Code, c. 34, § 6, p. 203 (1854).

Oregon (1859)

Ore. Rev.Stat., Crimes and Misdemeanors, c. 11, § 12, p. 235

(1855)

Act of Oct. 19, 1864, § 639, Ore. Code, vol. 1, Criminal Code.

tit. 2, c. 7, § 1874, p. 951 (1887).

Pennsylvania (1787)

Act of January 12, 1705-06, in Stat. at Large of Pa. from

1682-1801, vol. 2 (1700-1712), p. 183 (1896) (repealed

by Act of March 31, 1860, Pub.Law 451).

Act to Reform the Penal Lews of the State, § 2 (1790), in

Laws of the Commonwealth of Pa. vol. 2, p. 531 (1810).

Act of March 31, 1860, § 32, Pub.Law 392, in Digest of

Statute Law of Pa. 1700-1903, vol. 1, p. 1011 (Purdon

1905).

Rhode Island (1790)

Acts and Laws of the Colony of Rhode Island, p. 6 (1719).

R.I. Pub. Laws, p. 339 (1822).

R.I. Pub. Laws, Crimes and Punishments, § 90, p. 394 (1844).

R.1.Revy.Stat., c. 216, § 11, p. 544 (1857).

R.I.Gen.Stat., c. 232, § 12, pp. 553-54 (1872).

South Carolina (1788)

Act of 1712, pp. 465, 493, in Stat. at Large of S.C. 1682-1716,

vol. 2, p. 493 (Cooper 1837).

Tennessee (1796)

Tenn. Rev.Stat., Penal Laws and Penalties, § 17, p. 246(1831).

Tenn. Code, § 4843, p. 868 (1857).

Texas (1845)

Act of Feb. 11, 1860, p. 97; Tex.Rev.Stat., Penal Code, tit.

10, c. 5, art. 342, p. 46(1879); Digest of the Laws of Texas,

art. 2033, pp. 430-31 (Paschel, 2d ed. 1870).

Vermont (1791)

Act of Feb. 19, 1779, Laws of Vermont 1777-1780, p. 128

(A. Soule ed. 1964).

Virginia (1788)

Va.Code Revision of 1777. (See D. Malone, Jefferson the

Virginian 271-73 (1948) ).

Va. Code, tit. 54, c. 197, § 12, p. 740 (1849).

Code of Va., tit. 54, c. 196, § 12, p. 804 (1860).

W. Virginia (1863)

Before 1863, see Va. Code.

W. Va. Code, c. 149, § 12, p. 694 (1868).

Wisconsin (1848)

Wis.Rev.Stat., c. 139, § 15, p. 709 (1849).

APPENDIX B

The following state sodomy statutes are currently in force:

Ala. Code § 13A-6-65 (a) (3) (1982); Ariz. Rev. Stat. Ann. §§

13-1411, 1412 (Supp. 1984-1985); Ark. Stat. Ann. § 41-1813

(1977); D.C. Code Ann. § 22-3502 (1981); Fla. Stat. Ann. § 800.02

(West 1976); Off. Code Ga. Ann. § 16-6-2 (1984); Idaho Code §§

18-6605, 6606 (1979); Kan. Stat. Ann. § 21-3505 (Supp. 1984); Ky.

Rev. Stat. Ann. § 510.100 (Baldwin 1985); La. Rev. Stat. Ann. §

14:89 (West Supp. 1985); Md. Code Ann. art. 27, §§ 553, 554

(Supp. 1984); Mass. Ann. Laws, ch. 272, §§ 34, 35 (Michie/ Law.

Co-op. 1980); Mich. Comp. Laws Ann. §§ 750.338, 338a (West

1968); Minn. Stat. Ann. § 609.293 (West Supp. 1985); Miss. Code

Ann. § 97-29-59 (1973); Mo. Ann. Stat. § 566.090 (Vernon 1979);

Mont. Code Ann. § 45-5-505 (1985); Nev. Rev. Stat. § 201.190

(1979); N.C. Gen. Stat. § 14-177 (1981); Okla. Stat. Ann. tit. 21,§

886 (West 1983); R.1. Gen. Laws § 11-10-1 (1970); S.C. Code Ann.

§ 16-15-120 (Law Co-op 1985); Tenn. Code Ann. § 39-2-612

(1982); Tex. Penal Code Ann. § 21.06 (Vernon 1974); Utah Code

Ann. § 76-5-403 (Supp. 1983); Va. Code § 18.2-361 (1982).

CERTIFICATE OF SERVICE

I, GEORGE M. WEAVER, Attorney of Record for amici curiae

and a member of the Bar of the Supreme Court of the United States

certify that in accordance with the rules of the Supreme Court of the

United States I have this day served a true and correct copy of this Brief

Amici Curiae upon counsel of record for Petitioner and Respondent

by depositing copies of this brief in the United States mail with proper

address and adequate postage to:

Michael E. Hobbs

Senior Assistant Attorney General

The Department of Law

State of Georgia

132 State Judiciai Building

Atlanta, Georgia 30334

Laurence H. Tribe, Esq.

Professor of Law

Harvard Law School

Griswold 307

Cambridge, Massachusetts 02138

This ____ day of December, 1985.

George M. Weaver