# Amicus Curiae Brief — Bowers v. Hardwick

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0873%3A12

## Record

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

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0873%3A12. Public record. Not legal advice.