# Amicus Curiae Brief — Bowers v. Hardwick

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## Record

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

## Text

Supreme Court, U.S,
NO. 85-140 FILED

:, JAN 32 1968
N THE

Supreme Court of the United’ Sister” |

OctTosBer TERM, 1985

MICHAEL J. BOWERS,
ATTORNEY GENERAL OF GEORGIA,

Petitioner,
Vv.

MICHAEL HARDWICK AND JOHN AND MARY DOE,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF THE ATTORNEY GENERAL OF THE STATE

OF NEW YORK, JOINED BY THE ATTORNEY GENERAL

OF THE STATE OF CALIFORNIA, AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

JOHN VAN DE KAMP ROBERT ABRAMS

Attorney General of the Attorney General of the
State of California State of New York

6000 State Building Two World Trade Center

San Francisco, California 94102 Suite 45-08

(415) 557-0818 New York, New York 10047

(212) 488-7511

ROBERT HERMANN
Solicitor General
Counsel of Record

LAWRENCE S. KAHN
HOWARD L. ZWICKEL
CHARLES R. FRASER
SANFORD M. COHEN
Assistant Attorneys General
Of Counsel

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

CONCLUSION

TABLE OF AUTHORITIES

Baker v. Carr, 369 U.S. 186 (1962)..........

Beller v. Middendorf, 632 F.2d 788 (9th Cir.
1980), cert. denied, 452 U.S. 905 (1981) ...

Board of Regents v. Roth, 408 U.S. 564 (1972)...
Boyd v. United States, 116 U.S. 616 (1886) .

Briggs v. North Muskegon Police Department, 563
F. Supp. 585 (W.D. Mich. 1983), aff'd, 746
F.2d 1475 (6th Cir. 1984), cert. denied, ___
U.S. ___, 105 S. Ct. 3535 (1985)

Brown v. Board of Education, 347 U.S. 483
ee oc cs cess akcccccess

Buchanan v. Batchelor, 308 F. Supp. 729 (N.D.
Tex. 1970), vacated on other grounds, 401 U.S.
989 (1971) .. eis ee

Carey v. Population Services, International, 431
U. S. 678 (197 i 7 ) .@ ee

City of Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983)

City of New York v. The New Saint Mark’s
Baths, 1/8/86 N.Y.L.J., p. 6, col. 3 (Sup. Ct.
N.Y. Co.).... ere |

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

Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert.
denied, 393 U.S. 847 (1968)

10

10

10

Doe v. Commenwealth’s Attorney for the City of
Richmond, 425 U.S. 901 (1976). aff'g 403 F.
Supp. 1199 (E.D. Va. 1975)... Racteteaaarey

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

Eisenstadt v. Baird. 405 U.S. 438 (1972). aff'g,
429 F.2d 1398 (Ist Cir. 1970).......___

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

Hardwick v. Bowers. 760 F.2d 1202, reh’g
denied, 765 F.2d 1123 (llth Cir. 1985)

Hatheway v. Secretary of Army, 641 F.2d 1376
(9th Cir.), cert. denied, 454 U.S. 864 (1981)

Jacobellis v. Ohio, 378 U.S. 184 (1964)
Katz v. United States, 389 US. 347 (1967
Loving v. Virginia, 388 U.S. 1 (1967)
Meyer v. Nebraska, 262 U.S. 390 (1923)

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

(1977)
Olmstead v. United States, 277 U.S. 438 (19928)

Paris Adult Theatre | ». Slaton, 413 U.S. 49
(1973)

=

Payton ». New York, 445 U.S. 573 (1980)

Page

Page
People v. Onofre, 72 A.D.2d 268, 424 N.Y.S.2d
566 (4th Dept.), aff'd, 51 N.Y.2d 476, 434
N.Y.S.2d 947 (1980), cert. denied, 451 U.S. 987
ee rr Cre eee ee ree l, 2, 9,
10, 12,
14
People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d
914 (1983), cert. dismissed, 467 U.S. 246 (1984) . . yy)
Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. 8, 10
Poe v. Ullman, 367 U.S. 497 (1961) ........... 7
Prince v. Massachusetts, 321 U.S. 158 (1944)..... 8
Rochin v. California, 342 U.S. 165 (1952) .... 8
Roe v. Wade, 410 U.S. 113 (1973) ........ 7, 8, 9,
11, 12
Rose wv. Locke, 423 U.S. 48 (1975).......... 1]
Semayne'’s Case, 5 Coke’s Reports 91, 77 Eng.
Rep. 194 (K.B. 1603) ........ 7 | | 6
Skinner v. Oklahoma, 316 U.S. 535 (1942) 8
Smith v. Organization of Foster Families, 43]
Se Se EE 55 vice ane sha ben eeecnsey, rey 8
Stanley v. Georgia, 394 U.S. 557 (1969) oe |
10, 14

State v. Saunders, 75 N.J. 200, 381 A.2d 333
(1977) ..... Seal eee orb eae aia 7, a 10

Terry v. Ohio, 392 U.S. 1 (1968) Pas 7

West Virginia Board of Education v. Barnette.

319 U.S. 624 (1943) ............. 10, 14
Whalen v. Roe, 429 U.S. 589 (1977) . 5

Zablocki v. Redhail, 434 U.S. 374 (1978) 8.9

CONSTITUTION, STATUTES. REGULATIONS
AND *“!'LES

U.5.Const.: AmendmentI..................__.
Amendment IV ......................... .
pe ne

New York Executive Law § 63 (McKinney 1982) .
New York Penal Law § 130.38 (McKinney 1975) .
§ 255.17 (McKinney 1980)

New York Administrative Codes. Tit. 10, Subpart
I i 6 dob es ba bea Coecevk.

OTHER SOURCES

Coke, Third Part of the Institutes of the Law of
England (1644) ..................... ver

Gerety, Redefining Privacy, 12 Harv. Civ. Rts. —
Civ. Lib.L.Rev. 234 (1s FER

Hamilton, Federalist Papers, Number 84 (1788) . .
Hansard, Parliamentary History: XV...

Henkin, Privacy and Autonomy, 74 Colum.
L.Rev. 1410 (1974)......

Kinsey, Pomeroy & Martin, Sexual Behavior in
the Human Male, (1948) ....

Page

13

l]

13

vi

Page

Kinsey, Pomeroy, Martin & Gebhard, Sexual

Behavior in the Human Female, (1953) ....... 13
Note, On Privacy: Constitutional Protection for

Personal Liberty, 48 N.Y.U.L. Rev. 670 (1973) ll
1965 New York State Legislative Annual ..... iv 11, 12
1965 New York Laws, chapter 1030, chaptei

1037, chapter 1038............. oe ew nek 12
Proposed New York Penal Law (1964) .......... 1]
Sheretz, Acquired Immune Deficiency Syndrome:

A Perspective for the Medical Practitioner 69

Medical Clinics of North America 637 (1985) .. 14
State Temporary Commission on the Revision of

the Penal Law and Criminal Code, Hearings of

November 23, 24, and 25, 1964............ ll
The Petition of Right, 3 Charles I, c.I (1628) .. 6

Tuchman, The March of Folly, (1984) ..... ) 6

NO. 85-140

IN THE

Supreme Court of the United States

OcroBer TERM, 1985

MICHAEL J. BOWERS,
ATTORNEY GENERAL OF GEORGIA,

Petitioner,

v.
MICHAEL HARDWICK AND JOHN AND MARY DOE,
Respondents.

On Writ of Certiorari to thc United States
Court of Appeals for the Eleventh Circuit

BRIEF OF THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK, JOINED BY THE
ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA, AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

Robert Abrams, Attorney General of the State of New York,
and John Van De Kamp, Attorney General of the State of

California, submit this brief as amici curiae pursuant to Supreme
Court Rule 36.4.

In People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 47 (1980),
cert. denied, 451 U.S. 987 (1981), the New York Court of Ap-
peals held New York's criminal prohibition of consensual sodomy

unconstitutional on the grounds that it violated the rights of
privacy and equal protection guaranteed by the Fourteenth
Amendment. In People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d
514 (1983), cert. dismissed, 467 U.S. 246 (1984), the same court
struck down New York’s penal statute prohibiting loitering for
the purpose of engaging in consensual sodomy, holding that the
State may not punish inoffensive conduct anticipatory to sexual
acts conducted in private between consenting adults. These deci-
sions are consistent with basic constitutional principles limiting
the intrusion of the state into the intimate affairs of its citizens.
They have also removed a legal stigma from a large segment of
New York’s population.

Pursuant to their responsibilities as chief legal officers of their
states, N.Y. Exec. Law § 63 (McKinney 1982); Cal. Gov. Code
§ 12511; and their authority to protect the civil rights and liber-
ties of their states’ citizens, amici urge this Court to rule that
the Georgia statute criminalizing sodomy, Ga. Code Ann. § 16-6-2
(1982), implicates the right of privacy secured by the due pro-
cess clause of the Fourteenth Amendment and must serve a com-
pelling state interest to withstand constitutional scrutiny. A con-
trary decision could undermine the New York Court of Appeals’
decisions in People v. Onofre and People v. Uplinger and would
create a significant danger to the rights of New York’s citizens
to engage in sexual intimacy in their homes free from govern-
mental interference and official stigma.

STATEMENT OF THE CASE

Michael Hardwick was arrested by the Atlanta police on the
charge that he had violated Ga. Code Ann. § 16-6-2* by com-
mitting sodomy with a consenting male adult in the bedroom
of his own home. After a preliminary hearing in the state court,
the State of Georgia determined not to prosecute unless further
evidence developed.

Respondent Hardwick, together with John and Mary Doe, a
married couple, instituted this action for an order declaring un-
constitutional Georgia’s criminal sodomy statute. Petitioner moved
to dismiss the complaint for failure to state a claim upon which
relief could be granted. The district court dismissed the complaint
as to the Does on the grounds that they lacked standing. It also
dismissed Hardwick's claim, on the merits, relying on this Court's
summary affirmance in Doe v. Commonwealth's Attorney for
the City of Richmond, 425 U.S. 901 (1976), affg 403 F.Supp. 1199
(E.D. Va. 1975).

All three plaintiffs appealed to tae Court of Appeals for the
Eleventh Circuit. Hardwick v. Bowers, 760 F.2d 1202, rehg
denied, 765 F.2d 1123 (11th Cir. 1985). The Court of Appeals at-
firmed the district court’s judgment dismissing the Does’ claims
for lack of standing. 760 F.2d at 1206-07. It reversed the dismissal
of Hardwick’s claims, finding that Doe v. Commonwealth's At-
torney did not foreclose Hardwick's challenge to the statute, 760
F.2d at 1207-10, and that the statute implicated Hardwick's
privacy interests, which it held were accorded substantive pro-
tection by the due process clause of the Fourteenth Amendment.

* Ga. Code Ann. § 16-6-2 provides, inter alia:

(a) A person commits the offense of sodomy when he pertorms or submits
to any sexua! act involving the sex organs of one person and the mouth
or anus of another...

(b) A person convicted of the offense of sodomy shall be punished by im-
prisonment for not less than one or more than 20 years...

760 F.2d at 1210-13. Accordingly, the Court of Appeals remand-
ed the case to the district court with instructions that it consider
whether the State has a compelling interest in regulating con-
sensual sexual activity between adults occurring in the seclusion
of the home and whether Georgia’s statute is the most narrowly
drawn means of safeguarding that interest. 760 F.2d at 1213.

SUMMARY OF ARGUMENT

This Court has long recognized that the Constitution protects
the individual's independence in making important decisions con-
cerning intimate relationships. The purpose of this right of
privacy, consistent with other constitutional objectives, is to pro-
tect against governmental intervention in anc regulation of the
conduct of intimate relationships. The right of privacy is strongest
when it involves consensual sexual activities of partners to an in-
timate relationship which are conducted in the home. It creates
a barrier to governmental intrusion into the conduct of intimate
relationships.

Intimate sexual conduct in the home is constitutionally
distinguishable from public or commercial conduct. While a
statute which proscribes certain public or commercial conduct
may be sustained merely upon a showing that the conduct of-
fends the sensibilities of the majority, a statute such as Georgia's,
which reaches private and intimate sexual conduct, can be sus-
tained only upon a demonstration that it serves a compelling state
interest.

ul

ARGUMENT

THE GEORGIA STATUTE CRIMINALIZING
PRIVATE SEXUAL ACTS INTRUDES UPON PER-
SONAL PRIVACY AND CAN BE SUSTAINED ONLY
UPON A DEMONSTRATION THAT IT IS NARROW-
LY DRAWN TO FURTHER A COMPELLING STATE
INTEREST

This case presents the issue c ! whether a state may criminally
punish consenting adults who, in the seclusion of the home,
engage in sexual intimacies that the state regards to be immoral.
The New York State and Calitornia Attorneys General respect-
fully submit that the Court of Appeals correctly decided that the
Fourteenth Amendment requires that a statute that reaches con-
duct so intimate, even in the marital bedroom, must be narrow-
ly drawn to serve a compelling state interest

This Court has recognized that the Constitution protects “zones
of privacy” that safeguard the individual’s “interest in in-
dependence in making certain kinds of important decisions.”
Whalen v. Roe, 429 U.S. 589, 599-600 (1977). Nearly sixty years
ago Justice Brandeis wrote eloquently of the right of privacy that
is fundamental to American democracy:

The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness... They
sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations. They
conferred, as against the Government, the right to be
let alone — the most comprehensive of rights and the
right most valued by civilized man.

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis,
J., dissenting).

Respect for certain zones of privacy is not of recent origin. The
cardinal sanctity of the home was well accepted in pre-
Revolutionary English statutes and common law. See Payton v.
New York. 445 U.S. 573, 596-97 (1980). More than a century

before the American Revolution, Sir Edward Coke pronounced
that “a man’s house is his castle, and one’s home is to every man
the safest refuge,” Coke, Third Part of the Institutes of the Laws
of England, 162 (1644), repeating dicta from the King’s bench
in Semayne’s Case, 5 Coke's Reports 9la, 91b, 77 Eng. Rep. 194,
195-96 (K.B. 1603), that “the House of every one is to him his
Castle and Fortress, as well for his Defence against Injury and
Violence, as for his Repose...” Contemporaneously, Parliament
decreed, and Charles I agreed, that free citizens could not be
“compelled to receive [soldiers] into their houses, and thereto to
suffer them to sojourn....” The Petition of Right, 3 Charles I, c.
I (1628).

Later, the English Parliament sought to finance the Seven Years’
War against France (in America, the French and Indian War)
by imposing customs duties on the American colonies and excise
taxes in Britain, and the government collected duties and taxes
by entering homes under the infamous Writs of Assistance. The
colonists rebelled at these acts, Tuchman, The March of Folly,
131-32 (1984), while in Parliament William Pitt was inspired to
his immortal statement of principle:

The poorest man in his cottage may bid defiance to
all the force of the Crown. It may be frail; its roof may
shake; the wind may blow through it; the storms may
enter; the rain may enter — but the King of England
cannot enter; all his forces dare not cross the threshold
of the ruined tenement!

Hansard, Parliamentary History: XV 1307.

It is familiar history that the Crown’s abridgements of the sanc-
tity of the home were a profound motivating cause of the
American Revolution and of the Framers’ determination to found
a government of limited powers. Boyd v. United States, 116 U.S.
616, 625 (1886). The provisions of the Bill of Rights were writ-
ten to limit federal power, though federal power was already
limited as a power ceded in specifics only — to the extent that
many thought a Bill of Rights unnecessary. E.g., Hamilton,
Federalist Papers, Number 84 (1788). The power of the states,

however, was not inherently limited. Therefore, in applying the
Bill of Rights to the states through the Fourteenth Amendment,
the judiciary has construed its provisions to operate as effective-
ly against the general powers of the state. »s/against the specific
federal powers. “In a Constitution for a free people, there can
be no doubt that the meaning of ‘liberty’ must be broad indeed.”
Board of Regents v. Roth, 408 U.S. 564, 572 (1972).

The constitutional right to be let alone, which has its origins
in our common law traditions, Poe v. Ullman, 367 U.S. 497, 521,
n.12 (1961) (Douglas, J., dissenting), as well as our Revolutionary
experience, emanates from principles of limited government
which are central to the Bill of Rights. Thus, this Court or in-
dividual Justices

have found ... the roots of that right in the First
Amendment, Stanley v. Georgia, 394 U.S. 557, 564
(1969); in the Fourth and Fifth Amendment, Terry v.
Ohio, 392 U.S. 1, 8-9 (1968); Katz v. United States, 389
U.S. 347, 350 (1967); Boyd v. United States, 116 U.S.
616 (1886); see Olmstead v. United States, 277 U.S. 438,
478 (1928) (Brandeis, J., dissenting); in the penumbras
of the Bill of Rights, Griswold v. Connecticut, 381 USS.
at 484-485; in the Ninth Amendment, id., at 386
(Goldberg, J., concurring); or in the concept of liber-
ty guaranteed by the first section of the Fourteenth
Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399
(1923).

Roe v. Wade, 410 U.S. 113, 152 (1973).*

The Court has not placed any firm boundaries on this most
basic right. Carey v. Population Services, International, 431 U.S.
678, 684-85 (1977). Instead, it has defined the right on a case-
by-case basis in order to meet modern needs, exercising its judg-
ment “upon interests of society pushing in opposite directions.”

* In Roe v. Wade, the Court concluded that the right of privacy is an element
of liberty protected from state interference by the due process clause of the Four-
teenth Amendment. 410 U.S. at 153.

Rochin v. California, 342 U.S. 165, 171 (1952). Thus, the right
of privacy encompasses personal decisions relating to child rear-
ing and education, Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Meyer v. Nebraska, 267 U.S. 390 (1923); procreation, Skinner v.
Oklahoma, 316 U.S. 535 (1942): contraception, Carey v. Popula-
tion Services, Internationa’; Eisenstadt v. Baird, 405 U.S. 438.
453-54 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); mar-
riage, Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia,
388 U.S. 1, 12 (1967); family composition, Moore v. City of East
- Cleveland, 431 U.S. 494 (1977); abortion. City of Akron v. Akron
Center for Reproductive Health, Inc., 462 U.S. 416 (1983): Roe
v. Wade; and the possession of obscene materials in the home,
Stanley v. Georgia, 394 U.S. 557 (1969).

These decisions limit governmental intrusion into important
private relationships, and imposition of governmental norms on
individuals in matters concerning their intimate relationships.
While the decisions in Meyer and Pierce establish that the due
process clause protects a “private realm of family life which the
state cannot enter’, Prince v. Massachusetts, 321 U.S. 158. 166
(1944), they also stand for a broader principle. Under those deci-
sions, a State may not act “to foster a homogeneous people”, Meyer
v. Nebraska, 262 U.S. at 402, or “to standardize its children”. Pierce
v. Society of Sisters, 268 U.S. at 535. Similarly, in Moore v. City
of East Cleveland, the Court, while recognizing that it is the fami-
ly through which “we inculcate and pass down many of our most
cherished values, moral and cultural,” held that the due process
clause forbids the State from “standardizing its children — and
its adults — by forcing all to live in certain narrowly defined family
patterns.” /d., 431 U.S. at 504-06. See Smith v. Organization of
Foster Families, 431 U.S. 816, 843-44 (1977).

Recent decisions protecting the right to use and receive con-
traceptives, and to abortion, prevent the state from imposing a
majority judgment that sanctions only those sexual intimacies
that result in reproduction. When legislation prohibiting the use
of contraceptives was struck down in Griswold v. Connecticut
on the ground that it interfered with the marital relationship,
“a relationship lying within the zone of privacy created by several

fundamental guarantees”, 381 U.S. at 485, the Court recognized
the right “to make decisions with respect to the consequence of
sexual encounters and, necessarily, to have such encounters.” Peo-
ple v. Onofre, 51 N.Y.2d at 487, 434 N-Y.S. 2d at 950. A majority
of the members of this Court participating in Eisenstadt v. Baird
agreed that the right to engage in non-procreative sexual activi-
ty could not be limited to those who had entered into a mar-
riage relationship sanctified by the state:

It is true that in Griswold the right of privacy in ques-
tion inhered in the marital relationship. Yet the marital
couple is not an independent entity with a mind and
heart of its own, but an association of two individuals
each with a separate intellectual and emotional
makeup. If the right of privacy means anything, it is
the right of the individual, married or single, to be free
from unwarranted governmental! intrusion into mat-
ters so fundamentally affecting a person as the deci-
sion whether to bear or beget a child. See Stanley v.
Georgia, 394 U.S. 557 (1969).

405 U.S. at 453 (emphasis in original). See Carey v. Population
Services, International, 431 U.S at 686-89; Doe v. Duling, 603
F. Supp. 960, 967 (E.D. Va. 1985) (“[T]he constitutional right
to privacy extends to a single adult’s decision whether to engage
in sexual intercourse”). And Roe v. Wade and its progeny recognize
that the right of privacy is broad enough to encompass the deci-
sion of an individual woman, married or not, to have an abor-
tion, because the State should not be permitted to impose upon
the individual the intimate associations of marriage and family
by compelling her to bear a child.

The right of privacy, vigorously enforced by this Court as a bar-
rier to state efforts to require uniformity in the development and
conduct of intimate associations, prohibits the imposition of ma-
joritarian views concerning whom or when we may marry, Lov-
ing v. Virginia; Zablocki v. Redhail; how we exercise our physical
and emotional intimacies, Griswold v. Connecticut; Stanley v.
Georgia; whether and when to bear a child, City of Akron v.
Akron Center for Reproductive Health; Roe v. Wade; and what

}
Ss

10

ideas and values we pass on to our children, Meyer v. Nebraska;
Pierce v. Society of Sisters. It shares a common purpose with the
rights of speech and association protected by the First
Amendment:

If there is any fixed star in our constitutional constella-
tion, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion,
or other matters of opinion or force citizens to confess
by word or act their faith therein.

West Virginia Board of Education v. Barnette, 319 U.S. 624, 642
(1943).

Protection from governmental regulation of sexual conduct*
is especially appropriate when that conduct occurs in the home.
Given the pervasive Anglo-American legal, political and
philosophical concern during the colonial period for the sancti-
ty of the home, the founders of our Republic could not have con-
templated a government with authority to reach into the home
to regulate the conduct of intimate relationships. This Court so
recognized in Stanley v. Georgia, permitting Stanley to possess
and view in the privacy of his home materials that Georgia might
forbid him to possess or view so freely elsewhere: “Whatever may
be justifications for other statutes regulating obscenity, we do not
think they reach into the privacy of one’s home ....” 394 US. et
965. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 (1973)
(explaining Stanley as “a reaffirmation that ‘a man’s home is his

* Numerous courts, in addition to the Court of Appeals for the Eleventh Cir-
cuit, have found that acts of sexual intimacy are entitled to protection from
government regulation. E.g., Hatheway v. Secretary of Army, 641 F.2d 1376,
1384 (9th Cir.), cert. denied, 454 U.S. 864 (1981); Beller v. Middendorf, 632
F.2d 788, 807-10 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981); Cotner v.
Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847 (1968); Doe v. Dul-
ing, 603 F.Supp. at 966-69; Briggs v. North Muskegon Police Dept., 563 F Supp.
585 (W.D. Mich. 1983), aff, 746 F.2d 1475 (6th Cir. 1984), cert. denied, __
US, ___, 105 S.Ct. 3535 (1985); Buchanan v. Batchelor, 308 F Supp. 729 (N.D.
Tex. 1970), vacated on other grounds, 401 U.S. 989 (1971): People v. Onofre;
Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); State v. Saunders.
75 N.J. 200, 381 A.2d 333 (1977).

1]

castle’ ”); Griswold v. Connecticut, 381 U.S. at 485-86 (“Would
we allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to notions of privacy”). The home, and especially
the intimacy of sexual relations in the home, must be treated as
a “zone of prima facie autonomy, of presumptive immunity from
regulation....” Henkin, Privacy and Autonomy, 74 Colum. L. Rev.
1410, 1425 (1974).

In short, private consensual sexual conduct, which implicates
both the kinds of personal decisions previously protected by this
Court and the protected zone of the home, is shielded by the right
of privacy from governmental intrusion.* The presumption that
sexual conduct in the home is immune from regulation is not easi-
ly overcome; the constitutional privacy and autonomy cases re-
quire a compelling state interest. Roe v. Wade, 410 U.S. at 155;
Eisenstadt v. Baird, 405 U.S. at 463-64 (White, J., concurring).
Close judicial scrutiny is especially appropriate to protect the
privacy rights at issue here because of the “unreliability of the
political process in regard to them.” Henkin, 74 Colum. L. Rev.
at 1429; see Baker v.Carr, 369 U.S. 186 (1962).**

* Application of privacy protection to consensual adult sexual conduct in the
home or similar place of seclusion will not undermine legislation regulating
public or coercive sexual conduct. Public sexual conduct, even by consenting
adults, regardless of their sex or marital status, is a legitimate subject of govern-
menta! regulation, Paris Adult Theatre I v. Slaton, 413 U.S. at 66, n.13; see Note,
On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670,
725-26 (1973). Similarly, conduct involving physical harm or coercion may
legitimately be proscribed by the state. See Rose v. Locke, 423 U.S. 48, 50, n.3
(1975).

** The experience of New York State is instructive. A blue-ribbon panel of
legislators and constitutional scholars charged with re-codification of the New
York Penal Law proposed a code which smitted the provisions that had
criminalized consensual “sodomy” and “adultery.” At subsequent public hear-
ings, the panel unanimously defended the omissions against religious and moral
attacks on the ground that such provisions invade “private morality” and serve
“no salutary purpose.” Proposed New York Penal Law, 343-44 (1964); 1965 New
York State Legislative Annual 51-52; State Temporary Commission on the Revi-
sion of the Penal Law and Criminal Code, Hearings of November 23, 24, and

(footnote continued)

12

The State’s desire to impose a standard of morality does not
suffice. This is so because governmental intrusion into intimacies
conducted in the home does not “advance the concept of public
morality or do anything other than restrict individual conduct
and impose a concept of private morality chosen by the State.”
People v. Onofre, 51 N.Y.2d at 490, 434 N.Y.S.2d at 952. Neither
the length of time that the majority has held its moral convic-
tion nor the passion with which it has expressed it withdraw
legislation enforcing it from this Court’s scrutiny.” For, if those
considerations required judicial restraint, laws implementing long
and deeply held sentiments favoring criminalization of contracep-
tion or abortion, or, indeed, favoring racial segregation in marital
relations or education would be immune from review under the
Fourteenth Amendment. See Griswold v. Connecticut; Roe v.
Wade; Loving v. Virginia; Brown v. Board of Education, 347
U.S. 483 (1954).**

25, 1964, 464-65, 642, 650, 652. In order to gain passage for the much needed
code revision, New York’s legislative leaders and Governor found it necessary
to restore the omitted provisions, see N.Y. Penal Law §§ 130.38 (McKinney 1975),
255.17 (McKinney 1980), stating that they were doing so without regard to the
“merits” of the reinstated provisions. 1965 New York Laws, chapters 1030, 1037
and 1038; 1965 New York Legislative Annual, 531. Judicial action, and strict
scrutiny of the statutory sections, was necessary to eliminate them. People v.
Onofre, 72 A.D.2d 268, 424 N.Y.S.2d 566 (4th Dept.), affd, 51 N.Y.2d 476, 434
N.Y.S.2d 947 (1980), cert. denied, 451 U.S. 987 (1981).

* In Roe v. Wade this Court acknowledged its “awareness of the sensitive and
emotional nature of the abortion controversy, of the vigorous opposing views,
... and of the deep and seemingly absolute convictions that the subject inspires”
but recognized that its task was “to resolve the issue by constitutional measure-
ment, free of emotion and of predilection.” 410 U.S. at LI6.

** The New York Court of Appeals in Onofre noted the view that consensual
sodomy is immoral and, as such, could be prohibited by the legislature. The
court held, however, that morality in personal decision-making, when the out
come creates no harm to anyone, may not be legislated:

We are not unmindful of the sensibilities of many persons who are

deeply persuaded that consensual sodomy is evil and should be pro-

hibited. That is not the issue before us. The issue before us is
(footnote continued)

13

The touchstone here is whether the intimate conduct is inno-
cent of “demonstrated harm.” Baird v. Eisenstadt, 429 F.2d 1398,
1402 (Ist Cir. 1970), aff'd, 405 U.S. 438 (1972); Gerety, Redefin-
ing Privacy, 12 Harv.Civ.Rts.-Civ.Lib.L.Rev. 234, 274-78 (1977).
This Court has recognized that the state’s moral judgment may
intrude upon the conduct of consenting adults only where the
conduct “has a tendency to injure the community as a whole,
to endanger the public safety, or to jeopardize the States’ ‘right
to maintain a decent society. ” Paris Adult Theatre I v. Slaton,
434 U.S. at 69 quoting Jacobellis v. Ohio, 378 U.S. 184, 199 (1964)
(Warren, Ch. J., dissenting). The Georgia statute unselectively
criminalizes and severely punishes not only the conduct involv-
ed here but other conduct widely regarded as innocent and engag-
ed in by a substantial majority of Americans. See Kinsey, Pomeroy
& Martin, Sexual Behavior in the Human Male, 371, 577 (1948);
Kinsey, Pomeroy, Martin & Gebhard, Sexual Behavior in the
Human Female 257-58, 588 (1953).* Enforcement of such a
statute regulating intimate, consensual conduct in the home may
breed contempt for the legitimacy of the law.

Recognition of privacy rights here will not preclude “closure
of bathhouses and sexually facilitating bars and parks....” Brief
of David Robinson, Jr., as Amicus Curiae in Support of Petitioner,
33-34. Treatment of public or commercial establishments which

whether, assuming that at least at present it is the will of the com-
munity (as expressed in legislative enactment) to prohibit consen-
sua! sodomy, the Federal Constitution permits recourse to the sanc-
tions of the criminal law for the achievement of that objective. The
community and its members are entirely free to employ theological
teaching, moral suasion, parental advice, psychological and
psychiatric counseling and other noncoercive means to condemn
the practice of consensual sodomy. The narrow question before us
is whether the Federal Constitution permits the use of the criminal
law for that purpose.

51 N.Y.2d at 488, n. 3, 434 N.Y.S.2d at 95], n. 3.
* “(N]o legislation or social taboos have been able to eliminate [non-reproductive

sexual conduct] from the history of the human animal.” Sexual Behavior in the
Human Male, at 578.

ere ae eee EEN Tee nD

14

promote and profit by promiscuous, anonymous sexual activity
is plainly distinguishable from regulation of consensual activity
in private homes, both as a matter of constitutional privacy pro-
tection and as a matter of public health. See, e.g., Sheretz, Ac-
quired Immune Deficiency Syndrome: A Perspective for the
Medical Practitioner, 69 Medical Clinics of North America 637
(1985) (“sexual promiscuity is probably the most important risk
factor”).* However, a statute that regulates sexual conduct in order
to further public health interests should be narrowly drawn to
further those interests. It is not likely that a statute that proscribes
private, sexual conduct in a relationship of even the most endur-
ing monogamy is one motivated by concern for the partners’ or
the public’s health or safety. See Carey v. Population Services,
International, 431 U.S. at 689-91; Eisenstadt v. Baird, 405 U.S.
at 451-52.

Those who urge this Court to defer here, under the principles
of “separation of powers” or “federalism”, see Pet. Br. at 31, to
the majoritarian judgment of state legislatures overlook the
wisdom expressed by the Framers in adopting the Bill of Rights:

The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political con- | gegempyee!
troversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles
to be applied by the courts. One's right to life, liberty
and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights
may not be submitted to vote; they depend on the out-
come of no election.

West Virginia Board of Education v. Barnette, 319 U.S. at 638.

* New York State, for instance, recognizes this distinction. Compare People v.
Onofre (holding “noncommercial private” sexual activity to be protected) with
City of New York v. The New Saint Mark’s Baths, 1/8/86 N.Y.L.J., p. 6, col.
3 (Sup. Ct. N.Y. Co.) (unreported decision sustaining N.Y. Admin. Code Tit.
10, Subpart 24-2 (1985), which authorizes closure of public establishments in
which “high risk sexual activity” is found to occur; relying on Paris Adult Theatre
! in rejecting challenges based on Griswold, Stanley and Onofre.)

ae

i5

It is the vigilant protection of personal liberty that is the ma-
jority’s will, for it has been the judgment of this Nation that the
freedom of all can be retained only if individuals are secured from
governmental intrusions into their intimacies. This majoritarian
value became part of our constitutional ethic when the states
adopted the command of the Fourteenth Amendment: “nor shall
any State deprive any person ... of liberty ... without due pro-
cess of law.” The Attorneys General of New York and California
respectfully submit that constitutional democracy is best served
by requiring states to demonstrate that compelling reasons exist
for intruding upon sexual intimacies in the home and that those
reasons are served by regulations narrowly drawn.

16

CONCLUSION

For the foregoing reasons, the judgment of the court below
should be affirmed.

Dated: New York, New York
January 31, 1986

JOHN VAN DE KAMP ROBERT ABRAMS

Attorney General of the Attorney General of the
State of California State of New York

6000 State Building Two World Trade Center

San Francisco, California 94102 Suite 45-08

(415) 557-0818 New York, New York 10047

(212) 488-751]

ROBERT HERMANN
Solicitor General
Counsel of Record

LAWRENCE S. KAHN

‘ HOWARD L. ZWICKEL
CHARLES R. FRASER
SANFORD M. COHEN
Assistant Attorneys General
Of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0873%3A18. Public record. Not legal advice.