Amanda Seibald
September 11, 2004
On June 30th, 1986, the case of Bowers v.
Hardwick was decided. Noted as one of
the more controversial cases of its time it raised an endless list of questions
regarding homosexuality. More
importantly, however, were the questions brought up about how and where
homosexual acts should be conducted. The
arguments revolved mainly around moral and religious values yet both the
majority and the dissent touched upon the issue of privacy. It was here, on the subject of privacy, that
the opinions of the majority and the dissent took diverging paths.
Altogether, the majority feels that homosexual sodomy is
immoral, unacceptable, and against the Bible.
In addition, it argues that this specific incident falls into the
category of privacy that can indeed be reached by the government. Originally, it was decided that Georgia law
violated Hardwick’s fundamental rights because homosexuality is a private
behavior that is out of the hands of state regulation. Soon after, the Attorney General’s petition
was conferred for questioning the decision and eventually it was
overturned. In the opening opinion of
the Court, Justice White stated that even though the incident occurred in the
privacy of Hardwick’s home, that fact would not affect the result of this
case. This was previously declared in
the renowned 1969 case, Stanley v. Georgia, in which Stanley was excused from
reading obscene material in the privacy of his own home, simply because it was
done in his own home. Other famous cases
that were debated on the issue of privacy include Roe v. Wade, in which
abortion was the central issue, Pierce v. Society of Sisters, dealing with
education and child rearing, and Loving v. Virginia, regarding [interracial]
marriage. All of the abovementioned
cases were all decided favoring the Fourteenth Amendment. However, the majority did not feel that any
of these cases resembled Bowers v. Hardwick nor did they claim any
constitutional right to engage in homosexual sodomy. For this reason, the majority claimed that
homosexual sodomy should and could be regulated by the government.
On the other hand, the opposition clearly felt
otherwise. Although they agreed with the
majority that the matter at hand was indeed a privacy issue, the dissent claimed
that this incident is completely out of the state’s control. According to Justices Blackmun, Brennan,
Marshall, and Stevens, the Georgia statue denies the respondent the right to choose
what kind of sexual activity to engage in, if any at all. Together, the dissent also decided that
Bowers’ case was more about the invasion of privacy and “right of intimate
association.” The dissent also stated
that the Constitution guarantees that a certain area of individual liberty will
be kept beyond the government’s reach.
Entwined in this argument is the distinction between the facets of
privacy: decisional and spatial. Decisional
privacy refers to the right to make decisions that are appropriate for the
individual to make for himself. An
example of another case in which decisional privacy was protected was Roe v.
Wade, in which the right to choose to have an abortion was argued. Spatial privacy, however, refers to the
location at which the individual’s actions occur. It is here, on the issue of spatial privacy,
that the majority and the dissent strongly disagree. The case of Bowers v. Hardwick involves both
aspects of privacy; favoring the majority opinion would require the Court to go
against the Constitution in not only one way, but now two. According to the dissent, the fact that the
incident of homosexual sodomy took place in the privacy of Hardwick’s own home
should have a major impact on the decision of the case.
Evidently, Bowers v. Hardwick is one of the more
controversial cases of its time and paved the way to modern times. The issue of privacy was divided in two by
the majority and the dissent. This case
challenges the extent to which the Constitution can be interpreted and applied
in different societal situations. In
this instance, the debate is about privacy and its several aspects. Should the location of the occurrence have an
effect of the outcome of this case? Or
will it violate too many rights already granted by the Constitution? In Bowers v. Hardwick, the haziness and
elasticity of the law is demonstrated.
It is a perfect example of how different people react to different, and
new, controversial situations.
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