The Supreme Court and the Right to Sexual Intimacy

In this new edition to the Landmark Law Cases and American Society series, law professor David A. J. Richards focuses on two cases in which the U.S. Supreme Court ruled on the constitutionality of laws that prohibited homosexual sex. After affirming such laws in the 1986 Bowers v. Hardwick case, the court took the extraordinary step of reversing itself just seventeen years later. Lawrence v. Texas not only overturned Bowers, but all thirteen state sodomy laws remaining in force. To understand this dramatic shift, Richards discusses the broader context of Supreme Court jurisprudence on issues of gender, sexuality, and the right to privacy. Indeed he argues that the sodomy cases must be understood within the context of the court's rulings on other forms of non-procreative sex involving contraception and abortion. He also examines how larger cultural forces, particularly the censoring of discussions of homosexuality, impacted these decisions.

Richards traces the right to privacy or "the human right to intimate life" back to the federalists, who, he argues, did not explicitly mention it in the constitution only because questions of marriage were matters left to the states (p. 41). Affirming this right, nineteenth-century abolitionists based their objections to slavery partly on the grounds that it abridged the marriage rights of slaves. Richards locates the right to privacy, then, both as one of the unenumerated rights protected by the Ninth Amendment and protected in the Due Process clause of the Fourteenth Amendment. But only in the 1960s did the court articulate this right when, in Griswold v. Connecticut, it invalidated a state law barring the use of contraception. In his decision, Justice Douglass, who married four times, idealized the institution, arguing, "marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred" (p. 46). Even while acknowledging the right of a married couple to use contraception in the privacy of their home, the court allowed that the state might limit this right if limiting it furthered a legitimate goal, suggesting that laws forbidding adultery, fornication, and homosexuality met this standard. Eight years later, in Roe v. Wade, the Supreme Court extended the right to privacy to a single woman seeking to terminate a pregnancy; but again the court established limits to this right, allowing more restrictions as the pregnancy progressed and the state's interest in protecting life increased. By the 1980s, when the Supreme Court affirmed the principles of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, the court was facing questions of whether that right extended to two men in the privacy of their own home.

Recognizing the importance of the right-to-privacy argument, gay activists had begun challenging sodomy laws almost immediately after Roe in 1973, but initially met defeat. Momentum seemed to be building as state after state eliminated its sodomy laws—more than half by 1979—finally catching up with most Western European countries, which had begun decriminalizing sodomy in the early nineteenth century. But after 1983, the momentum stopped, largely, Richards argues, because of the AIDS crisis. Some states even debated recriminalizing sodomy. At the same time, a strong antiabortion movement had emerged that sought to challenge Roe v. Wade. So when Michael Hardwick's case challenging Georgia's sodomy law reached the Supreme Court, it became a lightning rod in the cultural wars raging in America. Many conservative justices wanted to hear the case because they thought that overturning the Court of Appeals finding that the Georgia statute was unconstitutional would undermine Roe and the right to privacy. Other justices took the case because they thought they had the necessary five votes to extend the right to privacy to homosexuals. For both groups, the key swing vote was that of Justice Powell.

In the most compelling section of the book, based on recently released personal papers of former Supreme Court justices, Richards brings the reader...