Case Analysis: Bower V. Hardwick

Bowers v. Hardwick upheld the constitutionality of an anti-sodomy law in Georgia, which criminalized sodomy between consenting adults. The contested issue was whether the constitutional right of privacy encompasses homosexual sodomy between two consenting adults. Hardwick, the respondent, was charged for engaging in homosexual sodomy with an adult male in his home. The respondent filed a case in the Federal District Court to challenge the constitutionality of the Georgia anti-sodomy law. He asserted that the law violates the federal constitution and his right to privacy.

The district attorney dismissed the charges, stating that two men engaged in consensual sexual activity. Hardwick noted that, while the district attorney dropped the charges, he faced a risk of being charged when he engaged in sodomy in Georgia. The Eleventh Circuit Court of Appeals ruled in favor of Hardwick, stating that the anti-sodomy law violates the Ninth and Fourteenth Amendments. Bowers, the Georgia Attorney General, appealed the ruling, claiming that the decision was erroneous. The Supreme Court reversed the ruling and concluded that the constitution does not give citizens a fundamental right to engage in homosexual sodomy. In a 5-4 decision, the majority declared that consensual homosexual sex is not a fundamental right.

I disagree with White's decision because it harms homosexuals. Justice White held that the constitution does not protect homosexual sodomy and that the act is not rooted in American tradition and history. Justice White emphasized that the court’s recent history of upholding privacy rights against government intrusion did not extend to homosexuals. His argument was flawed because it negatively perceived homosexuals and denied them the protection of privacy rights guaranteed by the constitution. He declined to take into account the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment, claiming that doing so would make the court vulnerable and lose credibility. The refusal to consider the Fourteenth Amendment promoted negative stereotyping and discrimination of homosexuals. White’s argument did not see homosexuals as individuals worthy of equal protection and respect. The judge equated homosexual sodomy to obscenity, something that should be tolerated because it occurred between two consenting adults in private.

White demonized the private lives of homosexual individuals and defined them as sexual beings who were not protected by privacy rights. He attributed negative qualities to Hardwick based solely on his sexual orientation. According to White, it didn't matter whether the right to privacy was violated as long as Hardwick was a homosexual. The Georgia statute applied to both opposite-sex and same-sex individuals, but Justice White described the case as if it was an issue of whether the intimacy association of homosexuals was constitutional. The judge deprived homosexual individuals of the right to choose how to engage in intimate activities. Criminalizing homosexual sodomy demeans the lives of gay people and promotes discrimination of this population. Homosexual individuals have the same liberty interest as heterosexuals, and thus a selective application of Georgia law is unconstitutional and violates equal protection law. Although Georgia law did not single out homosexual individuals, it stigmatized this population.

Justice White stated that the fundamental right to privacy protecting homosexual individuals is facetious. The fact that Hardwick engaged in the act in a private home does not make it a fundamental right (3). White claimed that viewing homosexual sodomy in private homes as a fundamental right was expanding the due process clauses of the Fourteenth Amendment to new rights. The fundamental right is ambiguous, and there is no consensus on the acts that should be protected. However, Justice White's opinion that sodomy is not a fundamental right is too narrow and erroneous because it promotes discrimination against homosexuals. The right to privacy is a fundamental right, and all citizens deserve it regardless of their sexual orientation. Justice White misstated the issue by focusing on the fundamental right and ignoring the right to privacy. Homosexual acts between two consenting adults in private deserve the same protection as other private acts, such as abortion, because they do not harm others. The right to terminate a pregnancy is protected because it does not infringe on the rights of others, and the decision to become a parent can dramatically change an individual's self-definition. The fundamental right is a broad concept that protects all private acts that do not harm others. Citizens have a right to engage in homosexual sodomy in their homes without government interference because the act is done in private. The constitution stipulates that the private sphere of individual liberty is outside of government control. This promise extends to homosexual individuals. The rights to privacy cover all sexual matters, and thus homosexual sodomy deserves protection. The criminalization of homosexual sodomy infringes upon the fundamental right of intimate association, and thus, it is unconstitutional.

Justice White did not offer a sound argument because he criminalized sodomy when engaged in by homosexual individuals but not identical conduct by heterosexual couples. His opinion was contrary to precedent, inaccurate, inefficient, and manipulative. Justice White claimed that it did not matter that Hardwick's right to privacy was violated as long as he engaged in homosexual sodomy. The decision misunderstood the historical use of sodomy laws and normative reasons behind them. Sodomy laws were enacted for protection and morality, ensuring that sexual acts were heterosexual, consensual, and procreative (4). This shows that sodomy laws were biased because they were disproportionately applied to homosexuals. Although sodomy laws criminalized sodomy altogether, only homosexuals were prosecuted, violating the equal protection clause. Justice White focused on heterosexual normative reasoning only. He relied on the history of condemnation of homosexuality and supported his argument by citing historical and legal sources demonstrating that homosexual conduct is not in line with American tradition.

Justice White claimed that the fundamental rights to privacy, as protected by the Fourteenth Amendment, do not give gay adults the right to engage in sodomy. Thus, the Georgia sodomy statute was legal. He also argued that the fundamental rights to privacy protect intimate aspects of marriage and procreation. White maintained that the right to privacy should not be extended to consensual same-sex sexual activity because it has nothing to do with marriage, procreation, and family. From this perspective, White contended that privacy rights guaranteed by the constitution are only legitimate when attached to marriage, procreation, and family; hence, homosexual individuals enjoy no constitutional protection. He viewed homosexuals as sexual beings who play no role in marriage, family, and procreation. This line of reasoning is flawed because the right to privacy does not cover marriage only. White's opinion suggests that the purpose of the right to privacy is to protect traditional social institutions such as marriage and procreation. His view distorts the meaning of the right to privacy because it protects intimate relationships without requiring marriage. I agree with dissenting Justice Blackmun that the right to privacy protects citizens' liberty to make their own decisions about sexual relationships. The right of privacy does not simply protect marriage and family; it protects the freedom of individuals to enter into intimate associations and form their own families. Additionally, marriage and sex mean more than just procreation.

White's reasoning is flawed because it creates a negative image of homosexual individuals by disenfranchising them from intimate associations. I concur with the dissenting judge that the right to privacy protects the freedom of intimate association. Intimate associations have a lasting impact on individual identity. It is through these relationships people exercise their capacities for self-definition and moral independence. Furthermore, it is through intimate associations that human beings find pleasure, care, and emotional support. Therefore, individuals have a fundamental interest in exercising self-determination in their sexual relations with others. Voluntarily chosen intimate associations play an integral role in the development of independent identity. These associations must be chosen to contribute to the independent formation of identity. Given that individuals sustain and define themselves significantly through intimate associations with others, there are multiple correct ways of conducting these relationships. Homosexuals will not find satisfying relationships and develop themselves if they are not given the freedom to choose intimacy that does not align with the majority. The right to privacy and liberty gives citizens protection to decide how to engage in sexual relationships and to be free from the relationship preferences of the majority.

In my opinion, the court's decision harmed autonomy by failing to consider the free choice of individuals in sexual intimacy. The case demonstrates the extent to which the government can use fundamental rights to interfere with personal lives. Georgia's anti-sodomy law was seen as necessary for protection and morality, but it does not allow homosexuals to be autonomous persons with the right to privacy and liberty. I believe that an unconventional lifestyle should not be condemned as long as it does not infringe on the rights of others. Justice White's construction of homosexual identity and negative imagery create a barrier to social change. His unfair application of Georgia's anti-sodomy law, upheld by the Supreme Court, promotes discrimination. The court failed to recognize the privacy rights of homosexuals and treated the case as an issue of fundamental rights. A fundamental right is a broad concept that covers all private actions which do not harm the rights of others, making it illogical to apply this concept narrowly. The right to privacy prevents states from passing laws that prohibit individuals from choosing their intimate associations. Justice White did not enforce equal protection of the laws, resulting in a Georgia statute that harms homosexuals. In addition, a law that criminalizes intimate homosexual associations can impede the progress of the equality movement for gays. The Fourteenth Amendment protects personal decisions regarding intimate associations from state interference as long as they do not harm others. Justice White's stance is likely to pose challenges to government policies involving gay rights and privacy interests. Furthermore, the court's ruling could promote discrimination based on sexual orientation.

References

1. Bowers v. Hardwick, No. 85-140, 1986.

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