Jodi, Bill was asking for a cite concerning a case involving a heterosexual couple, not a case involving homosexual conduct. Is there such a case? I’ve heard this, too, but confess I don’t know if it’s a real case or not.
Personally, I’m frightened that people in power feel that we need some agency to confer upon us the right to engage in any consensual adult sexual behavior.
And yes, Wildest Bill, before the law was declared unconstitutional by the Georgia Supreme Court, we heterosexuals were at risk of prosecution as well. I don’t know of any cases where the cops peeped in a window to catch heterosexuals at play, but I do recall one case where a woman in a divorce case was asked whether she and her husband had engaged in sexual intercourse since their separation. She testified that they had engaged in oral sex, and IIRC, wound up being prosecuted for sodomy.
Jodi a point of clarification. My recollection is that in the Bowers case, the cop wasn’t specifically looking for a sodomy-in-progress. He was at the house on other business and happened to pass by an open door, where he chanced to observe the, er, prohibited act.
pldennison wrote:
Huh? Agency? What agency? Who said anything about any agency?
Spoke,
Although it is nearly identical verbiage, the Georgia Superme Court actually recognized “privacy” as a right flowing from the Georgia constitutional provision that no person shall be deprived of liberty except by due process of law in 1905, in Pavesich v. New England Life Insurance, 122 Ga. 190. We have thus been on notice for ninety-five years now that the protections afforded by the Georgia and U.S. Constitutions are not coextensive.
It is entirely within the province of the Georgia Supreme Court to interpret the protections that the Georgia Constitution affords to Georgians.
Now, I would much rather see the legislature amend the laws, rather than the court erase them by judicial fiat. But I cannot deny that ultimately, the Georgia Supreme Court has the authority to do just that, and if the Teeming Georgia Millions are sufficiently outraged at the prospect of free sodomy for all, I suppose they cam amend their constitution.
Interestingly enough, the Powell case did not start out being about sodomy. Anthony Powell was charged with rape and aggravated sodomy, for his actions with his seventeen-year-old niece. At trial, he testified that he had engaged in consensual intercourse and oral sodomy. The court, *sua sponte[/], instructed the jury on the law of sodomy. The jury aquitted Powell of the rape and aggravated sodomy, but convicted him of the sodomy charge. He appealed, claiming the sodomy law violated his right to privacy, and the Georgia Supremes agreed.
Freyr,
Just as the Georgia Supremes have every right to decide what the Georgia Constitution means, so, too, the U.S. Supreme Court has the final appellate authority on questions of what the Fourth and Fourteenth Amendment mean. They, too, have definitively spoken, and they have said that the Fourth and Fourteenth Amendments, or indeed any other parts of the U.S. Constitution, do not contain a right to sodomy among consenting adults. Unless “Freyr” is the pen-name of Justice Scalia, I suggest, Freyr, that your interpretation of what the Fourth Amendment guarantees you is of significantly less importance that the Court’s.
In short, the Bowers decision is good law, and does not “violate” the U.S. Constitution.
Bad word choice–replace “agency” with “authority.” For the Court to say:
really bothers me. The Constitution does not confer any rights on me at all; it protects rights that are assumed to exist. If the right to consensual sexual activity is not assumed to exist, we’re in big trouble.
Bricker wrote:
It is disappointing to see you refer to the time-honored process of judicial review as “judicial fiat.”
Do you contend that the Supreme Court should not be empowered to strike down laws that violate our Constitutional rights? Suppose a majority of people in Georgia decided that black children should not be taught to read, and passed a law to that effect. Should the Court humbly bow to the will of the majority, and limit itself to “interpreting” that law? Or should the Court exercise the power of judicial review and strike down the law as unconstitutional?
As for the Bowers case being “good law,” well, that issue is not as settled as you imply. It was a 5-4 decision, and even the concurrances hold open the possibility that an argument presented from a different angle might change things. Furthermore, a thin 5-4 vote is vulnerable to the shifting majorities on the Court and to the shift of public perceptions of homosexuality. As Justice Blackmun pointed out in his dissent in Bowers:
Slim majorities on the Court can fade, and “good law” can become “bad law.”
Plessy v. Ferguson was once “good law,” too, until Brown v Board of Education came along.
PHIL –
Well, it’s Bowers, in that Hardwich was joined in the suit by “John and Mary Doe,” a couple who avowed that they wanted to engage in the proscribed act but felt they could not because of the statute. There may be other cases dealing with heterosexual acts, I don’t know, but I do know that most sodomy statutes do not limit the crime to homosexual acts; it is illegal for heterosexuals as well. For example, the U.S. Code of Military Justice (that bastion of liberalism) prohibits sodomy by anybody. See 10 U.S.C. sec. 801. Most state statutes do the same.
Then we’re in big trouble. No court has ever held that we have the right to engage in any sexual activity we choose, so long as it’s consensual. This is simply not a fundamental right the courts have deemed worthy of protection. Personally, I’m of the opinion that you should be able to do whatever you want so long as you don’t scare the horses. But at the same time, I don’t consider “sex of pleasure” for be a fundamental right worthy of constitutional protection, though I’m aware people may and do disagree.
For what it’s worth, my state’s supreme court last year upheld a district court’s determination that the state anti-sodomy law violated the state constitutional right to privacy. But the state supreme court pointed out that our state constitution (unlike, say, the Georgia one) affords a much broader right to privacy than the Federal constitution does. (Like many other states, my state defined “sodomy” as any “unnatural” act – including oral sex – and the case that resulted in the law being stricken was brought by a lesbian couple.)
SPOKE –
“Good law” as a phrase means that the law is on the books and binding, and has not been struck down or substantially modified. It doesn’t mean the law is great, or even good in the sense of wise or defensible. Yes, Plessy was good law until it was overruled; so is every other case.
Jodi-
I know what the phrase “good law” means. (I’m a lawyer, for crying out loud! ;))
That is why I brought up the Minersville School District v. Gobitis case (cited by Blackmun) as an example of “good law” which didn’t last long. It was overruled three years after being decided. I predict that a similar fate lies in store for the Bowers decision down the road. The numerous State Court rulings striking down these laws under State Constitutions represent, in my view, the future trend of legal thought in this area.
What’s all this about Federal laws banning all firearms? Did I miss something?
Oh yeah, and Bricker also wrote:
Huh? I’m not sure I follow your logic here. The Georgia found that a right of privacy exists in the Pavesich v. New England Life Insurance case in 1905, as you say. The U.S. Supreme Court confirmed that such a right of privacy exists under the Federal Constitution in Griswold v. Connecticut in 1965 (citing a number of earlier cases which alluded to that right). Where is this divergence of which you speak?
It looks to me like the two Courts didn’t diverge until it came time to decide whether the right to privacy included the right of consenting adults to make their own decisions about sexual activity in the privacy of their own homes. That divergence didn’t occur until after the Bowers decision.
At any rate, the fact remains that the two courts, interpreting virtually identical language, came to the opposite conclusion about whether that language protects private sexual decisions. To argue about when that divergence of interpretations emerged isn’t relevant to the discussion at hand, in my view.
…can anybody tell me why laws are written in such idiotic fashion?..(“carnal knowledge” indeed!
Anyway, when did sexual actions (“crimes against nature”) other than intercourse come to be crimes?
What I really want to know is: when our Predator-In-Chief …I mean president, leaves Washington and becomes a private citizen…will he be required to register (as a sex offender) with the local police department?
Bill
I distinctly remember watching it on 20/20. From what I understand, the ex-wife was trying to get custody of the child from the father by saying that the couple were practicing sodomy which by rule of thae State (which one I cannot remember) is illegal. So the couple were arrested and charged for it even when it was in their own home.
I will see if there is any online documentation but there is my cite.
My bad…I hit post instead of clear! Pease ignore former post!
Calls 'em likes I sees 'em.
A court that applies the law to the facts found by a lower court is exercising judicial review. A court that creates substantive, new personal rights our of whole cloth is invading the province of the legislature.
Assuming the constitution in question guarantees, in plain words, to all citizens the right to due process of law, then I absolutely agree that the court should exercise judicial review and strike the law as unconstituional. It cannot be sustained; no reasonable interpretation of it would allow it to coexist with that constitutional provision.
BUT - if a majority of people in Georgia decided that kissing in public ought to be illegal, and the legislature, responsive to that decision, passed the law, then for a reviewing court to find that public kissing is in the penumbra of unmentioned constitutional rights is ludicrous. And if they did… that would be judicial fiat.
True. I know for the Supremes, stare decisis is more of a suggestion than a hard and fast rule. 
The whole idea of a democratic republic, though, is that the people, through their elected representatives, make the law. The courts should interpret that law, fairly - discerning the intent of the legislature through its plain words, and if those are ambiguous, through its legislative history.
When courts take it upon themselves to create what amnounts to new Constitutional rights… that, I suggest, is a dangerous road to tread.
Jodi: Thank you. That explains it a little better. I still find it . . . distasteful that something like that isn’t considered a fundamental right deserving of protection, but that at least clears up the legal perspective.
By the way – if sex for pleasure ought to be a constitutional right, at what age should that right vest?
I seem to remember a California case a few years ago in which a teenager claimed that California’s law against minors having sex violated his state and federal right to privacy.
The justices in Sacramento did not agree.
Bricker wrote:
Hmmm. Some logical acrobatics here. Let’s see, you agree that black children have a right to an education if they so choose, even though that right is not spelled out “in plain language” in the Constitution. You apparently interpret the phrase “due process” to include that right.
On the other hand, since there is no “right to privacy” explicitly spelled out in the Constitution, you don’t think such a right exists? Am I reading you correctly?
Your apparent insistence that a right has to be spelled out in the Constitution before it can be enforced by the Court is not consistent with Ninth Amendment, which expressly says:
In other words, the people most certainly do possess rights which are not explicitly deliniated in the Constitution. I would argue that a right to privacy is among them.
Your last hypothetical, about public behavior (kissing) is off point. We are talking about private sexual behavior in this debate. Could a State outlaw public kissing and pass Constitutional muster? I would say not, but that’s really a different question isn’t it? First Amendment questions of freedom of speech come into play. Arguments about public decency come into play. It’s a whole 'nother debate. 
Bricker also wrote:
That is an inaccurate and incomplete description of our system at best. We live under a system of majority rule, true enough, but the rule of the majority is tempered by the rights of the minority.
Hence, a theoretical Republican majority couldn’t get together and pass a law which would prohibit Democrats from publishing newspapers. Such a law would violate the First Amendment rights of those Democrats.
In such a case, the Supreme Court is not limited to “interpreting” the law or “discerning its intent.” The Court has the power to declare the law unconstitutional and unenforceable in spite of the desire of the majority to keep the law in place.
This has been so since the days of President John Adams, and the Alien and Sedition Acts. Do you think it should not be thus? If not, what would your remedy be if a majority gets together and, acting through a legislative body, passes a law which violates a Constitutional right?
And also (anticipating a possible reply that a law should only be struck down if it violates a right clearly spelled out in the Constititution) do you think the Ninth Amendment, quoted above, is of no effect? Do you think the only rights we should have are those expressly listed “in plain language” in the Bill of Rights?
(Pardon my Socratic method. Old habits are hard to break. ;))
Bricker, I have to differ with you. As Phil and others have stressed, our rights are not given but guaranteed by the Constitution. The Court never “creates” a right; they merely discover or identify one that was not previously spelled out anywhere.
This doesn’t sound like sound constitutional law, does it? It is, though. Refer back to the Founding Fathers. The first ten amendments are considered to be “the Bill of Rights.” (I suppose XXVII might be included with that as well, now, but it doesn’t really fit!) Eight of them spell out specific rights which the Federal government may not abrogate. [As a really minor cavil, I’m probably alone in feeling that the Hugo Black gimmick of finding them applicable to the states by Amendment XIV is neither particularly good law nor necessary – Amendments II through X do not specify Congress, and may therefore be read as “the government” (Federal, State, local or whatever) may not abridge those rights. I presume I stand a real snowball’s chance in Hell of getting any court to buy into that reasoning, though.)
My point is that they did not create a laundry list of all rights they intended to protect against the government’s intrusion, and specified as much in Amendments IX and X.
Now granted that Bork has a point in his illustration that we don’t know specifically what Amendment IX covers. But that’s only important to people composing treatises on constitutional jurisprudence. The language is quite clear that there are in fact other rights than those listed in Amendments I-VIII, which are equally protected from Federal abridgement.
What rights? My suggestion would be that Potter Stewart’s maxim may be extended here: we can’t define them, but we know them when we see them. And while the Supremes have been loath to specify Ninth Amendment rights, they have not refused to do so. There are at least two rights which SCOTUS decisions have found within the Ninth Amendment (not within the “penumbra” of anything – that’s poetic metaphor that has no business in constitutional law). Specifically, the right to travel is protected (a Wisconsin welfare case is the cite, which I don’t have at my fingertips); and the right to privacy is specified in Griswold. (In view of Bowers there would seem to be some limits to this right under current case law, but I’d hate to be a jurisconsult trying to spell out the nuances.)
It is very interesting to me that cartoonist Herb Block took issue with the Court over Bowers, identifying what seems to have escaped the Supremes – that it was a question of privacy. His famous cartoon shows a shocked (heterosexual, by implication married) couple in bed, pulling the covers up over themselves, seen through the wall of their bedroom, which Berger and Rehnquist are in the process of tearing down. The caption is put in the husband’s mouth: “But they told us they were strict constructionists!”
Sorry, Spoke! :eek:
Not that this was addressed to me, but I think the Ninth Amendment is hands down the most weaselly part of the Consititution: “We’re not saying these are all the rights the people have; they have others; but we’re not going to say what those rights are or where they came from.” I am personally suspicious of the (few) cases grounded in the Ninth Amendment, as it has always struck me as sort of the cite of last resort – in the same category as the “penumbral eminations” – which you won’t technically find in the Constitution, either.
IMO, the flaw in the Bowers case was in focusing on the “right to commit sodomy” – which they held to be not a fundamental right – instead of the “right to privacy” – which, of course, they have repeatedly held is a fundamental right. Instead, the Court simply stated that the right to privacy “did not extend so far” as to cover consensual homosexual sex. Why it should not, they did not say. Personally, I never thought the due process argument was a very good one and I thought the Court correctly dismissed it. But I thought the right to privacy issue was much more thorny, and I was troubled by their cavelier glossing over of it.
In other words, I agree that while Bowers remains “good law,” it isn’t really very good law (if you follow). I notice the Court itself has been compelled to distinguish it several times, and I think it’s a case that is ripe for a revisitation and maybe a reversal. I certainly wouldn’t rely on it too heavily, or on it alone, if I had to brief the issue.