From: wdstarr@athena.mit.edu (William December Starr)
Subject: Re: Supreme Court and Homosexuality
Followup-To: misc.legal
Organization: Northeastern Law, Class of '93
Date: Thu, 19 Nov 1992 14:40:55 GMT


[Note the "Followup-To" redirect(s) to misc.legal only.]

In article <1992Nov18.024658.5826@panix.com>, 
lkk@panix.com (Larry Kolodney) said:

> > Actually, the GA sodomy law does not single out same sex couples
> > in the letter of the law.  [Terrence Heath]
>
> This is true, and raises a very interesting point.  Why did the
> Supreme Court opinion in *Bowers v. Hardwick* open with the line:
> The question before us is whether the states may prohibit
> *homosexual* sodomy.  (my paraphrase)?  Even though the statute was
> sex-orientation-neutral, Byron White chose to specifically single
> out homosexual sodomy as subject to state regulation.

In framing the issues, White included a footnote discussing this:

   Respondent then brought suit in the Federal District Court,
challenging the constitutionality of the statute insofar as it
criminalized consensual sodomy<2>.

<2>John and Mary Doe were also plaintiffs in the action.  They alleged
   that they wished to engage in sexual activity proscribed by [the
   Georgia law] in the privacy of their home, and that they had been
   "chilled and deterred" from engaging in such activity by both the
   existence of the statute and Hardwick's arrest.  The District Court
   held, however, that because they had neither sustained, nor were in
   imminent danger of sustaining, any direct injury from the
   enforcement of the statute, they did not have proper standing to
   maintain the action.  The Court of Appeals affirmed the District
   Court's judgment dismissing the Does' claim for lack of standing,
   and the Does do not challenge that holding in this Court.

   The only claim properly before the Court, therefore, is Hardwick's
   challenge to the Georgia statute as applied to consensual
   homosexual sodomy.  We express no opinion on the Georgia statute as
   applied to other acts of sodomy.

In other words, White's (and the Court's) reasoning was that the only
party who'd been "lucky" enough to actually be harmed by the statute
was Hardwick, therefore only Hardwick could challenge the law, and
that since Hardwick had been arrested for homosexual sodomy, he could
only challenge that part of the law.

I find this reasoning somewhat specious myself, especially since the
challenged law itself made absolutely no distinction or division
between homosexual and heterosexual acts, but I guess that that just
means that I'm not smart enough to be on the Supreme Court.  My guess
is that White et al felt that they had to frame the issue as a gay-
rights-only question in order to get Justice Lewis F. ("Swing Vote")
Powell -- who apparently was on the fence on this one until the very
last minute -- into their camp and give them their 5-4 margin of
victory... rumor has it that Powell really wanted to expand the right
of privacy to include private consensual sexual acts (outside the
realm of prostitution, anyway), but couldn't quite overcome his own
personal homophobia and use _Hardwick_ as the vehicle for doing so.
It is fact, not rumor, that in a speech given several years after his
retirement Powell publicly expressed his regret at his _Hardwick_ vote
and said that if he had it to do over again he'd go the other way.
Too little, too late, alas.

-- William December Starr <wdstarr@athena.mit.edu>