# Hardwick v. Bowers (760 F.2d 1202)/Concurrence-dissent Kravitch

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissent Kravitch
Kravitch, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority's conclusion that Hardwick has standing to challenge the constitutionality of the Georgia sodomy statute, but that the Does lack standing. I therefore concur in Part I of the majority opinion.
I must dissent from Part II of the majority opinion, however, because I believe that neither the court below nor this court has the authority to reach and decide the merits of Hardwick's constitutional claims. The United States Supreme Court, in Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirmed the judgment of a three-judge district court upholding the constitutionality of a Virginia sodomy statute nearly identical to Georgia's. I find unpersuasive the arguments advanced by the majority for declining to follow Doe v. Commonwealth's Attorney. Therefore, I would affirm the district court's dismissal of Hardwick's complaint for failure to state a claim upon which relief could be granted.

#### I

As the majority acknowledges, a summary affirmance by the Supreme Court has binding precedential effect. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). Nevertheless, the majority holds that Doe v. Commonwealth's Attorney is not entitled to precedential weight because the summary affirmance might have been based on lack of standing, rather than on the merits of the constitutional issues involved.
Contrary to the majority's suggestion, we are not free to speculate that the summary affirmance in Doe v. Commonwealth's Attorney might have been based on lack of standing. First, the Supreme Court's discussion of summary affirmances in Hicks v. Miranda forecloses such speculation:
As Mr. Justice Brennan once observed, "[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case...," Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978, 979, 3 L.Ed.2d 1200 (1959) ....
Id. at 344, 95 S.Ct. at 2289 (emphasis added); see also 12 J. Moore, H. Bendix & B. Ringle, Moore's Federal Practice ¶ 400.051, at 4-25 (2d ed. 1982) ("[S]ummary affirmances of lower federal court judgments...are decisions on the merits, and are binding on lower courts, in spite of the fact that such dispositions are made on the basis of the appellant's jurisdictional statement and the appellee's motion to dismiss or affirm, without oral argument or full briefs on the merits." (emphasis added)); C. Wright, Law of Federal Courts 757-58 (4th ed. 1983) ("Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits." (emphasis added; footnote omitted)).
Second, the jurisdictional statement in Doe v. Commonwealth's Attorney mentioned the substantive constitutional issues involved in the case, but did not mention the issue of standing. The Supreme Court has held that the jurisdictional statement limits the range of permissible lower court interpretations of a summary disposition. See McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Colorado Springs Amusements, Ltd. v. Rizzo, 428 U.S. 913, 920 n. 6, 96 S.Ct. 3228, 3232 n. 6, 49 L.Ed.2d 1222 (1976) (Brennan, J., dissenting from denial of certiorari).
Third, and most conclusively, if the Supreme Court had decided that the plaintiffs in Doe v. Commonwealth's Attorney lacked standing, the Court would not have had jurisdiction to decide the case. Therefore, the Court would have had to dismiss the appeal, instead of summarily affirming the judgment of the court below. This would be the necessary result whether the lack of standing was the result of Article III case-or-controversy considerations, or of purely prudential concerns. In my view, the majority fails to address adequately this crucial distinction.
I thus disagree with the majority's conclusion that the Supreme Court in Doe v. Commonwealth's Attorney might not have reached the merits of the case. Like all summary affirmances, Doe v. Commonwealth's Attorney constitutes a decision on the merits, and, in the words of the Supreme Court, "the lower courts are bound by summary decisions `until such time as the Court informs [them] that [they] are not.'" Hicks v. Miranda, 422 U.S. at 345-46, 95 S.Ct. at 2289 (quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir.), cert. denied, 414 U.S. 1096, 94 S.Ct. 732, 38 L.Ed.2d 555 (1973)).

#### II

The majority also holds that, even if Doe v. Commonwealth's Attorney had binding precedential effect when it was decided, such effect has been undermined by recent doctrinal developments. In particular, the majority argues that two footnotes in Carey v. Population Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and the dismissal of the writ of certiorari in New York v. Uplinger, 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201 (1984), indicate that the Supreme Court is now willing to reverse or reconsider Doe v. Commonwealth's Attorney. I respectfully disagree.
In footnotes 5 and 17 in Carey, the Supreme Court noted that "the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults." Carey, 431 U.S. at 688 n. 5, 97 S.Ct. at 2018 n. 5; id. at 694 n. 17, 97 S.Ct. at 2021 n. 17. I do not read this statement as a retreat from Doe v. Commonwealth's Attorney. On its face, the statement simply acknowledges the fact that the Court has not yet passed on the validity of many kinds of state statutes regulating sexual conduct. The statement does not purport to overrule those cases, such as Doe v. Commonwealth's Attorney, in which the Court has passed on the validity of other such state statutes.
It is clear from the context in which footnotes 5 and 17 appear in the Carey opinion that the majority's interpretation of those footnotes is erroneous. The plaintiffs in Carey argued that a New York law regulating the sale and distribution of contraceptives violated their right of privacy because the law infringed on their right to engage in "private consensual sexual behavior." The Supreme Court decided the case instead on a more narrow ground, however, and footnotes 5 and 17 constitute the Court's explanation for declining to adopt the plaintiffs' broad right of privacy argument. In effect, the Court was saying, "we have not extended the right of privacy as far as the plaintiffs would like." The Court was not saying, "it is now an open question whether the right of privacy invalidates all state statutes regulating any kind of private sexual conduct."
The dismissal of the writ of certiorari in New York v. Uplinger is an even less compelling reason for refusing to follow Doe v. Commonwealth's Attorney. In Uplinger, the Court faced a constitutional challenge not to the New York sodomy statute, but to a statute that prohibited loitering in a public place "for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature." N.Y. Penal Law § 240.35-3. The New York Court of Appeals struck down the statute. 58 N.Y.2d 936, 447 N.E.2d 62, 460 N.Y.S.2d 514 (1983). The Supreme Court granted certiorari, 464 U.S. 812, 104 S.Ct. 64, 78 L.Ed.2d 80 (1983), but in a subsequent per curiam opinion dismissed the writ of certiorari as improvidently granted, 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201 (1984).
The majority recognizes that a dismissal of certiorari, like a grant or denial of certiorari, normally has no precedential effect whatsoever. Yet it construes the per curiam opinion accompanying the dismissal of certiorari in Uplinger as a "signal" from the Supreme Court that Doe v. Commonwealth's Attorney is no longer good law. This conclusion is based on the statement in the opinion that the case "provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties." Uplinger, 467 U.S. at 249, 104 S.Ct. at 2334. From this single ambiguous statement, the majority infers (1) that the "important constitutional issues" included whether the right of privacy requires invalidation of all state sodomy laws, and (2) that the Supreme Court intended to reverse or reconsider Doe v. Commonwealth's Attorney, but decided to wait for another case to do so. These are inferential leaps greater than I am willing or able to make.
Furthermore, even if the majority's inferences are correct, this would not mean that the lower courts are now free to ignore Doe v. Commonwealth's Attorney. That the Supreme Court ultimately found Uplinger an "inappropriate vehicle for resolving" whatever constitutional issues the case presented does not imply that those issues previously were unresolved. Nor may this court reconsider the wisdom of Doe v. Commonwealth's Attorney simply because the Supreme Court may have indicated a possible willingness to do so. As the Supreme Court recently noted, "Needless to say, only this Court may overrule one of its precedents." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983); see also Jaffree v. Wallace, 705 F.2d 1526, 1532-33 (11th Cir.1983), appeal filed on other grounds, 52 U.S.L.W. 3441 (U.S. Nov. 14, 1983) (No. 83-812), 52 U.S.L.W. 3473 (U.S. Dec. 3, 1983) (No. 83-929), probable jurisdiction noted, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984).

#### III

Whatever our personal views about the constitutionality of a law that permits the state to regulate the most private of human behavior within the confines of the home, unless and until the Supreme Court clearly indicates otherwise, we are bound by that Court's decision in Doe v. Commonwealth's Attorney. Respectfully, therefore, I dissent.

#### Notes

↑ . For this reason, I would not address the constitutional issues discussed in Part III of the majority opinion. If I thought that this court were empowered to reach those issues, however, I would agree with the majority that the Georgia sodomy statute should be tested under the "compelling interest" analysis set out in Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973).
↑ . The Georgia sodomy statute, O.C.G.A. § 16-6-2 (1984), provides, in pertinent part:
(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another....
(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years....
The Virginia statute at issue in Doe v. Commonwealth's Attorney, Va.Code § 18.1-212 (1950), provided, in pertinent part:
Crimes against nature.--If any person shall...carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years.
↑ . Nor did the opinion of the three-judge district court mention the issue of standing. The opinion clearly reveals that the district court decided the case on the merits. See Doe v. Commonwealth's Attorney, 403 F. Supp. 1199, 1200-03 (E.D.Va.1975).
↑ . It must be remembered that the judgment of the district court in Doe v. Commonwealth's Attorney, which is what the Supreme Court summarily affirmed, was a judgment on the merits. See supra note 3.
The majority cites Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), and O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), for the proposition that the Supreme Court does not always vacate the judgment below and remand for dismissal when the Court finds that the plaintiffs lacked standing. I do not quarrel with the majority's proposition. The crucial issue, however, is whether the Court could have summarily affirmed, on the basis of lack of standing, the lower court's decision in Doe v. Commonwealth's Attorney, or whether dismissal of the appeal would have been the required course. In Rizzo and O'Shea, the Supreme Court reversed a lower court decision rendered on the merits in favor of the plaintiffs. Other than the majority's interpretation of Doe v. Commonwealth's Attorney, it has failed to cite a single instance in which the Court has affirmed, on the basis of lack of standing, a lower court decision rendered on the merits in favor of the defendants.
↑ . See Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) ("In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit." (emphasis added)).
↑ . See, e.g., Poe v. Ullman, 367 U.S. 497, 509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961) (dismissing appeal because of prudential, rather than Article III, standing considerations).
↑ . For example, the Court has not yet passed on the question whether the right of privacy invalidates state statutes prohibiting fornication. See, e.g., O.C.G.A. § 16-6-18 (1984) (Georgia fornication statute).
↑ . See Carey v. Population Services Int'l, 431 U.S. at 718 n. 2, 97 S.Ct. at 2033 n. 2 (Rehnquist, J., dissenting) ("While we have not ruled on every conceivable regulation affecting such conduct the facial constitutional validity of criminal statutes prohibiting certain consensual acts has been `definitively' established." (emphasis added)). Contrary to the majority's view, Justice Rehnquist did not consider footnotes 5 and 17 in Carey to be in conflict with Doe v. Commonwealth's Attorney. Rather, he indicated that footnotes 5 and 17 can, and should, be interpreted consistently with Doe v. Commonwealth's Attorney.
↑ . All that can be said with certainty about Uplinger is that at least four Justices originally voted to hear the case, and that five Justices subsequently voted not to hear it. See id. at 252, 104 S.Ct. at 2335 (White, J., joined by Burger, C.J., Rehnquist and O'Connor, JJ., dissenting from dismissal of writ of certiorari).
↑ . The plaintiffs in Uplinger raised vagueness, overbreadth, First Amendment, equal protection, and due process challenges to the New York statute. See id. at 248, 104 S.Ct. at 2333. The per curiam opinion dismissing the writ of certiorari did not identify which of these constitutional issues the Supreme Court felt were "important." Furthermore, as the majority notes, the Court was not even certain as to just what federal constitutional issues actually had been decided by the state court. Therefore, unlike the majority, I cannot conclude that the "important constitutional issues" referred to by the Court included the right of privacy and its effect on state sodomy laws.
↑ . As the majority acknowledges, if Doe v. Commonwealth's Attorney indeed was a decision on the merits, then we are bound by that decision until the Supreme Court indicates a "willingness to reverse or reconsider" the case. I find highly questionable any inference that the Supreme Court originally viewed Uplinger as an appropriate vehicle for reversing or reconsidering Doe v. Commonwealth's Attorney. Three of the four Justices who dissented from the dismissal of the writ in Uplinger (and who presumably were among those originally voting to hear the case) were in the majority in Doe v. Commonwealth's Attorney, and two of the four dissented in Carey v. Population Services Int'l. See Uplinger, 467 U.S. at 252, 104 S.Ct. at 2335 (White, J., joined by Burger, C.J., Rehnquist and O'Connor, JJ., dissenting from dismissal of writ of certiorari).
↑ . Nor can the majority rely on the Supreme Court's recent affirmance by an equally divided vote in Board of Educ. v. National Gay Task Force, 470 U.S. 903, 105 S.Ct. 1858, 84 L.Ed.2d 776 (1985). Affirmances by an equally divided vote are entitled to no precedential weight. Neil v. Biggers, 409 U.S. 188, 191-92, 93 S.Ct. 375, 378-79, 34 L.Ed.2d 401 (1972); Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708 (1960). Furthermore, the Tenth Circuit had held that the right of privacy was not implicated by the Oklahoma statute involved in the case. See National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir.1984).