necessarily a Democrat or Republican issue. It’s about respect (or disrespect) of
one’s forebears.
Bowers v. Hardwick affirmed
Americans’ traditional ideals and
concepts of morality
In Bowers v. Hardwick, 21 the court con-
sidered the constitutionality of a Georgia
statute that outlawed sodomy. “Respon-
dent … challeng[ed] the constitutional-
ity of the statute insofar as it criminalized
consensual sodomy. He asserted that he
was a practicing homosexual, that the
Georgia sodomy statute, as adminis-
tered by the defendants, placed him in
imminent danger of arrest, and that the
statute for several reasons violates the
Federal Constitution.” 22 Relying on the
aforementioned cases, the 11th Circuit
Court of Appeals “held that the Georgia
statute violated respondent’s fundamen-
tal rights because his homosexual activity
is a private and intimate association that
is beyond the reach of state regulation by
reason of the Ninth Amendment and the
Due Process Clause of the Fourteenth
Amendment.” 23 In other words, the ap-
peals court bought the “penumbra” argu-
ment hook, line, and sinker. The Supreme
Court disagreed by distinguishing the
prior right to privacy cases as related to
or concerning child bearing and rearing:
[W]e think it evident that none of
the rights announced in those cases
bears any resemblance to the claimed
constitutional right of homosexuals
to engage in acts of sodomy that is
asserted in this case. No connection
between family, marriage, or pro-
creation on the one hand and ho-
mosexual activity on the other has
been demonstrated, either by the
Court of Appeals or by respondent.
Moreover, any claim that these cases
nevertheless stand for the proposi-
tion that any kind of private sexual
conduct between consenting adults
is constitutionally insulated from
state proscription is unsupportable.
Indeed, the Court’s opinion in Carey
twice asserted that the privacy right,
which the Griswold line of cases
found to be one of the protections
provided by the Due Process Clause,
did not reach so far. 24
Simply stated, the Court believed it
was being asked to define those rights
subject to the penumbral protections
of the Ninth and Fourteenth Amend-
ments, those rights not named in the
Bill of Rights but that could be inferred
from the line of “right to privacy” cases
dating back to Griswold. Reluctantly,
the Court agreed to consider the two
historic standards for determining
such rights, and whether consensual
sodomy fits within those standards:
( 1) those fundamental liberties that
are “implicit in the concept of ordered
liberty,” such that “neither liberty
nor justice would exist if [they] were
sacrificed”; and ( 2) those liberties that
are “deeply rooted in this Nation’s his-
tory and tradition.” 25 To save needless
verbiage, when such precedent is ap-
plied to consensual sodomy, few would
argue that such a fringe right could be
shoehorned in. The United States Su-
preme Court likewise found it absurd
that such a right fit within either stan-
dard, specifically holding that “[i]t is
obvious to us that neither of these for-
mulations would extend a fundamental
right to homosexuals to engage in acts
of consensual sodomy.” 26
