Homosexuality and the Constitutional Right to Privacy


I would like to begin our panel by making a few background remarks on the nature of the setback in Doe v. Commonwealth’s Attorney, putting this case in the larger perspective of the constitutional right to privacy and the general perspective of the agenda of political reforms that have been associated since the Enlightenment with liberalism.

Litigation centering on the unconstitutionality of sodomy and unnatural acts statutes has focused on a number of alternative arguments, including (1) the establishment of religion clause of the first amendment, (2) the cruel and unusual punishment prohibition of the eighth amendment, (3) due process vagueness under the fifth and fourteenth amendments and ex post facto clauses of the U.S. Constitution, and (4) the constitutional right to privacy. On the merits, the strongest of these constitutional arguments appears to be the establishment of religion argument and the constitutional right to privacy. I say this not because I regard the cruel and unusual punishment and vagueness arguments as frivolous, but because they do not appear to afford the strongest possible constitutional arguments against the criminalization of homosexual relations between or among consenting adults. As regards cruel and unusual punishment, the suggestion was early made that, on the authority of Robinson v. California and Powell v. Texas, the criminalization of homosexuality was unconstitutional for the same reason that criminalizing having a common cold would be unconstitutional, namely, on the ground that people are not morally culpable for involuntary states, including diseases, which they happen to suffer. This argument has understandably not been pursued because it makes a false analogy between homosexuality and disease which is indefensible in principle and which, if accepted, opens homosexuals to alternative forms of civil commitment (as for insanity, or having a contagious disease) which may be more deplorably violative of due process rights than criminal penalties which, at least, are subject to due process guarantees of proof and proportionality limits as to level of punishment. Other cruel and unusual punishment arguments may have validity to the extent, by comparison of levels of punishment with other forms of crime, they show levels of punishment for homosexuality to be constitutionally disproportionate, but these arguments would still allow some level of punishment for homosexuality, which is objectionable. Finally, vagueness arguments may be usefully employed against some forms of “unnatural acts” statutes which do not have any clear background case law defining the scope of the vague concept of unnatural acts, but they may not be employed against statutes, like that which we have in New York State, which quite precisely define the forbidden forms of sexual conduct, indeed describe the conduct in quite lascivious detail.

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