The Use of the State Constitutional Right to Privacy to Defeat State Sodomy Laws


In 1978 Justice Stanley Mosk of the California Supreme Court, comment-ing on the United States Supreme Court’s refusal to review a decision denying the right of privacy to consenting homosexualsI observed that “the only hope of preserving this seemingly clear right of privacy remains with the more benign states that, some by court action and some by legislative enactment, have curbed local zealots who suspect Sodom and Gomorrah behind every keyhole.

When Justice Mosk wrote these words, the United States Supreme Court had not addressed directly whether the federal constitutional right to privacy prohibited the states from criminalizing consensual adult sodomy. Consequently, the Court’s refusal to address the lower court’s reasoning when it summarily affirmed Doe v. Commonwealth’s Attorney, a decision upholdingVirginia’s sodomy law,’ left gay rights attorneys with hope for a future Court declaration that sodomy laws were unconstitutionally intrusive.

In 1986, however, the Supreme Court eliminated hope for national sodomy law reform when a bitterly divided Court ruled that the federal right to privacy does not prohibit the state of Georgia from criminalizing adult con-sensual sodomy. Justice White, writing for the majority, crudely dismissed as”facetious” the respondent’s claim that sodomy laws offend the principles of autonomy, liberty, and personal choice protected by the federal Constitution. The disappointing result in Bowers dashed the expectations of lesbians and gay men who had hoped that the federal Constitution would safeguard their right of privacy. As Justice Mosk had predicted, lesbian and gay Americans must now avail themselves of the possible protection offered by the states.

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