The right to be left alone v. the crime against nature: An analysis of Bowers v. Hardwick

Abstract

This qualitative case study analyzed the United States Supreme Court's opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), and the historical and legal background leading up to the case. Often characterized as a decision representing an emotional rejection of homosexuality rather than a reasoned application of constitutional privacy precedent, this inquiry sought to identify and document the determinants of the outcome in Bowers, in which a slim majority of the Court ruled that the constitutional right of privacy did not prohibit states from regulating homosexual sodomy. The study demonstrated that although homophobia certainly played a part in the Bowers decision, that the opinion was not necessarily inconsistent with previous privacy decisions such as Griswold v. Connecticut , 381 U.S. 479 (1965), and Roe v. Wade, 410 U.S. 113 (1973). The author concluded that the dominant insight gleaned from Bowers is that there is no such thing as a constitutionally protected right of privacy, at least not in the way that privacy is conventionally understood. The Bowers opinion illuminates that the Court's privacy jurisprudence has been more about the privileging of certain relationships (such as that between husband and wife or doctor and patient) than it has been about personal privacy. Such relationships serve an important limiting principle. The author concluded that the outcome in Bowers was not the insufficiency of the claim of a right to privacy, but the insufficiency of any limiting principle. The research documented and analyzed history of the two bodies of law most relevant to the Bowers opinion: state law which criminalized sodomy; and constitutional protection of individual privacy.