Dara Silberstein

The U.S. Constitution approved by the delegates to the 1787 Constitutional Convention did not include the protection of rights that were enumerated in the ten constitutional amendments, known as the Bill of Rights, that were eventually ratified in 1791. These amendments included guarantees to such rights as the right to free speech, the right to due process and the right to a speedy trial (U.S. Const. amend. I; U.S. Const. amend. V; U.S. Const. amend. VI). What was not enumerated or made explicit was a right to sexual liberty. How, then, would “we the people” come to expect the Constitution to protect such rights particularly with respect to same-sex sexualities? An answer to this question begins with the Ninth Amendment’s statement that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The inclusion of this amendment makes clear that the rights explicitly stated were not exclusive of those that were unenumerated and those that could not be anticipated. As the authors of Sexual Rights in America write, “As the guardian of fundamental rights unanticipated or under appreciated two centuries past, the Ninth Amendment transforms the Constitution from a static record of our forebears’ political and moral understandings into a dynamic and evolving expression of our basic rights” (Abramson, Pinkerton, & Huppin, 2003, p. 2).

The official portrait of liberal Supreme Court Justice Arthur Goldberg.

To be clear, the Ninth Amendment was not a salve intended to protect the rights of all. Within its historical context, rights were explicitly denied to the African and African-American slaves who were not considered to be human but chattel defined in Black’s Law Dictionary as, “[t]he name given to things which in law are deemed personal property” (Garner, 2019). Nor were the full range of rights available to women, particularly married women, who essentially merged their individuality into that of their husbands under the law of couverture. This meant that women were not only denied the vote but, when married, they could not sign contracts or conduct other business independent from their husbands (Garner, 2019). Nevertheless, the inclusion of the Ninth Amendment in the Bill of Rights provides a basis for protecting those rights considered to be natural and so fundamental to liberty. As some have argued this includes basic sexual rights; though, the range and extent of these rights remains a source of great division among legal scholars and advocates (Abramson et al., 2003). This was precisely the point made by Justice Goldberg in his concurring opinion in Griswold v. Connecticut (1965) in which the Supreme Court found that a married couple had the fundamental right to privacy within marriage. Arguing that the Ninth Amendment provided a constitutional basis for recognizing this fundamental right Goldberg stated:

To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever. (p. 492)

Despite what might appear to be an easy way to expand upon the rights protected by the Ninth Amendment, the Court has rarely addressed its meaning or expanded the list of unenumerated rights it might infer.

The amendment that would provide the basis for sexual rights was the Fourteenth Amendment, one of the three amendments ratified in the post-Civil War period which states in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. amend. XVI)

One interesting point to consider is that this amendment was ratified in response to the scourge of slavery’s system of racism. Under the Fourteenth Amendment states could no longer deny some of its residents, including former slaves, their rights protected by the federal constitution. The least impactful clause, the privileges and immunities clause, was significantly limited in scope by the Supreme Court in the Slaughter-House Cases (1873). However, the equal protection and due process clauses have played significant roles in the development of sexual rights.

The Fourteenth’s Due Process Clause does not specify what liberties it is meant to protect. The Court answered this question in Palko v. Connecticut (1937). Writing for the Supreme Court, Justice Cardozo found that this clause protected only those liberties that were, “of the very essence of a scheme of ordered liberty” (p. 325). As a result of this decision the liberties protected by the Bill of Rights were gradually applied to the states as well.

Justice Harry Blackmun’s official portrait.

The Griswold case in which the Supreme Court was asked to rule on whether a married couple had a right to birth control took the Palko decision further and looked at whether such a right emanated from those enumerated within the Bill of Rights. In his Griswold majority opinion Justice Douglas (1965) wrote that, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” (p. 484). He noted that a number of these guarantees create “zones of privacy” suggesting that the framers’ certainly understood the existence of a fundamental right to privacy. Once this fundamental right was recognized, Douglas aptly applied it to intimacy decisions between married couples (p. 486). As is well known this fundamental right to privacy became the basis for Justice Blackmun’s majority opinion in Roe v. Wade (1973) which found that Texas did not have enough of an interest in interfering with a woman’s fundamental right to privacy in choosing whether to have an abortion during the first trimester. The trimester-based right to privacy was altered by the Court’s subsequent decision in Casey v. Planned Parenthood (1992) so that the question of the state’s interest in preventing women from exercising their fundamental right to privacy came to be measured against fetal viability: the more viable, the more the state had an interest in protecting the fetus. Some have suggested that the Casey decision limited the fundamental quality of women’s right to privacy and is indicative of the Court’s willingness to limit the liberties protected under this 14th Amendment protected right. This was the case when the Court first considered whether the right to privacy protected an individual’s same-sex sexuality in Bowers v. Hardwick (1986). Nevertheless, the Supreme Court’s decisions in the reproductive rights cases created the legal doctrine of the fundamental right to privacy that would become eventually useful in expanding the sexual rights extended to lesbian, gays and bisexuals.

Bowers v. Hardwick made clear that in 1986, as the AIDS epidemic was ravaging members of the LGBTQ communities, the Supreme Court was unwilling to extend the fundamental right to privacy protections to same sex sexualities. The Bowers case arose from a challenge to Georgia’s laws criminalizing sodomy. One of the remarkable things about the facts in Bowers was that the acts in question actually occurred in the privacy of Michael Hardwick’s bedroom. An Atlanta police officer went to serve what turned out to be an invalid arrest warrant on Hardwick for his “failure” to appear in court on a citation for alleged public drinking. Hardwick’s roommate allowed the officer to enter whereupon he opened the bedroom door to find Hardwick and another man having sex. The officer arrested both men charging them with homosexual sodomy, a felony under Georgia law (Eskridge, 2008, p.232-234). From a legal advocacy perspective this made the fact pattern in Bowers ideal to challenge Georgia’s sodomy law under the fundamental right to privacy. Writing for the Court, Justice White did not find constitutional protection for homosexual sodomy. White (1986) noted the Court’s previous review of fundamental rights surrounding heterosexual reproductive rights and found that homosexual sodomy was not, “implicit in the concept of ordered liberty [… that] neither liberty or justice would exist if [they] were sacrificed” (Bowers v. Hardwick, 1986, p.192 quoting Palko at 326). He also dismissed the idea that the right to engage in homosexual sodomy was not so, “deeply rooted in this Nation’s history and tradition” (Bowers v. Hardwick, 478, 1986, p. 192 quoting Griswold at 506). This idea, that somehow homosexuality was not something a part of U.S. history inspired historians to produce a range of scholarship that not only demonstrated otherwise but that would become instrumental in the Court’s decision to overturn Bowers, for example Gay American History by Jonathan Ned Katz (1978).

Liberal Supreme Court Justice Anthony Kennedy

It took the Court 17 years to overturn its Bowers decision during which several states continued to criminalize same sex sexuality. It is notable, however, that in terms of the history of overturned precedents this period of time was brief. For instance, the Court’s seminal Brown v. Board of Education decision ending race-based segregation was issued nearly 60 years after the “separate but equal” doctrine was set forth in Plessy v. Ferguson allowing states to impose legally sanctioned racial segregation. The Bowers decision, however, held sway in the midst of the AIDS crisis and fostered an environment in which untold number of gay men would forego early medical intervention in addressing the virus for fear of facing criminal charges (McGuigan, 1986). By 2003 the cultural landscape had shifted enough for the Court to reconsider the question of the fundamental right to privacy protections afforded to homosexual sex in the case of Lawrence v. Texas^[1] (2003) Writing for the majority, Justice Kennedy noted that the facts in Lawrence were similar to Bowers in that Lawrence and Garner were arrested for “committing” sodomy in the privacy of Mr. Lawrence’s home when a police officer entered in response to a call about weapons disturbance (Lawrence v. Texas, 2003, p. 558). The law in Texas criminalized homosexual and not heterosexual sodomy. While advocates profered equal protection arguments in addition to the Fourteenth’s due process protection of the fundamental right to privacy, Justice Kennedy wrote that the case, “should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution” (Lawrence v. Texas, 2003, p. 564). Kennedy wrote that the sodomy laws sought to control behavior that was within,

the liberty of persons to choose without being punished as criminals. […] It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. (p. 567)

Kennedy’s opinion specifically challenged the historical framework previously set forth in Bowers and, in so doing, established the “rootedness” of homosexual intimacy as a liberty protected by the fundamental right to privacy. It is noteworthy that Kennedy did not embrace the Equal Protection Clause in his decision noting that, “Were we to hold the statue invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants” (Lawrence v. Texas, 2003, p. 575). Kennedy did acknowledge that decriminalizing homosexual sodomy would lead to destigmatizing homosexuality itself removing an unequal burden previously placed on homosexuals for their sexual intimacies.

One cannot overstate the impact of the Lawrence decision on the lives of LGB people who finally had a fundamental liberty protection of their intimate practices. That being said, some question the dependency of this liberty on a fundamental right to privacy as this sense of spatially appropriate conduct of sexual acts ran counter to practices within homosexual communities (Bell, Binnie, Holiday, Longhurst, & Peace, 2001). They suggest that for gay men cruising and sex in public spaces has been an important, integral part of their identities. Within this context “private” sex upon which the fundamental right is based is viewed as assimilationist as it continues to marginalize homosexuals if not outright erase components of their sexualities (Muñoz, 2009). Responding to similar criticisms, advocates argued for pragmatic solutions to the continuing criminalization of homosexual sex noting that there were limited constitutional frameworks available to convince the Court to overturn Bowers with its Lawrence decision (“Getting Rid of Sodomy Laws: History and Strategy That Led to the Lawrence Decision,” n.d.).

Protestors in Chicago urged then President-elect Barack Obama to repeal DOMA in January of 2009. Provided by Kevin Zolkiewicz under a CC BY-NC 2.0 license.