Читать книгу American Democracy in Context - Joseph A. Pika - Страница 151

How far does the right of privacy extend? Griswold gave married couples a limited privacy right to use contraceptives free from government intrusion. Roe then extended that right to cover aspects of bodily autonomy. But what about state laws that criminalize certain types of consensual sexual behavior among adults?

This issue came before the Supreme Court in Bowers v. Hardwick (1986).¹⁰⁴ The state of Georgia made it a felony, punishable by up to 20 years in prison, to engage in sodomy (defined by the law as oral or anal sex). The law applied equally to homosexual and heterosexual couples, including married partners. This case involved a gay Atlanta bartender named Michael Hardwick who was arrested for engaging in oral sex with another man in his own bedroom. A police officer accidentally discovered them when he came to serve Hardwick a warrant for not appearing in court for an open container violation. The district attorney did not prosecute Hardwick, but he did not drop the charges either. Therefore, Hardwick brought a civil suit challenging the constitutionality of the Georgia law in federal court. He argued that it violated the right of privacy. By a narrow 5–4 vote, the Supreme Court rejected that claim and upheld the Georgia law, claiming that it had a rational basis. The dissenters used strict scrutiny to conclude that the law violated the right of privacy.

The Supreme Court overturned Bowers v. Hardwick in Lawrence v. Texas (2003).¹⁰⁵ This time, the majority concluded that laws criminalizing private, consensual homosexual conduct have no rational basis. Justice Antonin Scalia criticized this conclusion in dissent. If states have no rational basis to proscribe homosexual conduct, he asked, “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected in the Constitution’?”¹⁰⁶ His prediction that the majority’s reasoning would make it more difficult for courts to uphold laws banning same-sex marriage proved to be correct.

Tyron Garner (left) and John Lawrence (right) sued after sheriff’s deputies discovered them engaging in consensual sex in Lawrence’s home. The Supreme Court’s decision in the case declared anti-sodomy laws an unconstitutional violation of individuals’ right to privacy.

REUTERS / Richard Carson

In 2003, the Supreme Judicial Court of Massachusetts ruled 4–3 that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts constitution.”¹⁰⁷ Various states plus the District of Columbia followed suit, recognizing either marriage or civil unions/domestic partnerships of same-sex couples. However, other states specifically banned same-sex marriages. In 2015, the Supreme Court, in Obergefell v. Hodges, declared such bans to be unconstitutional. In a 5–4 ruling, the Court concluded that the right to marry is one of the fundamental liberties protected by the due process clause of the Fourteenth Amendment and that the equal protection clause prohibits same-sex couples from being treated differently than opposite-sex couples in the eyes of the law. By the time of the Obergefell decision, eighteen other countries (starting with the Netherlands in 2001) already recognized same-sex marriage. By 2019, twenty-seven countries sanctioned same-sex marriage, but consensual homosexual conduct remained illegal in over seventy countries.¹⁰⁸