"The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute... The principle requires liberty of taste and pursuit; of framing the plan of our life to suit our own character; doing as we like, subject to such consequences as may follow; without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse or wrong." This quote from John Stuart Mill's On Liberty, lays out the philosophical groundwork for the right to privacy. Although the United States Constitution does not explicitly guarantee this right, the Supreme Court through landmark cases such as Roe v Wade, Griswold v. Connecticut, and Eisenstadt v. Baird have judicially established privacy rights under limited zones relating to marriage, procreation, contraception, family relationships, childrearing, and education.
The Supreme Court has resolved, by a vote of five to four that the "Constitution provided no fundamental right to engage in homosexual sodomy." (Bowers v. Hardwick) This paper will show that the analysis behind the Bowers v. Hardwick decision was flawed and limited in scope. I believe that the government does not have the right to prohibit homosexual or heterosexual consensual sodomy. Anti-sodomy laws violate the right to privacy, equal protection, and provide no reasonable compelling state interest for these violations.
On August 3, 1982, Michael Hardwick was arrested in Atlanta for the crime of sodomy with a consenting adult male in the privacy of his own bedroom. (Cain, 1612) The Georgia statute provides that "a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organ of one person and the mouth or anus of another." (Cain 1613) Currently, 24 states and the district of Columbia provide criminal sanctions against individuals who commit acts of consensual sodomy in the privacy of their own bedroom. (Halley, 1750) Hardwick petitioned the court on the grounds that Georgia's anti-sodomy act was unconstitutional. The Hardwick case was decided by the Supreme Court in June of 1986. Although the Court formed an opinion regarding homosexual sodomy, "it did not comment on whether laws prohibiting heterosexual sodomy violate the right to privacy of heterosexuals." (Catania, 296)
The Supreme Court believed that the right to commit acts of sodomy are not entitled to constitutional protection because the right in question must be either "implicit in the concept of ordered liberty" or "deeply rooted in this nation's history and tradition." (Laveno, 1032) When writing the majority opinion, Justice White stated that laws against sodomy have ancient roots. These acts were forbidden by common law and in the laws of all 13 original states. According to the court the right to engage in acts of sodomy have...