Police in the Bedroom

In the last few decades the U.S. Supreme Court has found that the Constitution contains within it a right of privacy that prevents the majority from dictating intimate choices to minorities or to individuals. Though it is not explicitly listed in the Constitution, this right of privacy, this limit on the power of the majority, is the basic premise that underlies the Bill of Rights. Individuals have rights that the majority cannot take away.

This right of privacy was the basis for the court’s 1973 decision in Roe vs. Wade, which legalized abortion. “The court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution,” Justice Harry A. Blackmun wrote for the majority in that case.

It was the same right of privacy that the court had used eight years before to strike down a Connecticut law that prohibited the dissemination of information about birth control. Writing for the court in Griswold vs. Connecticut, Justice William O. Douglas found that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” And among these additional rights was a “zone of privacy created by several fundamental constitutional guarantees.”

On Monday the court heard arguments in a case in which a gay man is challenging the constitutionality of Georgia’s sodomy law, which makes oral or anal sex between consenting adults a crime. The Georgia law applies to heterosexuals as well as to homosexuals, though it is enforced only against gays. Twenty-four states still have such laws on the books. California repealed its sodomy law a decade ago. Sodomy laws are an unconstitutional invasion of privacy.

The facts of the case (Bowers vs. Hardwick) amply show what is wrong with these laws. Michael Hardwick, the plaintiff, was arrested in his own bedroom by the Atlanta police, who had gone to his home to serve him with a summons involving a charge of drinking in public. Hardwick’s roommate answered the door and pointed the police to the bedroom, where they allegedly found Hardwick having oral sex with another man. No charges were filed in state court, but Hardwick brought suit in federal court to have the Georgia law under which he was arrested declared unconstitutional.

By inviting the police to gather criminal evidence in peoples’ bedrooms, the sodomy laws are abhorrent. What consenting adults do in private is their own business. The attorney general of Georgia, Michael J. Bowers, has said that the sodomy law is valid because “the state has the authority and the responsibility to make a statement of what types of conduct are not going to be accepted by the people.”

No, it doesn’t. That’s exactly what the Bill of Rights and the right of privacy mean. Intimate conduct and morality are up to individual choice, and are not subject to majority rule. Everyone should cringe at the thought of policemen in the bedroom. Hardwick’s right of privacy is everyone’s right of privacy. It is constitutionally guaranteed.