Hardwick vs.
State of Georgia

by David Curtis

Four years ago, in August 1982,
Michael Hardwick was charged with
having committed the criminal act of
sodomy in Georgia. The "offense" was .'
mutually consensual act with another
adult male. It appears that when the
police entered Hardwick's home
pursuant to a search warrant (they
were looking for marijuana) they
discovered Hardwick and his partner in
flagrant delicto.

Hardwick brought suit in the U.S.
District Court challenging the
constitutionality of the Georgia statue
under which he was charged. The
District Court dismissed his complaint
but the Court of Appeals reversed that
decision, finding that the statute was
unconstitutional. The state of Georgia
appealed to the U.S. Supreme Court. On
lune 30, I986, the Supreme Court
were constitutional. Four of the nine
justices of the Supreme Court dissented.

The majority opinion, written by
Justice White and concurred with by
Justices Burger, Rehnquist, Powell and
O‘Conner, seems to be based upon the
legal theory that because sodomy was a
crime in 179] when the Bill of Rights
was adopted and in l868 when the
Fourteenth Amendment was ratified,
there is no historical basis to find that
the framers intended to include a right
to commit sodomy as part of the right
of privacy that the Court has
enunciated in other cases. Chief Justice
Burger, in his concurring opinion,
clearly sets forth his position that it
would be inappropriate to "cast aside
millennia of moral teaching." His
opinion also refers to the idea that
condemnation of homosexual practices is
"firmly rooted in Judeo-Christian moral
and ethical standards.”

The dissenting opinion by Justice
Blackmun is a repudiation of the
willingness of the majority to ignore
the constitutional right to privacy and
give deference to the moral values
presumably articulated by the statute.
l3lackmun's argument can best be
summarized by his statement that "...the
right of an individual to conduct
intimate relationships in the intimacy
of his or her own home seems to me to
be the heart of the Constitution's
protection of privacy.‘ His dissent is a
classic and one which I commend to
your attention. Space does not permit
me to give it the attention that it so
richly deserves.

Two comments by Blackmun are
Of particular note. In a footnote to his
0Dinion, he points out that the
arguments in support of the Georgia
statute are strikingly similar to those
Dlft forward in 1967 in support of a
Virginia statute forbidding interracial
f“a”138cs. He notes that the trial court
In that case found that "the fact that

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I.

September 1986 - page 3

 

JP

"Those, humans sure lcnow ‘how to fake the
space out: of life."

(Almighty God) separated the races
shows that he did not intend for the
races to mix." He also pointed out that
the arguments in that case relied upon
references to the Old and New
Testament and the writings of St.
Thomas Aquinas to show that
traditional Judeo-Christian values
proscribe such conduct.

Second. Blackmun concludes his
dissent with a call for review of this
issue. He calls on the Court to
reconsider its analysis and to conclude
that "depriving individuals of the right

to choose for themselves how 1'0
conduct their intimate relationships
poses a far greater threat to the values
most deeply rooted in our nation's
history than tolerance of nonconformity
could ever do.”

As Vermonters, this decision will
have no direct, immediate effect upon
lesbians and gay men. Vermont law
does not criminalize consenting sexual
conduct between adults in the privacy
of their own home(s). However, we
must be alert to attempts in the future
to change the law and legislate in this
very private area.

Vermont delegation supports D.C. AIDS insurance bill

Attempts have been made recently
by the U.S. House of Representatives
and U.S. Senate to overturn the
District of Columbia's recently passed
legislation that prohibits discrimination
by insurance companies against those
who are at risk for AIDS.

On July 23, the U.S. House of
Representatives rejected an attempt by
Representative Dannenmeyer (R-CA) to
overturn the D.C. ordinance by a vote
of 24] to 173. Representative Jeffords
voted with the majority (against
overturning the anti-discrimination
ordinance).

In the U.S. Senate, an amendment
offered by Senator Helms to overturn
the D.C. ordinance was passed by voice

vote when it was attached as a rider to
the debt ceiling bill. A motion to table
the rider had failed by a vote of 53 to
41. Both Senators Leahy and Stafford
had voted to table the rider, thus
supporting the gay community’s
position.

When the Senate completes action
on the debt ceiling bill, it will go to a
House-Senate conference, where most of
the amendments added by the Senate
are expected to die. I

Gay community members are
encouraged to write to Jeffords, Leahy
and Stafford in support of their votes
and to encourage them to work harder
along those lines.