Hardwick and Historiography

This article reconstructs the history and jurisprudence of sodomy laws, which were key to the reasoning of Bowers v. Hardwick, the Supreme Court decision upholding such laws against right to privacy attack. Hardwick rested on an anachronistic treatment of sodomy regulation at the time of the fifth (1791) or fourteenth (1868) amendments, the locus of the right to privacy. Specifically, the framers of those amendments would not have understood sodomy laws as regulating oral intercourse (Hardwick's crime) or as focusing on "homosexual sodomy" (the Court's focus). Moreover, the goal of sodomy regulation had traditionally been to assure that sexual intimacy occur within the context of procreative marriage, an unconstitutional basis for criminal law under the Court's privacy jurisprudence. Thus, the Hardwick Court's analysis of sodomy laws had virtually no connection with the historical understanding of sodomy but, instead, reflected the Justices' own preoccupation with "homosexual sodomy" and their nervousness about the right of privacy previous Justices had found in the due process clause. The Court's problematic historiography deepens the normative problems other scholars have identified for Hardwick and illustrates the conceptual difficulties with the Court's "historical understanding" methodology.