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Collette
Chris
Kendall Thomas
Beyond the Privacy Principle
The 1986 Hardwick case changed the right to privacy, because, Hardwick was
arrested for a very private act, while in his home (and in his bedroom). Thomas
calls it “…the most private of all privacy cases.”
Says the real reason the court held the way it did in the Hardwick case was
because of the disposition of the Supreme Court and not the purported defects in
the doctrine of constitutional privacy.
Based on the facts of the case, a more realistic analysis, beyond constitutional
privacy issues, should have taken place in Hardwick.
o Hardwick had encountered the police before in front of the gay bar where
he worked after he threw a beer bottle in the trash. He told the officer he
worked at the bar, but was cited for drinking in public. He failed to appear
in court regarding the ticket because of a date discrepancy.
o Within two hours of Hardwick’s scheduled court appearance, the officer
went to his house with a warrant but he was not at home. When Hardwick
returned home he was told that the police had been there, so he went and
paid the fine.
o Hardwick was told that an officer could not have come to his home
because issuing a warrant would take forty-eight hours. He was given a
receipt and considered the matter resolved.
o Three weeks later he was beaten unconscious by three men outside of his
home who called him by name “Michael” to get his attention (however,
Hardwick cannot confirm that the men were police officers)
o A few days after the beating the officer went to Hardwick’s home again
and found him having sex with a man in his bedroom, and arrested
Hardwick and the other man pursuant to a warrant the officer claimed he
possessed. The officers made derogatory and discriminatory remarks
while the men were in their custody and stayed in jail for most of that day.
o Hardwick was released and ended up taking the issue to the federal courts.
These references to state power in this essay, the author says, should make it easier to
specify why the relationship between homosexual sodomy laws and homophobic
violence is “constitutionally suspect”.
Author asserts that violence against gays and lesbians perpetrated by other citizens is
really representative of the states giving that power to its citizens. Further, statutes
against sodomy express homophobia; and violence against gays and lesbians translates
that theory into practice.