Crime and Punishment in American History - Lawrence M. Friedman [221]
For obvious reasons, same-sex issues were particularly touchy and less amenable to bloodless revolution. Nevertheless, homosexual conduct, among adults, was decriminalized in a number of important states. A California law of 1975 legalized “sexual acts in private between consenting adults”; a number of classic “victimless crimes” departed from the criminal code, probably forever: “adulterous cohabitation, sodomy, and oral copulation.”106 A number of states enacted similar reforms. But there are pockets of major resistance; and a good deal of backlash, all over the country.
The Supreme Court had a chance in 1986 to push all the remaining sodomy laws into extinction (Bowers v. Hardwick); but the Court refused to do so.107 The “privacy” cases had kindled hopes of a different result; a majority of the justices, however, delivered themselves of a particularly mean-spirited and retrograde opinion. Justice White intoned that antisodomy measures had “ancient roots.” He was “unwilling,” as he put it, to find in the Constitution a “fundamental right to engage in homosexual sodomy,” as if this was really the issue in the case. Chief Justice Burger was in no mood to “cast aside millennia of moral teaching.” Four of the justices disagreed with Burger and White, and Powell (one of the five-justice majority) later recanted.108 But still, the damage had been done. A number of state courts have struck down sodomy statutes—Kentucky joined the list in September 1992;109 but as of this writing (1993) it seems most unlikely that the Supreme Court will soon change its mind and join this crowd.
Privacy
An important line of cases sounded an important theme in twentieth-century law—a theme that goes by the somewhat misleading name of “privacy.” The “right of privacy” has, very notably, contributed to startling changes in the law relating to sexual behavior, contraception, and abortion. Any catalogue of causes would have to list changing attitudes toward sex, the invention of the contraceptive pill, the growth of the women’s movement, and, perhaps most fundamentally, the spread of a particularly potent form of expressive individualism in the United States.110
The mind behind such emanations as the Comstock law rejected even talking about contraception and abortion. But in the twentieth century, freer sexual behavior, and (very important) peoples’ desires for small families, destroyed the power of Comstock’s position. The old, restrictive laws against contraception, and contraceptive information, fell by the wayside. Restrictiveness made a last stand in Connecticut, where it suffered a mighty defeat in 1965 in Griswold v. Connecticut.111 Connecticut law made it a crime to use “any drug, medicinal article or instrument for the purpose of preventing conception”; it was also a crime to aid, counsel, or abet anyone to this nefarious end. The Supreme Court struck down the statute, and, in the process, discovered for itself a “right of privacy” mysteriously secreted somewhere in the Constitution—none of the justices were quite sure where.
The Griswold case talked about privacy, but it was never clear exactly what was private, or why it was protected. Of course, married people using contraception usually did the dirty deed in the dark of night, and in the “sacred” precincts of their bedrooms. Would we allow the police, asked Justice Douglas, to search those “sacred precincts” for “telltale signs” of contraception? A good question; but no one even pretended that this was much of a danger.112
In Eisenstadt v. Baird (1972)113 the Supreme Court went one