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Kendall Thomas
Beyond the Privacy Principle

“The law may not be able to make a man love me,

But at least it can keep him from lynching me.”
---Martin Luther King, Jr.

 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.

 Author says facts of Hardwick undermine traditional distinction between formal

prohibition of homosexual sodomy and substantive means by which the
prohibition is enforced – form and substance are linked.
 Can the facts in this case be cleanly contained in the constitutional area of
 The author asserts that it cannot, because all the facts were not taken into account
and should have been. Further, it cannot because there are public dimensions to
the case.
 Says the real issue in the case is: Whether Georgia could constitutionally permit
its police power, specifically, its criminalization of homosexual sodomy, to serve
as a justification for threatened and actual violence toward one of its citizens?
 The case, according to the author, is really about Hardwick’s right to be protected
against state-sanctioned invasion of his integrity.
 Specifically, the interests that privacy is to defend are indispensably, body-
generated – i.e., the rights of privacy live and move within the material body and
without the basic right of integrity, the right of privacy in incomplete.
 Michel Foucault – One writer that argues for alternative analytical model to
power (where power is much more open and mobile).
 “Repressive Hypothesis” – holds that the mechanisms of power are
primarily negative and prohibitive.
 We must not describe effects of power in negative terms because it,
among other things, represses.
 Power does not just say no but produces.

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.