Bowers
Issues
• Rights-Issue: Is their something about consensual homosexual sex between adults that
makes it deserving of legal protection?
• Adequate Rationale: Is it legitimate for the majority to impose their moral-religious
views on the unwilling minority, as in the case of Georgia’s anti-sodomy statute? I.e.,
is the fact that the majority think sodomy is immoral sufficient reason for preventing
everyone (including the minority) from doing it?
Possible Positions
(a) Enforcement of morals is always permissible
(b) Enforcement of morals is permissible so long as no particular rights are violated
(c) Enforcement of morals is never permissible
Bowers Court Decision
• No privacy right issue (no right to engage in homosexual sodomy)
• Other privacy rights (marriage, birth control, abortion) do not “bear any resemblance”
to the issue in Bowers, and so cannot be extended to include this protection
• Georgia statute has a rationale basis: “the presumed belief of a majority of the
electorate in Georgia that homosexual sodomy is immoral and unacceptable.”
• Court permits enforcement of morals only when rights not at issue; but in this case
rights are not at issue; so the law is not unconstitutional.
Mill’s Harm Principle and Adequate Rationale
• HP: It is impermissible to prevent homosexuals from engaging consensual sex on the
grounds that it is morally bad for them.
• All or at least most law is based on moral views, so we cannot simply throw laws out
on the grounds that they have a moral justification (example: consent)
• Millian response: issue is not morality; the issue is interference in activities that do
not harm others
• Argument from utilitarianism looks weak: the pleasures of “self-development” of a
small minority vs. the pain of the many
Rights Issue
• Blackmun appeals to a strong conception of individual liberty: “right to be left alone.”
• Privacy rights grounded in “the moral fact that a person belongs to himself and not
others nor to society as a whole.” (Thornburgh)
• Thesis: Privacy rights are not simply a collection of “specific entitlements” which
may or may not include the right to engage in homosexual sodomy.
• These rights are grounded in the moral principle that every individual owns herself
and therefore her personal decisions cannot be forcibly tied to the concerns of others
or the general welfare.
• Blackmun invokes a thesis of self-ownership as argument against paternalism
Docsity.com
