Process, Privacy, and the Supreme Court

Abstract

This note will show how the privacy right first entered the legal language at the turn of the century. It will then outline how modern courts "found" the constitutional right of privacy in the mid-1960's and the treatment the right received in the succeeding quarter century. This framework will serve as a basis for examining the reasoning in Doe v. Commonwealth's Attorney for Richmond, Baker v. Wade,' Dronenburg v. Zech, and Hardwick v. Bowers, four lower court cases in which gay men challenged the constitutionality of laws proscribing homosexual rights. The next section will examine Bowers v. Hardwick, a Supreme Court case which construed the right of privacy as it pertains to homosexual activity, and illustrate why the majority opinion's logic is flawed. The note will demonstrate how the majority misperceived the true nature of the privacy right and will compare the different claims to acceptance that a court and legislature have in establishing a new right. Finally, the note will analyze why it was within the Court's legitimate purview to develop the privacy right through a reasoned elaboration of principle.