Frank Minis Johnson

“ While the constitutional source of these limitations of the power of the State has been termed the "right to privacy," it is not limited to conduct that takes place strictly in private. Some personal decisions affect an individual's life so keenly that the right to privacy prohibits state interference even though the decisions could have significant public consequences. For instance, the direction of a child's education will have profound public consequences, yet under the Constitution a parent retains authority to direct his or her child's education. ”

“ Lower courts may rely upon the jurisdictional statement as an outside limit on the precedential scope of a summary decision but Supreme Court precedent does not allow us to consider the jurisdictional statement as both a minimum and a maximum formulation of the issues decided. Where, as in the Doe case, the facts of the case plainly reveal a basis for the lower court's decision more narrow than the issues listed in the jurisdictional statement, a lower court should presume that the Supreme Court decided the case on that narrow ground. ”

“ A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by imprisonment for not less than one nor more than 20 years.
↑ . The defendants do not dispute that the enforcement of this statute causes the injury alleged by Hardwick and the Does or that the requested declaratory judgment would likely redress their injuries. ”

“ While a plaintiff hoping only to challenge a statute might overestimate his or her willingness to risk actual prosecution, a plaintiff who genuinely desires to engage in conduct regardless of its legal status presents a court with a more plausible threat of future prosecution.
In some cases, the authentic interest of the plaintiff in engaging in the prohibited conduct can establish standing even though the only threat of enforcement by the State comes from the very existence of the statute. The Supreme Court in Babbitt v. ”

“ The Atlanta Police arrested Michael Hardwick on August 3, 1982, because he had committed the crime of sodomy with a consenting male adult in the bedroom of his own home. Charges were brought as a result of the arrest and after a hearing in the Municipal Court of Atlanta Hardwick was bound over to the Superior Court. At that point the District Attorney's office decided not to present the case to the grand jury unless further evidence developed. ”

“ The Court also indicated that the constitutionality of state laws against consensual sodomy was one of the most important of those issues; it explained that several impediments to consideration of the constitutional issues presented in the Onofre decision figured heavily in its decision to dismiss the writ. Those impediments included the belated decision of the petitioner not to challenge the Onofre decision and the fact that the state court decision in Uplinger was subject to varying interpretations, leaving uncertainty as to the precise federal constitutional issue the state court decided. ”

“ In sum, the Supreme Court's analysis of the right to privacy in Griswold v. Connecticut, supra, Eisenstadt v. Baird, supra, and Stanley v. Georgia, supra, leads us to conclude that the Georgia sodomy statute implicates a fundamental right of Michael Hardwick. The activity he hopes to engage in is quintessentially private and lies at the heart of an intimate association beyond the proper reach of state regulation. Such a right is protected by the Ninth Amendment, Griswold v. ”

“ Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home.... Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. ”

“ Furthermore, if the jurisdictional statement could expand a summary affirmance beyond the scope of issues necessarily decided, it would give the litigants considerable control over the scope of summary dispositions. While a jurisdictional statement prevents speculation as to what issues the Court actually considered, see Howell v. Jones, 516 F.2d 53, 56 (5th Cir.1975) , cert. denied, 424 U.S. 916, 96 S.Ct. 1116, 47 L.Ed.2d 321 (1976) , it is only a tool in determining the ultimate question: the most narrow plausible rationale for the summary decision. ”

“ The past arrest of Hardwick, combined with the continuing resolve on the part of the State to enforce the sodomy statute against homosexuals and the authenticity of Hardwick's desire to engage in the proscribed activity in the future, leads us to agree with the district court that Hardwick has standing to bring this lawsuit. The issue of the Does' standing is less straightforward. They have not been arrested or threatened with arrest for sodomy. At first glance, they appear to be in the same position as several of the plaintiffs in Younger v. ”

“ The district court granted the motion. It ruled that the Does did not have standing to bring suit and that Hardwick, although he possessed standing, had no legal claim in light of the Supreme Court's summary affirmance of a three-judge district court in Doe v. Commonwealth's Attorney for the City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976) , aff'g. 403 F. Supp. 1199 (E.D.Va.1975) . All three plaintiffs have appealed the dismissal.
I. Standing A federal court may not hear a legal claim unless it arises from a genuine case or controversy. ”

“ The interest of the State in prosecuting these plaintiffs need not take the form of a specific threat of prosecution against them individually, although such a threat will often suffice to give a plaintiff standing. Steffel v. Thompson, supra. A general threat of prosecution against an identifiable group may confer standing in some instances. ”