Hardwick v. Bowers (760 F.2d 1202)/Concurrence-dissent Kravitch

Kravitch, Circuit Judge, concurring in part and dissenting in part.

I agree with the majority's conclusion that Hardwick has standing to challenge the constitutionality of the Georgia sodomy statute, but that the Does lack standing. I therefore concur in Part I of the majority opinion.

I must dissent from Part II of the majority opinion, however, because I believe that neither the court below nor this court has the authority to reach and decide the merits of Hardwick's constitutional claims. The United States Supreme Court, in Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirmed the judgment of a three-judge district court upholding the constitutionality of a Virginia sodomy statute nearly identical to Georgia's. I find unpersuasive the arguments advanced by the majority for declining to follow Doe v. Commonwealth's Attorney. Therefore, I would affirm the district court's dismissal of Hardwick's complaint for failure to state a claim upon which relief could be granted.

I
As the majority acknowledges, a summary affirmance by the Supreme Court has binding precedential effect. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). Nevertheless, the majority holds that Doe v. Commonwealth's Attorney is not entitled to precedential weight because the summary affirmance might have been based on lack of standing, rather than on the merits of the constitutional issues involved.

Contrary to the majority's suggestion, we are not free to speculate that the summary affirmance in Doe v. Commonwealth's Attorney might have been based on lack of standing. First, the Supreme Court's discussion of summary affirmances in Hicks v. Miranda forecloses such speculation:

As Mr. Justice Brennan once observed, "[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case...," ''Ohio ex rel. Eaton v. Price'', 360 U.S. 246, 247, 79 S.Ct. 978, 979, 3 L.Ed.2d 1200 (1959) ....

Id. at 344, 95 S.Ct. at 2289 (emphasis added); see also 12 J. Moore, H. Bendix & B. Ringle, Moore's Federal Practice ¶ 400.051, at 4-25 (2d ed. 1982) ("[S]ummary affirmances of lower federal court judgments...are decisions on the merits, and are binding on lower courts, in spite of the fact that such dispositions are made on the basis of the appellant's jurisdictional statement and the appellee's motion to dismiss or affirm, without oral argument or full briefs on the merits." (emphasis added)); C. Wright, Law of Federal Courts 757-58 (4th ed. 1983) ("Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits." (emphasis added; footnote omitted)).

Second, the jurisdictional statement in Doe v. Commonwealth's Attorney mentioned the substantive constitutional issues involved in the case, but did not mention the issue of standing. The Supreme Court has held that the jurisdictional statement limits the range of permissible lower court interpretations of a summary disposition. See McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Colorado Springs Amusements, Ltd. v. Rizzo, 428 U.S. 913, 920 n. 6, 96 S.Ct. 3228, 3232 n. 6, 49 L.Ed.2d 1222 (1976) (Brennan, J., dissenting from denial of certiorari).

Third, and most conclusively, if the Supreme Court had decided that the plaintiffs in Doe v. Commonwealth's Attorney lacked standing, the Court would not have had jurisdiction to decide the case. Therefore, the Court would have had to dismiss the appeal, instead of summarily affirming the judgment of the court below. This would be the necessary result whether the lack of standing was the result of Article III case-or-controversy considerations, or of purely prudential concerns. In my view, the majority fails to address adequately this crucial distinction.

I thus disagree with the majority's conclusion that the Supreme Court in Doe v. Commonwealth's Attorney might not have reached the merits of the case. Like all summary affirmances, Doe v. Commonwealth's Attorney constitutes a decision on the merits, and, in the words of the Supreme Court, "the lower courts are bound by summary decisions `until such time as the Court informs [them] that [they] are not.'" Hicks v. Miranda, 422 U.S. at 345-46, 95 S.Ct. at 2289 (quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir.), cert. denied, 414 U.S. 1096, 94 S.Ct. 732, 38 L.Ed.2d 555 (1973)).

II
The majority also holds that, even if Doe v. Commonwealth's Attorney had binding precedential effect when it was decided, such effect has been undermined by recent doctrinal developments. In particular, the majority argues that two footnotes in Carey v. Population Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and the dismissal of the writ of certiorari in New York v. Uplinger, 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201 (1984), indicate that the Supreme Court is now willing to reverse or reconsider Doe v. Commonwealth's Attorney. I respectfully disagree.

In footnotes 5 and 17 in Carey, the Supreme Court noted that "the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults." Carey, 431 U.S. at 688 n. 5, 97 S.Ct. at 2018 n. 5; id. at 694 n. 17, 97 S.Ct. at 2021 n. 17. I do not read this statement as a retreat from Doe v. Commonwealth's Attorney. On its face, the statement simply acknowledges the fact that the Court has not yet passed on the validity of many kinds of state statutes regulating sexual conduct. The statement does not purport to overrule those cases, such as Doe v. Commonwealth's Attorney, in which the Court has passed on the validity of other such state statutes.

It is clear from the context in which footnotes 5 and 17 appear in the Carey opinion that the majority's interpretation of those footnotes is erroneous. The plaintiffs in Carey argued that a New York law regulating the sale and distribution of contraceptives violated their right of privacy because the law infringed on their right to engage in "private consensual sexual behavior." The Supreme Court decided the case instead on a more narrow ground, however, and footnotes 5 and 17 constitute the Court's explanation for declining to adopt the plaintiffs' broad right of privacy argument. In effect, the Court was saying, "we have not extended the right of privacy as far as the plaintiffs would like." The Court was not saying, "it is now an open question whether the right of privacy invalidates all state statutes regulating any kind of private sexual conduct."

The dismissal of the writ of certiorari in New York v. Uplinger is an even less compelling reason for refusing to follow Doe v. Commonwealth's Attorney. In Uplinger, the Court faced a constitutional challenge not to the New York sodomy statute, but to a statute that prohibited loitering in a public place "for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature." N.Y. Penal Law § 240.35-3. The New York Court of Appeals struck down the statute. 58 N.Y.2d 936, 447 N.E.2d 62, 460 N.Y.S.2d 514 (1983). The Supreme Court granted certiorari, 464 U.S. 812, 104 S.Ct. 64, 78 L.Ed.2d 80 (1983), but in a subsequent per curiam opinion dismissed the writ of certiorari as improvidently granted, 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201 (1984).

The majority recognizes that a dismissal of certiorari, like a grant or denial of certiorari, normally has no precedential effect whatsoever. Yet it construes the per curiam opinion accompanying the dismissal of certiorari in Uplinger as a "signal" from the Supreme Court that Doe v. Commonwealth's Attorney is no longer good law. This conclusion is based on the statement in the opinion that the case "provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties." Uplinger, 467 U.S. at 249, 104 S.Ct. at 2334. From this single ambiguous statement, the majority infers (1) that the "important constitutional issues" included whether the right of privacy requires invalidation of all state sodomy laws, and (2) that the Supreme Court intended to reverse or reconsider Doe v. Commonwealth's Attorney, but decided to wait for another case to do so. These are inferential leaps greater than I am willing or able to make.

Furthermore, even if the majority's inferences are correct, this would not mean that the lower courts are now free to ignore Doe v. Commonwealth's Attorney. That the Supreme Court ultimately found Uplinger an "inappropriate vehicle for resolving" whatever constitutional issues the case presented does not imply that those issues previously were unresolved. Nor may this court reconsider the wisdom of Doe v. Commonwealth's Attorney simply because the Supreme Court may have indicated a possible willingness to do so. As the Supreme Court recently noted, "Needless to say, only this Court may overrule one of its precedents." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983); see also Jaffree v. Wallace, 705 F.2d 1526, 1532-33 (11th Cir.1983), appeal filed on other grounds, 52 U.S.L.W. 3441 (U.S. Nov. 14, 1983) (No. 83-812), 52 U.S.L.W. 3473 (U.S. Dec. 3, 1983) (No. 83-929), probable jurisdiction noted, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984).

III
Whatever our personal views about the constitutionality of a law that permits the state to regulate the most private of human behavior within the confines of the home, unless and until the Supreme Court clearly indicates otherwise, we are bound by that Court's decision in Doe v. Commonwealth's Attorney. Respectfully, therefore, I dissent.