Bowers vs. Hardwick
The infamous 1986 Supreme Court decision was a shock to privacy experts; it was overruled by a later decision.
In Bowers v. Hardwick, the Supreme Court ruled that the Constitution does not include a Right of Privacy that protects consensual homosexual activity. At issue was a Georgia statute that criminalized sodomy. Bowers was arrested during consensual homosexual sodomy in his home, and as with most cases, the Supreme Court’s characterization of the issue was critical to the decision. The majority in Bowers framed the issue this way: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy…” Because the Court did not believe that the Constitution confers a Right of Privacy that protects homosexual sodomy, it refused to strike down the Georgia statute.
Bowers was a heavily criticized decision. It mainly grew out of a judicial philosophy against judicial activism. Consequently, the Court was reluctant to strike down the statute.
It became one of the rare decisions to be overruled. Courts that disagree with earlier Supreme Court decisions rarely overrule an earlier decision in explicit terms; instead they decide the latter case on different grounds and distinguish it from the earlier decision. Lawrence v. Texas (2003) expressly overruled Bowers and is one of those rare cases that expressly overrules an earlier decision.
Justice Kennedy wrote the decision in the 2003 case. Police entered Lawrence’s home, found him engaged in sex with someone of the same sex, and Lawrence was convicted of violating a Texas statute that prohibited homosexual activity. The Court held that the “Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause” (of the Fourteenth Amendment). The Court further noted that the “liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.” The Texas statute was struck down.
Most lawyers and judges ignore Founders like Ben Franklin because modern case law is more often applied. To do so, however, is to lose his golden sayings, such as “Mind your business.” Lawrence v. Texas is consistent with that wisdom.
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