What Was the Difference in Legal Reasoning in the Bowers V. Hardwick and Lawrence V. Texas Decisions Which Led the Former to be Overturned?
What Was the Difference in Legal Reasoning in the Bowers vs Hardwick and Lawrence V. Texas Decisions Which Led the Former to be Overturned?
Textualism V Normative Reinforcement of the Constitution: Is There a Fundamental Right to Homosexuality?
The Fourth and the Fourteenth Amendments: A Questionable Legal Ground to Define Privacy?
Can the Equal Protection Clause be Extended to Same-Sex Couples?
A Difference in Legal Reasoning Triggered by a Shift in Moral Reasoning?
A Right Deeply Rooted in this Nation’s History and Tradition?
How relevant should it be?
How Moral Affects and Threatens Law?
Until 2003, fourteen States had anti-sodomy laws in the United States. Some of them did not entirely enforce those acts while other States, such as Louisiana or Alabama, had been enforcing those laws in same-sex relationships as well as in heterosexual relationships. The map hereinbefore shows how unwilling a fringe of US States was, during the last third of the 20th century, to recognize a right to privacy that protected non-procreative sexual relationships. But, in 2003, this all changed and the Supreme Court, in its famous Lawrence v. Texas, 539 U.S. 358 (2003) decision, decided to extend the right to privacy to consensual homosexual conducts.
After Griswold v. Connecticut (1965) and Roe v. Wade (1973), both in which the Supreme Court recognized a right to use contraceptives and to have abortion, it seemed that the notion of privacy was being extended and was being given more and more power. But in, Bowers v. Hardwick, 478 U.S. 186 (1986), the Court argued that there was no fundamental right upon homosexuals to engage in homosexual conducts, before the Court overruled its decision in Lawrence v. Texas.
In both Bowers (Bowers v. Hardwick) and Lawrence (Lawrence v. Texas), openly gay adults, engaging in a consensual homosexual conduct, in their home, had been arrested by police officers for violating the Georgia statute (Bowers) and the Texas statute (Lawrence) that both aimed at banning sodomy. Those two cases, even though they present a few differences, are broadly comparable from a legal point of view as each of those cases involves two men who both consented to engage in the conducts previously mentioned. But the Supreme Court argued differently in those two cases. In a 5-4 decision that held the Georgia statute on same-sex relationships was constitutional, in Bowers, the Court provided a strict definition of privacy and sexual liberty that did not protect homosexuals to engage in consensual sodomy though, in Lawrence, a 6-3 majority overturned the ladder decision in a case that was highly similar.
How is it that the Supreme Court, in only 17 years, overruled a decision, Bowers (1986), which had been a landmark in the definition of privacy and sexual liberty? On what reliable legal material did the Court provide a broader and more substantial definition of the clauses incorporated in the Fifth and Fourteenth Amendments, in Lawrence (2003), although this very same Court purposely denied the extension of those clauses in Bowers?
I shall demonstrate that, from a strict interpretation of the concept of privacy and sexual liberty, the Court’s jurisprudence shifted to a much broader and more comprehensive conception of the Fifth, Ninth and Fourteenth Amendments (I) because of a change in legal reasoning as well as in moral reasoning (II).
Textualism V Normative Reinforcement of the Constitution: Is There a Fundamental Right to Homosexuality?
The Fourth and the Fourteenth Amendments: a questionable legal ground to define privacy?
In those two cases, one of the main legal issues was the definition that may be given to the Fourth, Fifth and Fourteenth Amendments, i.e. whether the unreasonable searches and seizures clause (Fourth Amendment), the Due Process Clause and the Equal Protection Clause (Fifth and Fourteenth Amendments) included a broad definition of privacy that prevented States from banning same-sex relationships between consensual adults in a private space.
Did anti-sodomy acts violate homosexuals’ fundamental rights (both in Bowers and Lawrence) to act as they wished in private? In Bowers, not only did the Court hold that the Due Process Clause, as it is defined in the Fifth and the Fourteenth Amendments, “did not reach so far” as same-sex relationships but it also reaffirmed States’ rights to infringe the Fourth Amendment that makes it compulsory to rely on a “probable cause” before initiating “unreasonable searches and seizures” in the home. In 1986, the Court justified stated that as long as a crime or a felony is committed, regardless of the statute of the place where it is committed (i.e. in the home or outside the home), it ought to be punished. Back at that time, the Court’s main point was that if it declared unconstitutional the Georgia statute banning same-sex relationships on the ground of privacy, it would have then de-criminalize a series of private conducts that were and are still criminal (drug use, incest, child molesting, for instance) . Moreover, the Court held that States’ intrusion in matters pertaining to sex was legitimate as Sates have long legislated in prostitution and rape which are matters obviously belonging to private sexual conduct and which require criminal regulation .
On the other hand, in 2003, the Court – which used arguments held by Justice Blackmun in his dissent in Bowers – argued the conducts previously mentioned (drug use, incest, child molesting) cannot be associated in any way with consensual homosexual sodomy since drug use, incest and child molesting are not victimless and harmless conducts, which consensual same-sex sodomy is. In his dissenting opinion in Bowers, Justice Blackmun argues the Courts’ decisions have long recognized “that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government” and that “a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged” .
Consequently, there would a certain sphere in which individuals’ private conducts may not be infringed as long as these conducts remain harmless and victimless. This is what the Court held in Lawrence as it assumed that the laws involved in Bowers as well as in Lawrence “have […] far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home” .
In those two cases, the Court provided a contradictory definition of the boundaries of privacy and of the conducts that may be (or may not be) infringed by States’ legislation. It extended the field protected by the Due Process Clause to same-sex relationships. The Court then overruled Bowers on the ground of privacy through an obvious difference in legal reasoning that did not hold Bowers as a binding precedent.
Can the Equal Protection Clause be extended to same-sex couples?
That being said, in Bowers and in Hardwick, privacy was not the only legal issue at stake. What respondent Hardwick and petitioner Lawrence also claimed in their request was that the anti-sodomy acts, even though they did not textually target same-sex couples in some States, demeaned homosexuals’ right for Equal Protection (as provided in the Fourteenth Amendment) and discriminated against homosexuals “both in the public and private spheres” .
Did these anti-sodomy laws violate the Equal Protection Clause of the Fourteenth Amendment and thus infringed equality before the law? In Bowers as well as in Hardwick, Justices pointed out this Equal Protection Clause situation. In his dissenting opinion in Bowers, Justice Stevens argued these anti-sodomy statutes were unconstitutional since they singled out homosexuals “as a separate class meriting special disfavored treatment” . Obviously, the Statutes at stake here indeed discriminate against homosexuals, since some of those Statutes were directly targeted at homosexuals and not at heterosexuals when they engage in the very same consensual conduct. But eventually, Justice White, who delivered the opinion of the Court in Bowers, dismissed the Equal Protection issue since petitioner Hardwick did not refer to this clause in his claim .
On the hand, in 2003, petitioner Lawrence did claim the Texas Statute infringed the Equal Protection Clause guaranteed both by the Texas and the US Constitution and thus the Court had to take it into account. It did and it used the Equal Protection Clause as it second main legal argument to overrule Bowers. Even Justice O’Connor – a conservative Justice, appointed by President Reagan – filed a concurring opinion (in the judgment of the Court only) in Lawrence on the ground of the Equal Protection Clause, tough she argued anti-sodomy Statutes were constitutional as long as they were neutral and banned sodomy regardless of partners’ sexual orientation.
And that is a big difference in legal reasoning since admitting homosexuals shall not be discriminated against because of their sexual behavior makes it possible to recognize them other rights heterosexual couples already benefit from, such as marriage.
But, to this statement, Justice Scalia, in his dissenting opinion in Lawrence, replied the Texas Statute was targeted at such a conduct and is targeted openly at homosexuals because this “conduct […] is closely correlated with being homosexual” . In some way, this is true. Justice Scalia even goes further arguing any law is targeted at more than a conduct but instead is targeted at a class, as laws against nudity are targeted at a conduct that is correlated with being a nudist and thus distinguishes nudists as a class .
Nonetheless, even if Justice Scalia has a point, it ought to be remembered that the Georgia and Texas Statutes were obviously unconstitutional considering the Equal Protection Clause that prevents any State from denying “to any person within its jurisdiction the equal protection of the laws” .
Through a difference in legal reasoning that was based in two major arguments – due process and equal protection –, the Court eventually provided a broader and, somehow, more modern definition of the Amendments involved in those two cases. But let’s be careful about the words we are using here: the Court did not recognize, in Lawrence, a fundamental right to homosexual sodomy. It did not invent a new right. As I said, the Court only expanded privacy and found those statutes unconstitutional as they were discriminatory too.
A Difference in Legal Reasoning Triggered by a Shift in Moral Reasoning
A « right deeply rooted in this Nation’s history and tradition »? How relevant should it be?
Beyond what legally differs in the two different decisions of the Supreme Court, there is somehow a part of the reasoning that overcomes what can strictly be named “legal”. At some point, there is a part of moral reasoning in Bowers as well as in Lawrence. Admittedly, this study shall not uniquely focus on the way moral reflections influence the jurisprudence of the Supreme Court. But in those two cases Justices have integrated moral arguments in their legal reasoning in order to make them appear legal, and thus, legitimate. Consequently, I shall demonstrate how reliable and relevant are (or are not) such arguments in those two cases.
In Bowers, one of the main points of the Court was that “proscriptions against that conduct [homosexual conduct] have ancient roots” and thus deserved not to be overcome on the ground of privacy. Chief Justice Burger emphasized this statement in his concurring opinion in Bowers when affirming the condemnation of “those practices [was] firmly rooted in Judeo-Christian moral and ethical standards” . Morally, Chief Justice Burger may have a point but are Judeo-Christian moral and ethical standards at stake here? If they were – and if they had been at stake in all binding precedents – then Griswold v. Connecticut (1965) and Roe v. Wade (1973) wouldn’t have had any legal rationale basis when they were decided.
There are no “ancient roots” that may justify the right to use contraceptives, nor having an abortion might appear legitimate through the reading of the Bible. But, after all, does all that pertain to legal reasoning? I would rather reply no as – even if laws obviously originates at some point from ethical frames – moral should not govern Justices’ mind when delivering their decision. As Justice Blackmun argues in his dissenting opinion in Bowers, forbidding conducts because they have been condemned for thousands of years as immoral is not “a sufficient reason to permit a State to ban them today” . It even becomes grotesque to justify the legitimacy of Georgia Statute evoking a law that “was laid down in the time of Henry IV” .
In Lawrence, the Court rejected such a line of argument, affirming there had been no long tradition in the United States to ban same-sex relationship. Then Justice Kennedy , tough he challenged the moral justification of the Texas Statute, paradoxically began another moral justification which aimed at demonstrating that not only was overruling Bowers legally grounded but also morally justified. For two pages, Justice Kennedy quotes early English literature, provides a medieval definition of rape and discusses whether ancient anti-sodomy laws were specifically targeted at consensual same-sex conducts.
How is this legal? It is not, as Justice Scalia demonstrates in his dissent . It is true same-sex conducts cannot find a justification in Judeo-Christian moral frames, nor can anti-sodomy States’ Statutes find a legal rationale basis in laws which are almost three hundred years old. From that prospective – if we consider these moral considerations have somehow a legal ground – then there may be partly no difference in the legal reasoning between these two decisions as they both highly rely on Judeo-Christian moral frames even though they do not apply those frames in the same way.
How moral affects and threatens law.
Both in Bowers and in Lawrence, the Court tries to hide moral reflections behind a line of legal argument. This may potentially be disastrous for the right to privacy as well as for the stability of the stare decisis system. The point is not to agree to Lawrence decision rather than to Bowers decision. Anyone may think what he or she thinks is right about same-sex relationships. The point is that Justices should not use moral tools to ban or justify a conduct, whether their moral frames are willing or unwilling to recognize a right upon homosexuals to engage in consensual sodomy.
I personally agree with the decision that was given in Lawrence but disagree on the way this decision was legally grounded because relying on Justices’ line of argument on whether there is a long tradition in the United States that justifies same-sex relationships threatens the stare decisis system. What if the years to come conservative Justices were appointed in the Supreme Court? What if they thought there was absolutely no moral justification and a mere legal rationale basis in overruling Bowers? Then, those hypothetical Justices would be unwilling to hold Lawrence as a binding precedent since it relies on moral concerns which are, as everyone knows, highly relative.
The stare decisis system would not have any weight then as constant overruling would have shattered relevant binding precedents. Nonetheless, I am not saying Lawrence may be overturned within a few months. But, as Justice Kennedy was trying to oppose Chief Justice Burger’s Judeo-Christian reasoning , he actually justified such a moral reasoning and unleashed a potential backlash.
Relying both on unquestionable legal material – which are the extension of the Due Process Clause and the Equal Protection Clause both included in the Fourteenth Amendment – and on much more controversial “moral” or “ethical” material which may be questioned in the future by more conservative Justices, the Court argued anti-sodomy Statutes were unconstitutional. Despite the flaw in reasoning I just mentioned, the Lawrence decision may remain, for the moment, a landmark binding precedent in the definition of privacy and in the ongoing fight for gay rights that is now moving towards marriage.
My opinion is – even though I am well aware I may not be in possession of all the legal elements required to legislate of such complex cases – that the Court could have used another legal tool which would have made possible not to rely on moral considerations (which are so relative and thus not binding): the Ninth Amendment, which addresses non enumerated rights. Indeed, in 1986, respondent Hardwick had expressly evoked the Ninth Amendment that gave “life and substance” to the notion of privacy as it was defined in Griswold v. Connecticut (1965).
The Founding Fathers were obviously unwilling to recognize, back in the late 18th century, a right upon homosexual to engage in sodomy. But, as sound and wise men, they knew they could anticipate the shifts of civil society. This is why they incorporated the Ninth Amendment to the Bill of Rights. And this is why, when no legal material or literature can be used as a rationale basis, it always seems more relevant to ground legal decisions on the Ninth Amendment than on vague, yet legitimate, moral reasoning.
Bowers v. Hardwick, 478 U.S. 186 (1986).
Lawrence v. Texas, 539 U.S. 358 (2003).
Richards, David A.J., The sodomy cases: Bowers v. Hardwick and Lawrence v. Texas, University Press of Kansas, 2009.