Bowers vs Hardwick and Lawrence vs Texas - Assignment Example

? Bowers v. Hardwick and Lawrence v. Texas First Bowers v. Hardwick and Lawrence v. Texas Bowers v. Hardwick and Lawrence v. Texas are two landmark decisions of the Supreme Court of United State - made 17 years apart - that demonstrate the sea change in the attitude and outlook of the American judicial system and indeed the American life in general, towards homosexuality. In the earlier decision, Bowers v Hardwick of 1986, the court upheld the constitutionality of a Georgia law that criminalized anal and oral sex even between consenting adults in the privacy of their home. This ruling was overturned in the 2003 Lawrence V Texas ruling which basically asserted the rights of the individual to privacy and struck down sodomy laws in thirteen states and made same-sex activity legal throughout the United States. Introduction One of the key arguments of the civil rights together with Lesbian Gay Bisexual and Transgender (LBGT) movements have for long advocated is the fact that the state has no rights in determining or getting itself involved in what happens between two consenting adults in the privacy of their bedroom (Querbes, 2004). In these two cases, first in Georgia and then in Texas, police officers came into the citizen’s home and found him and his partner engaging in the act of consensual sodomy, which was outlawed in these states. In the first case, even after the Georgia Court and the Court of Appeal had ruled in favor of the respondent, the Supreme Court overturned the decision and ruled that sodomy was not a fundamental right. In the second case, the Supreme Court basically ruled that they had no right to interfere with what happened in the confines of the bedrooms of consenting adults (Querbes, 2004). 1 There were numerous societal factors that led the US Supreme Court to abandon the rule of stare decisis. The stare decisis is a principle that basically holds that judges usually allow previously made decisions to stand. In the case of Lawrence v. Texas the Supreme Court saw need to completely rule in the opposite of the judgment in Bowers v. Hardwick due mainly to the changes in attitudes, perceptions and views on homosexuality in the country (Harms, 2011). In 1986 when the initial Bowers v. Hardwick decision was made the country had just come out of the rather “freewheeling” permissive society of the 1960s and 1970s and a decidedly conservative candor was more the norm (Hanon, 1999). It was therefore no wonder that more than half the states still had rules in place that outlawed sodomy which was viewed as one of the practices that many felt made homosexuality abhorrent. The American society then was much much stronger in intolerance with the homosexual lifestyle (Harms, 2011). For the court also by the time the second (Lawrence v. Texas) decision was taken there had been quite a change in the Supreme Court with nearly half (four out of nine) judges having either retired or died and been replaced, giving the Supreme Court a totally new outlook which made it easier for them to make such a radical change in decision. The majority in the Bowers v. The Hardwick decision was only 5-4 and one of the judges in the majority later changed his opinion and said he would have voted differently had he thought the matter was as important as it turned out to be (Harms, 2011). Historically mainstream United States Culture has always condemned homosexuality and any other type of “deviant” sexual practices hence the enactment of anti-sodomy laws in many US states up to the eighties. Gay men and women were seen and depicted as degenerates and sexual criminals and they, their practices, views and lifestyles by the medical profession, government and the mass media. In the early 1980s, the Bowers v. Hardwick was therefore not an unpopular or an unusual decision at the time that it was made. 2 At the time of the Bowers v. A Hardwick case in 1986, the American public’s attitude toward homosexuality was very conservative. In fact as late as 1988, only 10.7% of Americans were in support of same-sex marriages while 67.6 were opposed to it. By 2004 however the percentage in support had jumped to over 30% while the percentage of those opposed to same sex marriages was down to less than 50% (Harms, 2011). Thus the American society was undergoing significant change in their opinions and attitudes towards homosexuality and same-sex relations. It is also telling that at the time of the Bowers v Hardwick decision more than half the states had outlawed sodomy while by 2003 when the Lawrence v. Texas case came up there were only thirteen states that still had sodomy listed as a criminal activity. The society had also changed with a lot more civil rights activism coming to the fore and the clamor for respect of individual rights had increased hence the mood of the nation, which the Supreme Court read accurately at the time was in greater support for individual freedoms and against any denial of such rights (Strasser, 2006). The last two or three decades have seen the largest change in societal attitudes to homosexuality and rights of the gay and lesbian population. The roots of the gay and lesbian movement took root since the Stonewall riots of 1969 when a routine police raiding a New York gay bar erupted into a full blown riot. Since then there has been movement that has aimed at bringing homosexuals and the homosexual lifestyle into the mainstream and even been seen in movies, tv productions and all aspects of the mass media. 3 There are several studies that have shown the changing attitudes to homosexuality and same sex relations in the United States from the 1980s to early 2000s (Tassinari, 2011). The attitudinal change occurred hand in hand with a more tolerant and wider acceptance of people in same sex relations as well as the greater realization of the need to stamp outlaws that discriminated against others based on their sexual orientation. At the same time there has been an increase in civil liberties activism which resulted in a greater agitation for the rights of those with “different” sexual orientation and also for a greater deal of respect for human rights and respect for privacy. At the same time, the advent of AIDs in the 1980s resulted in changed attitudes towards gay and lesbian people and much-needed discussions on the need to not stigmatize any given group of people such as homosexuals (Tassinari, 2011). The increase media coverage about and including homosexuality and gay rights is yet another pointer to the cultural change in the last 40 or so years. The type of media coverage that the AIDS pandemic was given also brought the whole area of gay rights and gay issues on general. At first AIDS was even referred to as the Gay Plague at the beginning of the 1980s, which led to even greater stigmatization of the gay members of society. AS the world and the US started dealing with the impact of this disease and after it was found to be not just one for hemophiliacs, Haitians and homosexuals – as it was originally characterized, the real honest and open discussions about homosexuality and sexual orientation were started and crystallized in the greater acceptance and understanding in the general society. 4 In their ruling on the Bowers v. Hardwick case, the Supreme Court Justices ruled that sodomy was not a fundamental right. In it they pointed out that the laws outlawing sodomy, that were then in place in 25 states including the District of Columbia were rooted in the nation’s history and tradition, a Judeo-Christian tradition that did not recognize the right to sodomy between consenting adults (Haque, 2007). It also specified that only the marriage relationship or relations entered into for the sake of family marriage or procreation were entitled to the legal privacy that the respondent had petitioned the court for. In the Lawrence v Texas ruling, in overturning the Bowers v. Hardwick ruling the Supreme Court held that the previous ruling had too narrow a view of liberty and that intimate sexual contact was one of the rights protected by due process under the constitution (Haque, 2007). In his dissenting opinion in the Lawrence v Texas case. The one impact of the Bowers v. Hardwick case ruling was the fact that it equated an “illegal” activity with a particular group of people – homosexuals – and thus meant that it was singling out this group of people in the population for censure and for stigmatization on grounds of their lifestyle that they led, which flies against the constitution and the bill of rights. Justice Thomas felt that the Texas law against sodomy was “uncommonly silly” and that punishing a person for the expression of their sexual orientation was an undue waste of law enforcement resources. 5 In the Bowers v. Hardwick case the philosophical underpinning was that homosexuality was equated to sodomy and the judges leaned towards the Judeo-Chistian thinking where sexual relations were only acceptable in a marital relationship, between man and woman and the main purpose of this was for procreation and the development of a family (Allen, 2008). The notion of sexual relations for mere “entertainment” or purely pleasurable intent was neither considered nor approved of. Thus even the concept of “intimate relations” that were afforded the privacy protection by the constitution was not common thinking at the time and that’s why sodomy even in the privacy of one’s bedroom was deemed to be a criminal activity. Thus the ruling was made a result of deeply held views on morality that were rooted in religious beliefs and a traditional concept of what was right and what was not (Allen, 2008). In the Lawrence v Texas decision however, in concluding that the right to privacy does not just apply to sexual relations within a marriage, the Court thus found that these fundamental constitutional rights extend to any or all sexual relations as long they are between consenting adults and in doing so, opened the door for same-sex marriages and single-sex families. The Court held that if a homosexual practice is outlawed then it presented an open invitation for the discrimination of people who are homosexual (Strasser, 2006). Also in this case, the Supreme Court also saw the philosophical nonsense in the Texas anti-sodomy law which held that sodomy was a crime only if it was between members of the same sex thus according to the Justices, this meant that the law unfairly singled out those people of a particular sexual orientation for discrimination which went against their rights as protected by the constitution (Strasser, 2006). Conclusion The Supreme Court of United States, being the highest court in the land, does not make its landmark decisions in isolation. They are made in consonance with the mood and feel of the nation and reflect the correct picture of attitudes and feelings throughout the nation. The changes in such rulings reflect the changes of the current opinion of not just the judiciary but the general public and in this way give shape and guidance to whatever is the current debate on contemporary issues. This continues to be the case up to this day and is one of the key functions of this peak of the country’s judicial system. The debate about same sex relationships, same sex marriage and individual rights to privacy is one that will not go away soon but one that will continue being argued about. References Allen, M. P. (2008). The Underappreciated First Amendment Importance of Lawrence v. Texas. Washington & Lee Law Review, 1045, 1045-1070. Retrieved May 24, 2013, from http://law.wlu.edu/deptimages/Law%20Review/65-3Allen.pdf Hanon, S. D. (1999). License to Oppress: The Aftermath of Bowers v. Hardwick Is Still Felt Today: Shahar v. Bowers. Pace Law Review, 19(3), 507-547. Retrieved May 24, 2013, from http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1296&context=plr Haque, A. A. (2007). Lawrence v. Texas and the Limits of the Criminal Law. Harvard Civil Rights-Civil Liberties Law Review,42, 1-43. Retrieved May 24, 2013, from http://www.law.harvard.edu/students/orgs/crcl/vol42_1/haque.pdf Harms, W. (2011). In Americans move dramatically toward acceptance of homosexuality, survey finds. Retrieved May 24, 2013, from http://news.uchicago.edu/article/2011/09/28/americans-move-dramatically-toward-acceptance-homosexuality-survey-finds Querbes, S. (2004). In The Supreme Court, Sodomy Laws and the Impact of the LGBT Movement in America. Retrieved May 24, 2013, from http://www.albany.edu/womensstudies/journal/2004/querbes.htm Strasser, M. (2006). Lawrence, Mill, And Same-Sex Relationships: On Values, Valuing, And The Constitution. Southern California Interdisciplinary Law Journal, 15(285), 285-306. Retrieved May 24, 2013, from http://mylaw2.usc.edu/why/students/orgs/ilj/assets/docs/15-2%20Strasser.pdf Tassinari, L. A. (2011). An Examination Of Attitudes Towards Homosexuality In The United States: An Analysis Of Trends And Predictors (Master's thesis). Retrieved May 24, 2013, from http://dl.uncw.edu/etd/2011-1/tassinaril/lauratassinari.pdf Read More