Supreme Court Case Law in Criminal Cases of Sodomy - Report Example

INCONSISTENT SUPREME COURT CASE LAW IN CRIMINAL CASES OF SODOMY Inconsistencies In Supreme Court case law in two cases involving criminal prosecution for consensual sodomy Introduction: In 1986, the Supreme Court of the United States issued a judgment in the case of Bowers v. Hardwick supporting a Georgia statute that criminalized consensual sodomy.1 The issue at stake was whether or not the statute was constitutional in so far as it infringed upon a person’s sexual privacy. However, in a recent decision in the case of Lawrence v Texas2, the Supreme Court was presented with the same issue – the criminality of consensual sodomy - but in this case, it reversed its decision and deemed it unconstitutional to deem consensual sodomy as a criminal act. The focus of this report will be to examine the two decisions to discover the inconsistencies and assess the reasons for them. The basic issue at stake in both the cases is that of defining the extent of individual liberty and freedoms that may be exercised under the constitutional amendments to the Constitution in the context of the wider moral framework of public morality and codes of behavior. Bowers v. Hardwick: The suit was brought by defendant Hardwick who was charged by the Georgia State Government for criminal violation of the state’s statute that criminalized sodomy. Hardwick challenged the constitutionality of his criminal conviction, since it violated his fundamental rights. The District Court supported the State’s position but the Court of Appeals reversed the decision. However, the Supreme Court upheld the constitutionality of the Georgia statute. In connection with the issue of fundamental rights of the defendant, the Court stated: “ None of the fundamental rights announced in this Courts prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable” [pp 190-191] The Supreme Court supported its position by quoting the case of Stanley v Georgia3:”…..the fact that homosexual conduct occurs in the privacy of the home does not affect the result.” (pp 195-196). During the period when this case was prosecuted in the courts, most states had laws that criminalized homosexual behavior between two consenting adults even if it was carried on in the privacy of their bedrooms and the decision reflected the predominant view of the majority of Americans about the illegality of homosexual behavior. A 5-4 majority in the Supreme Court upheld Georgia laws on sodomy which criminalized the act on grounds of traditional morality. There was however, one dissenting opinion from Justice Stevens who stated that: “…the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack” (pp 216) Lawrence v. Texas: In the case of Lawrence v Texas, the Homosexual Conduct law of Texas, moving along the lines of the Georgia state law, brought suit against the defendants for engaging in private, consensual sodomy. The Supreme Court, in rendering its opinion, held that the Bowers decision was unconstitutional and that the dissenting opinion of Justice Stevens should have been the guiding principle for delivering judgment. The Court declared that as fully consenting adults, the petitioners were “entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime”, within which area, “it is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." (Casey4, at 847).This decision is a landmark one in the case of gay rights and supports the freedom of the individual over the common morality standards. The decision was on a 6-3 basis and is an almost direct reversal of the very same Court’s order in Bowers vs. Hardwick, where the Court did adhere to the common morality standards. Major issues raised in these cases: The major conflict that arises in these cases is the issue of the private freedom of two consenting adults versus the criminal connotation of the act of sodomy and the contention that homosexuals had a constitutional right to engage in the act. Another important issue that rises in both these cases is that of the Equal protection Clause, which holds that no individual may be discriminated against on grounds such as sexual orientation or moral beliefs which are a private matter, where the law and the Courts may not intrude. The Bowers case qualified the issue of fundamental rights by stating that heightened judicial protection could be granted to individuals only when “neither justice nor liberty would exist if those rights were sacrificed”6, and did not find that to be true in the case of Bowers. Also, it deemed that these rights would have to be “deeply rooted in this nation’s history and tradition”7. However, in the case of Lawrence, the Court made reference to a different definition of liberty itself, as spelt out in Moore v east Cleveland: At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life8  It may be seen that both notions of liberty are held to be valid under preceding case law, as spelt out in detail in the opinions rendered in both cases. However, the inconsistency in their definition may be explained on the perceptions of public morality, as was laid out in the case of Lawrence. The Supreme Court, in overruling the decision of the Court of Appeals, pointed to many cases where the grounds for decisions taken that could be claimed to have infringed upon individual liberties, was done on the justification that public morality needed to be safeguarded. The Court chose to decide the constitutional issue of liberty on the basis of the 14th amendment rights to privacy granted by the Constitution of the United States. Justice Kennedy, while reversing the opinion of the Court of Appeals clarified that the Court had relied upon the Privacy Clause of the 14th Amendment rather than the Equal protection Clause, which would have placed the case under the discriminatory issue. The reason for this was to enhance the concepts of liberty enshrined in the Constitution and provide them with a wider outreach, rather than restricting it to the issue of discrimination, which could be further qualified. Five Justices also relied upon the Due process Clause in the Lawrence case [Scott,2003], noting that the State had no legitimate interest in criminalizing state behavior. This was in contrast to the reluctance of the Court in the Bowers case to explore the ramifications of the Due Process Clause. In the words of Justice White who delivered the opinion of the Court on the Bowers case: “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” While the opinion of the Court in the Lawrence case in essence declares that homosexuals must not be discriminated, Justice Scalia, in delivering a dissenting opinion, stated that the Court has assumed a homosexual agenda and was attempting to normalize what most normal Americans viewed as immoral behavior. Significance of the decision in the Lawrence case: This case may be seen to be as significant on the issue of homosexuality as was Roe vs. Wade in the issue of abortion9. The case of Roe v Wade legalized abortion and in a similar manner, this case appears to set a precedent for gay and lesbian rights. The right to privacy has been invoked in these cases and the differing opinions reflect the changes that have taken place in American society in the intervening years since Bowers. The question arises: is the Texas Homosexual Law relevant in today’s society? In the words of Justice Thomas who concurred with Justice Scalia’s dissenting opinion in the Lawrence case, the law is “uncommonly silly” and “If I were a member of the Texas Legislature, I would vote to repeal it.” Should homosexual behavior be considered criminal at all and should the fact that it is conducted in private exclude it from prosecution? In this context, the Bowers opinion is relevant when it declares that a crime is a crime whether committed in the privacy of one’s home or outside. The issue becomes more complicated when viewed in the context of discrimination under the Equal Protection Clause. It raises an age old question that has existed since the time Galileo was prosecuted by the Church for his scientific beliefs – how far should public morality be the meter against which individual thought, belief and behavior is measured? The public conception of the ethical borders between right and wrong have a large part to play in this case. Changing perceptions of society and the concentrated efforts of the gay and lesbian lobby have produced a favorable verdict in the Lawrence case. There can be no doubt that public sensibilities must play a role in determining the extent to which laws are applicable and the extent to which laws should be defined as criminal or non criminal, since laws are made to ensure the common good and control of public behavior. However, as far as the issue of sexual contact between two consenting adults in the privacy of their home is concerned, it hardly seems justified to impose the burden of public morality upon the ideals of individual liberty and freedom enshrined in the Constitution of the United States. The inconsistencies in the two opinions of the Supreme Court on the same issue of consensual sodomy reflects in large measure, the changing public perceptions of what constitutes criminal behavior. References: Bowers v. Hardwick (1986). 478 US 186. retrieved July 24, 2005 from URL: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=478&page=186 Lawrence v. Texas. (2003). Retrieved July 24, 2005 from URL: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02-102#opinion1 Scott, Randall.(2003). Supreme Court Issues Extraordinary Decision in Lawrence v. Texas Case NALP Bulletin. Retrieved July 25, 2005 from URL: www.nalp.org/assets/library/156_0703texas.pdf Read More