The Case of Bowers Versus Hardwick - Term Paper Example

Research Paper: Bowers v. Hardwick Case due: Bowers v. Hardwick sparks dilemma and criticism where proving the constitutionality of the law and upholding the rights of the people. The law as it was upheld in the district court and later the Supreme Court projected the same idea but created a tussle between different groups. The homosexuals and other groups against criminalization of sodomy feared the prejudice and discriminatory treatment from the society. Those that are for upholding the sodomy laws argue that historically the sodomy law was criminalized. However, as one critic put it, the homosexual tendencies became more pronounced recently. All the same the ruling of the Supreme Court ignored prior law. Chief Justice Burger noted in his position on the matter that if in the event that Hardwick was imprisoned then it would have brought the fourteenth amendment issue. That notwithstanding, it is believed that the move to imprison Hardwick with all the controversy would have made sympathizers believe that there existed a form of a witch hunt for the homosexuals. Therefore, Bowers and the court spared themselves the agony of clarifying the constitution as it was. It is vital to note that this law ought to have applied to all people of the United States of America. In deciding the case it would have been important for the court to have standards set for determining a considerable decision for both parties that are, uphold the law and at the same time consider the rights of the homosexual group. As Blackmun put it, there was no justification for the application of the sodomy law. The paper below presents the arguments following the events of the case of Bowers v. Hardwick Introduction Citizen’s rights to be free from governmental intervention are a principle of the American society. In spite of this, Americans are vulnerable to invasion of person’s liberty especially criminalization of private, consensual sexual intimacy within the home. The case of Bower v. Hardwick examined the constitutionality of a Georgia statute which criminalized homosexual acts. In its ruling, the court ignored prior case laws and ignored the nation’s tradition of providing freedom from governmental intrusion into the lives and homes of the American people (Kappelhoff, 1987). Development of the law On August, 3, 1982 Michael Hardwick, a 29 year old was arrested for making love with another consenting adult (male) at his home. The arresting officer had gone to Hardwick’s house to give him a warrant of arrest for failing to pay his fine for drinking a can of beer from a paper bag outside the Atlanta gay bar where he worked. A house guest answered the door and allowed the officer to see if Hardwick was home. The arresting officer found Hardwick with another man having oral sex that was considered a crime in the state of Georgia. The two were arrested under the 1816 statute which prohibited oral and anal sex by heterosexuals and homosexuals and was punishable by one to twenty years in prison (Kranz & Cusick, 2005). Hardwick and his male lover spent ten days in jail; however, the two were not prosecuted. Hardwick challenged the constitutionality of the Georgia state citing that the statute was unconstitutional as it denied him of the right to privacy with respect to his consensual sex conduct (Goldstein, 1988). Kranz & Cusick (2005) Suggest that if it were up to the Georgian state, Hardwick would have only spent one night in prison because the prosecutor declined to press charges. The lawsuit against Michael J. Bowers then the attorney general was to question the sodomy laws. They argued that Hardwick and his partner were consenting adults and that the law that was used to convict them could have also applied to heterosexual couples (p.107). The district court discharged the action for stoppage to state a claim. The district court’s ruling seemed to have relied on the Supreme Court’s summary in Doe v. Commonwealth Attorney, which prohibited homosexual conduct in the Virginia state. The United States court of appeals for the eleventh circuit reversed the district court’s opinion. It held that regulations of citizen’s conduct in their bedroom implicated constitutional rights. It also rejected the district court’s reliance on the case of Doe v. Commonwealth’s attorney. Judge Frank M. Johnson stated that the United States Supreme courts summary the affirm action in Doe was not a binding precedent. It was not conclusive in asserting the constitutionality of criminal laws of sodomy. The court, therefore, concluded that no supreme court would deny protection to consensual sexual behavior (Goldstein, 1988). The Supreme Court reversed the Eleventh circuit upholding the Georgian statute. The court was sharply divided and dismissed Hardwick’s claim in a three part analysis. First, the majority held that prior privacy cases were not construed to accept homosexual conduct. Second, the court decided that private homosexual conduct was not rooted in American tradition and, therefore, not a concept of America’s ordered liberty. Finally, the court decided that regulating the conduct considered immoral by majority of Americans such as homosexuality is a state interest (Kappelhoff, 1987). It is said that this case gave the Supreme Court the opportunity to clarify the constitutional limits a state could set to regulate adult sexual intimacy. Judge White wrote the opinion of the court saying that the constitution does not confer a right on homosexuals to engage in sodomy. Chief Justice Burger concurred with the position of the court claiming that there is no such thing as a right to commit homosexual sodomy. Justice Powell agreed that no fundamental right to commit sodomy existed but asserted that prison sentence for sodomy could create an Eighth amendment issue (Grey, 1997). Hartman et al., (2004) Suggest that contrary to the majority ruling Blackmun viewed sex and the status of a person engaged in the act and the court’s upholding the sodomy statutes were irrelevant in dissident the constitutionality of the statute. Blackmun also disagreed with the court’s refusal to consider whether sodomy violated the Eighth, ninth or the fourteenth amendment. He argued that the consideration of the above amendments would have set standards for determining if the action of sodomy would be dismissed .He disputed the district’s court ruling that Hardwick had no claim and found Bower’s justification of “adverse consequences to public health and welfare” to be insufficient to support dismissal of the claim. Judge Stevens wrote a dissent and was backed by Justices Brennan and Marshall. He posed and answered to questions in relation to the court’s ruling. The first question was: “could a state totally prohibit conduct to a law that applied to all persons?”His answer was a “no” adding that intimate sexual contact between both heterosexuals and the homosexuals could be perceived as a form of protection of liberty. His second question posed asked if the state could save its law by enforcing it only against Homosexuals. His answer was still a “no” finding no sufficient justification for the selected application of the sodomy law (p.268). According to Johnson (2001) the Georgia Supreme Court sat in November 1998 and struck down the 1968 sodomy law because it violated the right to privacy which is guaranteed under the constitution. The justices found that moral disapproval was not enough to legitimate the state law. Originally the case had started as a heterosexual sodomy but it applied to everyone who would be subjected to the law. Earlier, a Maryland circuit court had overturned the state’s sodomy law because the law violated the equal protection clause in reference to the fourteenth amendment. Another ruling by and Arkansas circuit court ruled that a case challenging the sodomy law could go forward. Arkansas is outlined as one of the few states that have the sodomy law targeting same sex couples. Some people have argued that the case of Romer v. Evans in 1996 overruled Bowers. In regard to this, the Supreme Court will have to assume its role as the final arbiter before the rights of homosexuals can be clarified (p.797).The supreme court’s ruling led to the following conclusions according to (Kappelhoff, 1987). The right to privacy precedent and Bowers v. Hardwick case Justice White held that previous privacy cases did not encompass a fundamental right to homosexual conduct. He justified his claim by citing the Griswold –Roe case asserting that fundamental rights apply to one family, marriage and procreation. The court asserted that these cases did not grant constitutional protection to engage in all consensual sexual conduct. Homosexual is not a fundamental right. The court in the Bowers case refused to recognize homosexuality as a fundamental right. Justice White emphasized that the constitutional protection was to be a deep foundation in the nation’s history. He further claimed that sodomy was a crime throughout the nation’s history and in twenty-four states. Regulating immoral conduct The court’s rule in favor of Georgia’s legislature concluded that the homosexual sodomy being an immoral act was sufficient basis for upholding a law that proscribes homosexual conduct. The court accomplished the case by declaring that the state’s interest in regulating immorality was sufficient to allow intrusion into someone’s house as was the case in Hardwick Legal analysis According to Lively & Weaver (2006), the court’s decision in the Bowers v. Hardwick concluded that there was no right to engage in homosexual sodomy and sparked criticism holding that it framed the fundamental rights issue as a matter of homosexual sodomy instead of a matter of intimate personal choice to the right of privacy. The court did not put forward the question of whether discrimination on the basis of sexual orientation could constitute equal protection violation. It also addressed the issue of Romer v. Evans (1996) when a Colorado constitutional amendment was struck. The amendment prohibited the state and municipal parties from extending the protection of antidiscrimination laws to homosexuals. The court insisted that the law was not related to a genuine state interest and did not indicate whether sexual orientation provided the basis for the heightened standard of review (p.229). Lawrence v.Texas (2003) prompted the court to revisit the underlying premise of the Bowers v. Hardwick. The factual circumstances of this case paralleled those of Bowers. Police had been sent out to a private residence in response to reports of weapons related disturbance. On arrival, the police observed two men engaging in a sexual act. The two men were arrested and charged with a crime under a law prohibiting “deviate sexual intercourse” ( Lively & Weaver, 2006). Justice Anthony Kennedy observed that some spheres of people’s lives should not be heavily scrutinized .Freedom in his view extended beyond spatial bounds and liberty presumed an autonomy of self that included freedom of thought, belief and expression and even some intimate contact. In this light, the court reconsidered its holding in Bowers v. Hardwick and determined that it had misapprehended the claim of liberty. It maintained the Bower’s inquiry into whether the federal constitution confers a fundamental right for homosexuals to engage in sodomy. The court separated from its controversial historical analysis. This was so especially in the premise that there was a long standing history in the United States law in regards to homosexual conduct. The court noted that the prohibitions of homosexual conduct were recent and also very limited. The court reasoned that moral convictions do not empower the state to impose them on the basis of criminal law. Justice Sandra Day O’Conner disagreed with the majority’s overruling citing that she found it unconstitutional under the equal protection’s clause. She said that moral disapproval was not a legitimate basis for discriminating against any person. Justice O’Conner maintained that the law could not stand as it was rather discriminatory because it did not apply to both the homosexuals and the heterosexuals (Lively & Weaver, 2006; Joslin, 1997). In his critique on the court’s decision (Kappelhoff, 1987) concludes that there was an error in the statutory prohibition of homosexual conduct that it was constitutional. The courts analysis had three flaws. First, the majority opinion conflicts with prior Supreme Court decisions on the privacy area. Prior to the Bowers case, the courts had broadened the interpretation of the acts that were private and which merited constitutional protection. Second, the court wrongly decided that the fourteenth amendment due process offered no protection for the homosexual conduct. Thirdly, the court came into a conclusion that the legislative goal of prescribing immoral behavior justified intruding and interfering intimate relations conducted within the home (p.505). The Supreme Court’s opinion conflicts with prior case law as it limited its holdings in the Griswold, Eisenstaedt and Roe by concluding that the decisions did not support the right to homosexual conduct. The majority held that these lines of cases were limited to recognizing individual privacy interest related to only family, marriage or procreation. These decisions however extended beyond marital and familial privacy. The Griswold –Roe cases are recognized as they addressed an individual’s fundamental right to make decisions about family relation, marriage and procreation. However, homosexual acts are non-procreative sexual conduct and, therefore, falls within the scope of privacy rights of the court. The court however in the Bowers case chose to overlook and extend the non-procreative sex to homosexual activity. (Kappelhoff, 1987) is of the opinion that fair and reasoned application of prior law would have probably had a favorable result for Hardwick (Redlich et al., 2008; Kappelhoff, 1987). The ruling of the majority depicted that the fourth amendment did not protect homosexual conduct. The ruling denied homosexual’s constitutional protection as this right is not exclusively enumerated in the constitution. The majority argued that the history of the United States of America did not encourage sodomy, and many states had criminalized sodomy. It is widely held that the majority were upholding “archaic” laws (p.509). The court failed to protect individual sexual relations between consenting adults in the home and failed to recognize the right to possess obscenity in the home. The Supreme Court’s decision disregarded a well-supported judicial history of protecting privacy rights within the home. Implications The bowers case may prompt individuals to be arrested if the government demonstrates that conduct involved is immoral. This also encourages the public to maintain intolerance and animosity toward homosexual tendencies. This threatens individual freedoms and liberties that our nation has always valued. The decision of the court strongly suggests tendencies of conformity as the homosexuals are referred to as immoral and their acts abnormal. Diamant (1993) agrees that the court refused to extend constitutional protection to homosexual acts between consenting adults thus supporting the constitutionality of the sodomy laws. This denial of the right to privacy sets a dangerous precedent in discrimination against homosexuals based on their personal lives. It is evident in prior cases that the court deliberately the rights of homosexuals thus the issue of inequality in the context of the law becomes salient. The courts have to use strict scrutiny standards in this case as it involved as it involved a group that required extraordinary legal protection due to historical subjection to unequal treatment (p.125). Conclusion In conclusion, the Bowers v. Hardwick departed from the principles in which the nation was founded on. Privacy is a right an individual should enjoy, and it should be free from the government’s intrusion of a person’s intimate life. The law violates on the rights of individuals whether they are homosexual or heterosexual and especially in the confines of the home. The case of Bowers v. Hardwick was wrongly decided as it failed to factor in the first section of the Fourteenth amendment which talks about prohibition of states making or enforcing laws which deny persons of privileges or immunities of the United States. The citizens in reference to the amendment shall not be denied of life, liberty or property (Johnson, 2001).As was the case in the Maryland circuit, the law violated the equal protection clause. In this case, moral disapproval is not a basis for discriminating against the homosexuals and moreover in the privacy of their homes. The law could not stand as it did not apply to heterosexual couples according to Justice Sandra Day O’Conner. References Diamant, Louis. Homosexual issues in the workplace. Washington, DC: Taylor & Francis, 1993. Print. Goldstein, A. B. (1988). History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick. Yale Law Journal, 1073-1103. Grey, T. C. (1997). Bowers v. Hardwick Diminished. U. Colo. L. Rev., 68, 373. Hartman, G. R., Mersky, R. M., Tate, C. L., & United States. (2004). Landmark Supreme Court cases: The most influential decisions of the Supreme Court of the United States. New York: Facts on File Johnson, J. W. (2001). Historic U.S. court cases: an encyclopedia (2nd ed.). New York: Routledge. Joslin, C. (1997). Equal Protection and Anti-Gay Legislation: Dismantling the Legacy of Bowers v. Hardwick--Romer v. Evans, 116 S. Ct. 1620 (1996). Kappelhoff, M. J. (1987). Bowers v. Hardwick: Is there a right to privacy. Am. UL Rev., 37, 487. Kranz, R., & Cusick, T. (2005). Gay rights. New York: Facts on File. Lively, D. E., & Weaver, R. (2006). Contemporary Supreme Court cases: Landmark decisions since Roe V. Wade. Westport, Conn. [u.a.: Greenwood Pr. Redlich, N., Attanasio, J., & Goldstein, J. K. (2008). Constitutional law (5th ed.). Newark, NJ: LexisNexis Matthew Bender. Read More