The Right to Privacy as Basis for Justice Kennedys Substantive - Essay Example

Case Analysis of Lawrence v. Texas 539 U.S. 558 (2003) I. A. The right to privacy as basis for Justice Kennedy’s substantive due process rationale Justice Kennedy pointed out the importance of liberty in a person’s private life. Hence, to quote, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places,” Lawrence v. Texas, 539 U.S. 558 (2003). The right of privacy, has been defined as “the right to be left alone, to be free from unwarranted publicity, and to live without undue interference by the public in matters with which the public is not necessarily concerned” (Grossman, 2008). Justice Kennedy, cited that the petitioners were “free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment,” Lawrence v. Texas, 539 U.S. 558 (2003). He added that the statute on Anti-sodomy controls a personal relationship which is considered to be “within the liberty of persons to choose,” Lawrence v. Texas, 539 U.S. 558 (2003). In this case, the petitioners were both consenting adults during the time the alleged offense was committed which was held in private, Lawrence v. Texas, 539 U.S. 558 (2003). He added that the liberty protected by the Constitution gives substantial protection to adult persons in deciding how to conduct their private lives especially on matters related to sex, considered to be an intimate and a personal choice, Lawrence v. Texas, 539 U.S. 558 (2003). Hence, in conclusion, the Justice commented that the State cannot degrade the existence of these acts of private sexual conduct by making it a crime nor can it justify invasion into the personal and private life of an individual absent any legitimate state interest, Lawrence v. Texas, 539 U.S. 558 (2003). B. Justice Kennedy’s Substantive Due Process Rationale Justice Kennedy explained that if a statute was held to be invalid under the Equal Protection Clause, then there might be a way that such statute may be considered as valid if circumstances were changed, for instance, if the prohibition of a conduct is applied either between the same sex or different sex participants, Lawrence v. Texas, 539 U.S. 558 (2003). He explained that the stigma of making a protected conduct criminal still remains if the substantive validity of the statute is not examined and even if it were not enforceable under equal protection reasons, Lawrence v. Texas, 539 U.S. 558 (2003). Furthermore, being a criminal offense, it subjects the person to all the consequences, which may either be the punishment or in his job applications thereafter, for such a “state-sponsored condemnation,” Lawrence v. Texas, 539 U.S. 558 (2003). Declaring homosexual conduct criminal by the law affects the dignity of the persons charged in violation of the Due Process Clause, Lawrence v. Texas, 539 U.S. 558 (2003). C. Rationale Basis Test Used to Declare the Texas Anti-Sodomy Statute Unconstitutional. The rationale basis test used by Justice Kennedy in declaring the Texas Anti-Sodomy unconstitutional is very detailed considering that the historical records were looked into to determine if there were prosecutions as to the conduct of consenting adults done in private. The Model Penal Code promulgated in 1955 by the American Law Institute, was also looked into in order to clarify whether it provided “criminal penalties for consensual sexual relations conducted in private” Lawrence v. Texas, 539 U.S. 558 (2003). There was also a determination on whether indeed such statute violates the Fourteenth Amendment on due process, Lawrence v. Texas, 539 U.S. 558 (2003). Since the matters involve “the most intimate and personal choices” central to the personal dignity and autonomy of the individual, then certainly this would be covered by the liberty protected by the Constitution, Lawrence v. Texas, 539 U.S. 558 (2003). Another test is the statute’s comparison with other courts on the “protected right of homosexual adults to engage in intimate, consensual and private conduct,” Lawrence v. Texas, 539 U.S. 558 (2003). Finally, there was a determination of whether there is a legitimate governmental interest to justify invasion into the personal and private life of an individual, Lawrence v. Texas, 539 U.S. 558 (2003). The statute when analyzed through these, do not justify intrusion into the person’s conduct of his private life and hence justifies the striking down of the Texas statute. D. Effect of Lawrence case on Bowers case and Reason for the Reversal of the Bowers case. The decision made in the Lawrence case, reversed the decision made in the Bowers case, providing that the Constitution affords protection to homosexual persons in their choice to engage in intimate relationships, and hence invalidated a law that prohibits homosexual sodomy (Hawkins, 2006). It challenged the narrow interpretation of the due process clause and the assumptions made in the Bowers case (Hawkins, 2006). The Lawrence case expanded the view on constitutional rights (Hawkins, 2006). Although the doctrine stare decisis has always been upheld by Courts, it may however not be applied where there are compelling reasons for its reversal, Lawrence v. Texas, 539 U.S. 558 (2003). As explained by the Court, the Bowers case causes uncertainty as it contradicts precedents before and after such decision was made, Lawrence v. Texas, 539 U.S. 558 (2003). It cited that Bowers case does not withstand careful analysis, first because the traditional view of a practice considered as immoral is insufficient to uphold a law prohibiting the said practice, and secondly, the protection given by the Fourteenth Amendment on Due Process extends to intimate choices made by unmarried persons Lawrence v. Texas, 539 U.S. 558 (2003). Hence, the Bowers case was reversed. 2. A. Equal Protection Rationale by Justice O’Connor In Justice O’Connor’s opinion, the Equal Protection Clause essentially provides that all persons similarly situated should be treated alike,” Cleburne v. Cleburne Living Center, Inc, 473 U.S. 432, 439 (1985). She explained that a legislation would be recognized as valid and will be sustained “if the classification drawn by the statute is rationally related to a legitimate state interest,” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). If a law, when applied, harms a politically unpopular group, the Court may review such law and strike it down under the Equal Protection Clause, Lawrence v. Texas, 539 U.S. 558 (2003). She explained that the statute “makes sodomy a crime only if a person engages in deviate sexual intercourse with another individual of the same sex,” but not if committed by opposite-sex partners, Lawrence v. Texas, 539 U.S. 558 (2003). This then, “treats the same conduct differently solely on the participants,” Lawrence v. Texas, 539 U.S. 558 (2003). She stated that homosexuals are treated unequally in the eyes of the law by subjecting to criminal sanction that particular conduct done by homosexuals, and branding them as criminals Lawrence v. Texas, 539 U.S. 558 (2003). Justice O’Connor stated that moral disapproval is not a legitimate state interest to justify banning of homosexual sodomy and is insufficient to satisfy the requirements of a rational basis review under the Equal Protection Clause, Lawrence v. Texas, 539 U.S. 558 (2003). She explained that “legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law,” Romer v. Evans, 517 U.S. 633 (1996). The statute which, applies to private, consensual acts reveals “a statement of dislike and disapproval against homosexuals” rather than stopping a criminal behavior, Lawrence v. Texas, 539 U.S. 558 (2003). Hence, she says that the said statute branding a class of persons as criminal solely on the moral disapproval of that class and their conduct, would be contrary to the Equal Protection Clause, Lawrence v. Texas, 539 U.S. 558 (2003). B. Equal Protection Rationale rather than Due Process Rationale. Justice O’Connor used the Equal Protection Rationale rather than the Due Process Rationale as the Texas statute itself manifests “a desire to harm a politically unpopular group” to which the equal protection clause deems relevant as basis for its review, Lawrence v. Texas, 539 U.S. 558 (2003). She says that the equal protection clause serves as a relevant guide for review in cases where the challenged legislation affects personal relationships as applied to a number of cases decided by the Court, Lawrence v. Texas, 539 U.S. 558 (2003). C. Rational Basis Test used by Justice O’Connor. Justice O’Connor used the Equal Protection Clause as her basis, to determine whether the said statute complies with the requirement of the Constitution, Lawrence v. Texas, 539 U.S. 558 (2003). She compared thoroughly, the effect of the specific provision of the Texas law prohibiting the said conduct committed by homosexuals as to that when committed by opposite-sex partners, Lawrence v. Texas, 539 U.S. 558 (2003). Upon examination, there is indeed an unequal treatment in the eyes of the law as the same conduct is treated differently based solely on the participants, Lawrence v. Texas, 539 U.S. 558 (2003). She also determined whether the said statute provided a classification rationally related to legitimate state interest, Lawrence v. Texas, 539 U.S. 558 (2003). The State’s argument in upholding the Texas law is the promotion of morality. As held in many cases by the Court, moral disapproval is not sufficient to satisfy the Equal Protection Clause especially if it discriminates against a group of persons, Lawrence v. Texas, 539 U.S. 558 (2003). Indeed, it discriminates against homosexuals which is disfavored under the Constitution, Lawrence v. Texas, 539 U.S. 558 (2003). D. Justice O’Connor’s thoughts on the reversal of the Bowers’ case. As stated in Justice O’Connor’s opinion, she was part of the Bowers case and does not agree with the Court in overruling the said case, Lawrence v. Texas, 539 U.S. 558 (2003). Nevertheless, she agrees with the Court in holding that the Texas statute banning same-sex sodomy is unconstitutional on the ground that the said statute does not comply with the Equal Protection Clause, Lawrence v. Texas, 539 U.S. 558 (2003). She pointed out that this case presents a different issue as that held in the Bowers case, Lawrence v. Texas, 539 U.S. 558 (2003). In the Bowers case, she explained that the issue then was whether the right to engage in homosexual sodomy was protected under the substantive component of the Due Process Clause, Lawrence v. Texas, 539 U.S. 558 (2003). The present case, however determines whether or not moral disapproval may be considered as a legitimate state interest for justifying a statute banning homosexual sodomy when examined under the Equal Protection Clause, to which she stated that it does not, Lawrence v. Texas, 539 U.S. 558 (2003). Hence, the invalidation of the Texas statute based on the Due Process Clause. 3. A. Objections of Justice Scalia on Justice Kennedy’s rationale. Justice Scalia objects to Justice Kennedy’s rationale first because he claims that homosexual sodomy is not a “fundamental right” which is protected under the Due Process Clause and which was neither declared by the Court in its decision, Lawrence v. Texas, 539 U.S. 558 (2003). The Court, he said, failed to establish that the Texas statute was unconstitutional based on the substantive due process clause as it only prohibits “States from infringing fundamental liberty interests,” and without strict scrutiny of the statute, Lawrence v. Texas, 539 U.S. 558 (2003). Secondly, the Court’s reliance on the case Griswold v. Connecticut, had nothing to do with substantive due process and right to privacy, Lawrence v. Texas, 539 U.S. 558 (2003). Even Eisenstadt v. Baird, 405 U.S. 438 (1972) which according to Justice Scalia was cited by the Court, had nothing to do with substantive due process but was based on equal protection clause, Lawrence v. Texas, 539 U.S. 558 (2003). Third, records would show that homosexual sodomy was then criminalized and prosecuted, and hence establishes that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition,” Lawrence v. Texas, 539 U.S. 558 (2003). Finally he said that the promotion of majoritarian sexual morality is considered as a legitimate state interest similar to laws prosecuting prostitution, adult incest, adultery, obscenity, and child pornography, which can survive rational-basis review, Lawrence v. Texas, 539 U.S. 558 (2003). B. Objections to Justice O’Connor’s Rationale. Justice Scalia pointed out that the Texas statute, on its face applies equally to all persons, whether it be men and women, heterosexuals and homosexuals, Lawrence v. Texas, 539 U.S. 558 (2003). They are all subjected to the prohibition of deviate sexual intercourse, Lawrence v. Texas, 539 U.S. 558 (2003). Although it distinguishes between the sexes insofar as concerns the partner with whom the sexual acts are performed, he opined that such cannot in itself be a denial of equal protection, Lawrence v. Texas, 539 U.S. 558 (2003). In his opinion, he stated that although the Texas law may have denied equal protection to “homosexuals as a class,” such a denial does not need to be justified as these are supported by the enforcement of traditional notions of sexual morality, Lawrence v. Texas, 539 U.S. 558 (2003). Justice Scalia claims that the cases cited by Justice O’Connor’s do not even support her application of “a more searching form of rational basis review” to the Texas statute, Lawrence v. Texas, 539 U.S. 558 (2003). Furthermore, the “more searching form” of Justice O’Connor as rational-basis for review was not explained as to what it consists of. Justice Scalia claims that Justice O’Connor “has seemingly created, judges can validate laws by characterizing them as ‘preserving the traditions of society’ (good); or invalidate them by characterizing them as ‘expressing moral disapproval’ (bad)”, Lawrence v. Texas, 539 U.S. 558 (2003). C. Scalia’s objections to the reversing of Bowers case. The overturning of the Bowers case he said, did not satisfy the requirements the requirements in overruling the principle of stare decisis, because first the foundations of the Bowers case have not been “eroded” by subsequent decisions, second, the Bowers case has not been subject to “substantial and continuing” criticism, and thirdly it has not induced “individual or societal reliance” that counsels against overturning, Lawrence v. Texas, 539 U.S. 558 (2003). Furthermore, the Bowers’ case validates laws based on moral choices, such as laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity, Lawrence v. Texas, 539 U.S. 558 (2003). The overruling of the Bowers case, according to Justice Scalia, puts into question these laws, Lawrence v. Texas, 539 U.S. 558 (2003). There was also no effort, he said, on the part of the Court, to explain the scope of its decision, Lawrence v. Texas, 539 U.S. 558 (2003). This, he says is “a massive disruption of the current social order” which the overturning of the Bowers case entails, Lawrence v. Texas, 539 U.S. 558 (2003). References Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Grossman, E. (2008). Privacy. American Jurisprudence, Second Edition. 62A § 1. Hawkins, B. (2006). The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas. Michigan Law Review, 105, 409. Lawrence v. Texas, 539 U.S. 558 (2003). Romer v. Evans, 517 U.S. 633 (1996). Read More