Sunday, March 25, 2012

Bowers v. Hardwick case brief

Bowers v. Hardwick (1986)
Court upheld sodomy statute that on its face did not distinguish b/w homosexual and heterosexual conduct, but was selecctively enforced against gays. No right to homosexual sodomy in this country, not implicit in “concept of ordered liberty” nor “deeply rooted in Nation’s history and traditions.” Distinction b/w protected space and protected conduct.

EP Argument:
Homosexuals v. Heterosexuals. Problems w/EP argument: The statute is not necessarily heterosexuals v. homosexuals, but rather anyone who engages in sodomy. The statute is facially neutral with respect to the classification which we think is operative in this case. The standard of review for facially neutral statutes is rational basis. The EP argument would be tenuous.

Substantive Due Process:
Deprivation of liberty argument.

Sex Discrimination Argument:
This would get you intermediate scrutiny.

Majority’s distinguishing
Hardwick from line of precedents: Said line of precedent dealing with right to bear and not to bear children. Those cases about marriage, family, procreation.
  • Importance of how the issue is characterized—White frames the question as whether there’s a constitutional right to homosexual sodomy. However, the court asks something different—whether the Georgia statute was constitutional under the Supreme Courts cases re: right to privacy issues.
  • Posner—criminalizing homosexual behavior doesn’t stem from the behavior, but rather it stems from targeting a group. From this interpretation, discrete and insular minorities (Caroline), should be focused on--see Romer (can’t target group w/o underlying animus towards the group).
  • Doing v. Being—legacy of Bowers.
  • Powell v. State—GA Supreme Court recently struck down their sodomy law.
    After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.

    Held: The Georgia statute is constitutional. Pp. 478 U. S. 190-196.

    (a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's 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. 478 U. S. 190-191.

    (b) Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. Pp. 478 U. S. 191-194.

    (c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 478 U. S. 194-195.

    (d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, 394 U. S. 557, distinguished. Pp. 478 U. S. 195-196.

    (e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. P. 478 U. S. 196

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