Friday, September 14, 2012

Bowers v. Hardwick case brief

 
  • Bowers v Hardwick- respondent was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home. Respondent is a practicing homosexual and asserts that the GA statute as administered by the State, places him in imminent danger of arrest and that the statute for several reasons, violates the Federal Constitution.
    • Fundamental liberties include those that are “implicit in the concept of ordered liberty such that neither liberty nor justice would exists if they were sacrificed. Also, could be characterized as those liberties deeply rooted in this Nation’s history and tradition.
    • The court finds that under the formulations of “liberty” states, none would extend the right to homosexuals to engage in acts of consensual sodomy.
    • Has he alleged a fundamental right that has put him to heightened scrutiny
      • Ct says that he doesn’t have a fundamental right to engage in homosexual sodomy
        • Also says that there has been a history of criminal, prohibitable sodomy/homosexuality
      • What did ct say about to statute lacking a rational basis
        • Morality is a rational basis
        • Gov’t can prohibit conduct b/c it thinks it is immoral
        • The only reason to give to justify it is moral (narrow reading)… can the belief that something is immoral be the sole reason for moral legislation

  • There are two kinds of relevant questions (applied against federal government is 5th amendment and applied against the states is the 14th amendment)
      • Due process
      • Equal protection
        • One thing they have in common is that it is possible under both theories to get to a place where a law passed is subject to some kind of heightened scrutiny
          • If a state (or federal gov’t) wants to pass a law and wants courts to enforce that law a court has to determine that the state has a really good reason for what its doing and that they have draw the law so that it doesn’t cover more people than are necessary (reason and fit)
            • Cant have a law that throws everyone in jail… goes to fit (valid reason but too broad)
            • Can get to heightened scrutiny in two ways
              • Fundamental right (Due process) there are some things that are so important that if the gov’t wants to interfere w/ these things they have to have a really good reason and there has to be no errors in fit
              • Suspect Class (Equal Protection) even if gov’t is doing something legal, not a fundamental right for due process (giving out speeding tickets) but is only doing it against a particular group (blacks)
                • There are also equal protection fundamental rights a class of things that aren’t important on their face but once the gov’t gives them to someone then they become important to everyone (right to vote??)
              • Once you get to heightened scrutiny you lose!!! Once you trigger it then it is more than likely unconstitutional…
        • Both have a rational basis component whether or not you are dealing w/ fundamental right or suspect class you still can ask a due process or equal protection question about any law
          • So if there is a statute that says “all murderers shall be put in prison no less than 40 years” someone could make an argument that the gov’t cant distinguish b/w murderers and regular people albeit a losing argument but it can be made (the distinction drawn w/in the law is irrational)
          • You can make a similar rational basis claim under due process (even though what gov’t is regulating/ taking away is not important at all … the very thing makes no sense/ there is no basis for it)
            • What counts as a good reason is anything that is rational, fit eve isn’t stringent

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