www.TheOldSchoolhouse.com
Throwing predictability of the law
out with the bathwater, just seven years
later the United States Supreme Court
reversed itself in Lawrence v. Texas. 27
The Court started out poorly by pref-
acing its opinion with “[f]reedom
extends beyond spatial bounds. Lib-
erty presumes an autonomy of self that
includes freedom of thought, belief,
expression, and certain intimate con-
duct. The instant case involves liberty
of the person both in its spatial and in
its more transcendent dimensions.” 28 It
gets worse. First, consider the Bowers
opinion. There the Court refused to ac-
knowledge a right that had never been
recognized as being protected by the
Constitution before. Homosexual con-
duct had never been considered pro-
tected before, so why start now? Recall
the Court’s holding that absent a con-
nection to previously protected rights,
“any claim that these cases neverthe-
less stand for the proposition that any
kind of private sexual conduct between
consenting adults is constitutionally
insulated from state proscription is
unsupportable.” 29
The lower court upheld the Texas stat-
ute that outlawed homosexual conduct
citing Bowers as the federal authority
behind its decision. 30 Even though the
statute in Bowers was similar to that in
Lawrence and, therefore, the preceden-
tial power of the earlier opinion should
have been honored (after all, it was not
an old opinion, published in 1986,) the
Court nonetheless agreed to address
three questions:
1. Whether petitioners’ criminal
convictions under the Texas “
Homosexual Conduct” law—which crimi-nalizes sexual intimacy by same-sex
couples, but not identical behavior
by different-sex couples—violate the
Fourteenth Amendment guarantee
of equal protection of the laws.
2. Whether petitioners’ criminal con-
victions for adult consensual sexual
intimacy in the home violate their
vital interests in liberty and privacy
protected by the Due Process Clause
of the Fourteenth Amendment.
3. Whether Bowers v. Hardwick, supra, should be overruled? 31
Shouldn’t today’s legal decisions be
consistent with yesterday’s? Not if you’re
a Supreme Court Justice; that’s the same
thing as being a god (little “g”).
As a slap in the face of the previously
constituted court, the Lawrence Court
stated:
Having misapprehended the claim
of liberty there presented to it, and
thus stating the claim to be whether
there is a fundamental right to en-
gage in consensual sodomy, the
Bowers Court said: “Proscriptions
against that conduct have ancient
roots.”…In academic writings and in
many of the scholarly amicus briefs
filed to assist the Court in this case,
Simply put, the mere act of replacing one justice or another
can reverse hundreds of years of legal precedents.
