Justice at Last:

 

Gay Equality, the Right to Privacy, and Substantive Due Process

 

 

Introduction: Lawrence v. Texas and Bowers v. Hardwick

 

Many gay people are currently celebrating the US Supreme Court decision handed down on June 26, 2003, invalidating all state sodomy statutes as applied to private, non-commercial oral and anal intercourse between both same-sex and opposite-sex couples (Lawrence v. Texas, 539 U.S. 558).  Although the facts pertaining to this case are already widely known, a brief recapitulation follows:

 

On September 17, 1998, the Harris County police department, responding to a false report of a weapons disturbance filed by a neighbor, entered the apartment of John Lawrence and found both Lawrence and another man, Tyron Garner, engaging in a sexual act that ran afoul of the state prohibition against “deviate sexual intercourse.”  The applicable state law was the Texas Penal Code Ann. Sec. 21.06(a), which provided that “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex,” where such conduct was defined as “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.  The men were dragged off to jail for the night wearing nothing but their underwear, and were charged and convicted by a Justice of the Peace the next day.  They exercised their right to a trial de novo in Harris County Criminal Court, where they submitted numerous motions challenging their convictions under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, as well as under both equal protection and privacy provisions of the Texas state constitution.  The trial judge dismissed these motions, and convicted both men, whereupon they appealed their convictions to the Texas Court of Appeals for the Fourteenth District (an influential middle-tier court in the state court hierarchy).  After hearing the case en banc, the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S.W.3d 349 (Tex.App. 2001).  In a move that reeked of cowardice, the Texas Court of Criminal Appeals (the highest state court dealing with criminal appeals) refused to grant certiorari.  Several lower courts in the Texas hierarchy had already found sec. 21.06 to be unconstitutional in other contexts and in other jurisdictions, and it appears clear to this commentator that the Court of Criminal Appeals refused to entertain the appeal for purely political reasons.  Justices sitting on this court are elected, and this court probably refused to hear the appeal due to the fact that case law from other intermediate courts of appeals, as well as from the Texas Supreme Court (which deals with civil cases as opposed to criminal cases) would have compelled reversal of the men’s convictions.  At this point, the US Supreme Court granted certiorari, and the case was argued on March 26, 2003.  The decision was handed down on June 26, 2003, reversing the Texas state courts and vacating the convictions of the appellants.

 

Most people who are even vaguely familiar with this decision are also aware of the fact that this decision involved recognition by the Court of the right to privacy, and that the Lawrence Court explicitly overturned an earlier decision (Bowers v. Hardwick, 478 U.S. 186 (1986)) in which the Court had denied the claim of a right to sexual privacy that had been made by a gay man in Georgia who had been arrested (but ultimately not prosecuted) as “at best, facetious.”  There were striking similarities between the facts involved in both cases.  Michael Hardwick was a bartender in a gay bar in Atlanta, GA, who had been the target of police harassment.  The police had also entered the home of Hardwick in 1982, after having been admitted to the home in error by a houseguest.  Hardwick was found engaging in oral sex with another man.  Georgia’s sodomy statute was particularly harsh, providing for the mandatory incarceration of any person convicted under the statute for at least one year and at most 20 years.  Although the District Attorney dropped the charges against Hardwick, Hardwick brought an action in federal district court challenging the constitutionality of the statute.  The district court dismissed Hardwick’s suit under rule 12(b)(6) (failure to state a claim upon which relief can be granted), and Hardwick appealed.  The US Court of Appeals for the Eleventh Circuit, in a divided opinion, reinstated Hardwick’s complaint and declared the statute to be unconstitutional.  The state appealed, and the US Supreme Court granted certiorari.  The Court handed down its decision (Bowers v. Hardwick, 478 U.S. 186) on March 31, 1986.

 

This decision was widely regarded as one of the coarsest, most insulting attacks upon both the legal rights and the dignity of gay people ever handed down by a court of law in a western nation.  Bowers became the target of both immediate and sustained criticism; even some conservative groups accused the Court of meddling in the most private of contexts (the home), and condemned this decision as an attack on the most basic rights imaginable.  Chief Justice Burger, in particular, wrote a concurrence in which he abandoned all pretence of ruling on the legal merits of the claim, and delivered himself of a religious tirade invoking Roman law, biblical interpretation, and sweeping claims to the effect that sodomy statutes had “ancient roots.”  He piously observed that gay sex was punishable by the death penalty under Roman law.  Some of the harshest criticisms were meted out by state supreme courts in the years that followed, as activists in the gay community turned to attacking state sodomy statutes before state supreme courts on state constitutional grounds, with considerable success.  The Kentucky Supreme Court, striking down the Kentucky sodomy statute (Commonwealth v. Wasson, 842 S.W.2d 487 (1992)) subjected the US Supreme Court to a blistering tongue-lashing.  Commenting on the US Supreme Court’s analysis in Bowers, the Kentucky Supreme Court stated that:

 

“To be treated equally by the law is a broader constitutional value than due process of law as discussed in the Bowers case. We recognize it as such under the Kentucky Constitution, without regard to whether the United States Supreme Court continues to do so in federal constitutional jurisprudence. "Equal Justice Under Law" inscribed above the entrance to the United States Supreme Court, expresses the unique goal to which all humanity aspires. In Kentucky it is more than a mere aspiration. It is part of the "inherent and inalienable" rights protested by our Kentucky Constitution. Our protection against exercise of "arbitrary power over the . . . liberty . . . of freemen" by the General Assembly (Section Two) and our guarantee that all persons are entitled to "equal" treatment (in Section Three) forbid a special act punishing the sexual preference of homosexuals. It matters not that the same act committed by persons of the same sex is more offensive to the majority because Section Two states such "power . . . exists nowhere in a republic, not even in the largest majority."

 

The purpose of the present statute is not to protect the marital relationship against sexual activity outside of marriage, but only to punish one aspect of it while other activities similarly destructive of the marital relationship, if not more so, go unpunished. Sexual preference, and not the act committed, determines criminality, and is being punished. Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals” (emphasis added).

 

Even some federal appeals court judges, who are bound by US Supreme Court precedent, expressed profound reservations relative to the Court’s reasoning and motives in Bowers.  Judge Reinhardt, considered to be one of the most liberal judges on the US Court of Appeals for the Ninth Circuit, dissenting in the case of Holmes v. California Army National Guard, 920 F. Supp. 1510 (N. D. Cal. 1996) stated that:

 

 

I recognize that we are bound by this court's recent decision that the military may discharge service members who engage in homosexual conduct.  See Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997).  Although I must follow that decision here, I note that it is necessarily rooted in Bowers v. Hardwick, 478 U.S. 186 (1986), a decision that I have previously described as similar in its bias and prejudice to Plessy v. Ferguson, 163 U.S. 537 (1896).  I remain confident that someday a Supreme Court with a sense of fairness and an adequate vision of the Constitution will repudiate Bowers in the same way that a wise and fair-minded Court once repudiated Plessy.  Indeed, I hope that day will not be long in coming.  In my view of the Constitution, there is no more justification for discrimination against individuals because of their sexual orientation, which is most frequently a happenstance of birth, than there is for discrimination against blacks, Hispanics or Asians – or against Catholics, Jews, or Muslims, who at least have the option to convert. (Holmes v. California Army National Guard, 920 F. Supp. 1510)

 

 

Bowers was regarded by most constitutional scholars to be one of the contemporary US Supreme Court’s most embarrassing and humiliating failures.  A. J. Powel, who provided the swing vote for the majority, publicly acknowledged that he had made a mistake and that he regretted his vote following his retirement from the Court.  At the time that cast his vote for the majority, he remarked to one of his clerks that he had never known a homosexual.  Ironically, that clerk was a closeted gay man.  Having observed the manner in which “coming out” transforms human behavior towards gay men and lesbians, the writer cannot help but wonder whether the gay community would have been spared the blight cast upon the entire community by Bowers had this clerk been able to come out to A. J. Powell.  It is widely known, for example, that A. J. Kennedy, who authored the majority opinion in both Lawrence and in Romer v. Evans, 517 U.S. 620 (1996) (in which the Court struck down an anti-gay Colorado state constitutional amendment in a move that was widely considered to be a harbinger of the Court’s action in Lawrence), had a gay male couple as next door neighbors, and that A. J. Kennedy and his wife frequently had weekend barbeques with this couple prior to the handing down of Romer.


 

 

Fundamental Rights and the Right to Privacy

 

 

Although most Americans believe in a right to privacy, few people are aware of the origins and extent of the right to privacy.  Many Americans mistakenly believe that the right to privacy is guaranteed them by the text of the US Constitution; yet nowhere in the text of the US Constitution is there any reference to a right to privacy.  Conservatives are fond of bashing the Court for the manner in which the Court derived this right, as well as the manner in which the Court has applied this right to contemporary issues that could not possibly have been foreseen by the Framers of the Constitution.  Yet the vast majority of Americans believe that they are entitled to a right to privacy; differences in the beliefs of Americans with respect to the entitlement of this right tend to relate to the extent to which this right is seen as being applicable against the state and US government, not as to whether or not this right actually exists.

 

There are many rights that Americans take for granted, but which are not mentioned anywhere in the text of the US Constitution.  In the pantheon of rights recognized by the US Supreme Court, some rights are considered to be “fundamental,” whereas other rights are not considered to be “fundamental.”  Those rights that are explicitly declared in the text of the US Constitution are referred to as “enumerated” rights, whereas those rights that are not mentioned anywhere in the text of the Constitution are referred to as “unenumerated” rights.  All enumerated rights are fundamental rights; however, not all fundamental rights are enumerated rights.  An example of a fundamental, enumerated right is the right to freedom of speech.  The First Amendment is very specific in granting to citizens of the United States the right to freedom of speech, and is very clear in stating that Congress may not abridge this right (this essay will also discuss the incorporation of this, and other, rights against the states via the Due Process Clause of the Fourteenth Amendment).  The right to freedom of speech is therefore an enumerated, fundamental right.  However, through interpretation of the Clause recognizing the right of people peaceably to assemble, and the Clause recognizing the right of people to petition the government for a redress of grievances, the US Supreme Court has also recognized the existence of the right of expressive association and the right of intimate association.  These rights are not stated in the text of the Constitution, but are nevertheless recognized by the courts as being fundamental rights which are “peripheral” to the right of people to petition the government for a redress of grievances.  It therefore follows that the rights of intimate association and the rights of expressive association are unenumerated, fundamental rights.

 

In Palko v. Connecticut, 302 U.S. 319 (1937), the US Supreme Court held that the US Constitution protected those rights that were “implicit in the concept of ordered liberty,” in addition to those rights which are guaranteed all Americans by the text of the Constitution.  Stated differently, the Court held that those rights which were such that “neither liberty nor Justice would exist if they were sacrificed” were fundamental in nature, despite the fact that many such rights were not articulated anywhere in the text of the Constitution.  The Court attempted to narrow the scope of fundamental rights to those rights that were “rooted in the traditions and conscience of our people.”  This case is considered by constitutional scholars to be one of the most important cases ever decided by the Court.  In addition to creating a flexible standard for the derivation of fundamental constitutional rights, the Court also held that some of these rights were made binding on the states through incorporation under the Fourteenth Amendment’s Due Process Clause.

 

 

The Right to Sexual Privacy is First Recognized

 

 

It is arguable that the Court first recognized the existence of a right to sexual privacy in the case of Griswold v. Connecticut, 381 U.S. 479 (1965).  At that time, the State of Connecticut had on its books a statute that made it a criminal offence for an individual to use “any drug, medicinal article, or instrument” for the purpose of contraception, or to aid or abet any other person to use such an item for the purpose of contraception.  This applied even to married couples.  The Court overturned this legislation, but did so on the grounds that the statute in question interfered with a right to privacy that the Court identified as emanating from several guarantees identified in the Bill of Rights.  More specifically, the Court maintained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  The Court went on to maintain that various guarantees enumerated in the Bill of Rights created a zone of privacy.  The Court reasoned that the “penumbras” of the First, Third, Fourth, Fifth, and Ninth Amendments, through the simultaneous operation of these Amendments, created a zone of privacy that rose to the level of being a fundamental constitutional right.  The Court was specific in identifying the manner in which the First Amendment had already been interpreted as granting to all citizens the right of intimate association and the right of expressive association.  The Court noted that the Third Amendment, with its prohibition against the quartering of soldiers in any house in times of peace without the consent of the owner, created “another fact of that privacy.”  The Court relied upon the plain language of the Fourth Amendment, which explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” as creating another facet of the right to privacy.  Turning to the Fifth Amendment, which is best known to Americans for its Self-Incrimination Clause, the Court held that this Clause added further substance to the right to privacy.  Finally, the Court noted that the Ninth Amendment’s language and intent was consistent with the recognition of a right to privacy.  (The Ninth Amendment, of course, provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Phrased differently, the fact that the Constitution recognizes explicitly the existence of specific rights should not be taken as an indication that the Constitution limits the rights that citizens enjoy only to those rights which are recognized explicitly.)

 

In essence, the Court viewed the simultaneous operation of these rights, all of which are made binding on the states by the Due Process Clause of the Fourteenth Amendment (discussed below), as creating a fundamental right, in the form of a zone of privacy which was such that a prohibition of the purchase or usage of contraceptives by married couples (or the aiding and abetting of the purchase of usage of contraceptives by married couples) ran afoul of this fundamental right.  The Court then held that this fundamental right was incorporated against the states through the operation of the Due Process Clause of the Fourteenth Amendment.  This was an unusual case in the Court’s substantive due process jurisprudence, in that the substantive due process cases that followed (e.g. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)) relied upon interpretations of the word “liberty,” as this word appears in the Due Process Clause itself, to create zones of personal autonomy that cannot not be encroached on by the states absent, at a minimum, the existence of a legitimate state interest.  In his dissent in Lawrence, A. J. Scalia goes so far as to state that “[Griswold] expressly disclaimed any reliance on the doctrine of "substantive due process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause.”   This analysis fails to take into consideration the fact that the Griswold Court nevertheless invoked the Due Process Clause to incorporate the fundamental right derived from the penumbras and emanations of the constitutional provisions above against the states (see below for a description of incorporation).  There is clearly a degree of overlap between the concept of incorporation and the derivation of fundamental rights.  It is also clear that Scalia tried to parse out incorporation under the Due Process Clause from the rights which were so incorporated in an attempt to deny that the Griswold Court invoked substantive due process to arrive at its result.  The Griswold Court could have relied upon interpretations of the word “liberty” in the Due Process Clause itself as the wellspring of the right to privacy, but instead derived the right to privacy from the penumbras and emanations of the aforementioned constitutional provisions.  Either way, this was a substantive due process decision, Scalia’s reasoning notwithstanding.  Any reluctance on the part of the Griswold Court to state, explicitly, that it relied on substantive due process in its analysis must be discounted in the context of the disrepute that substantive due process, as a doctrine, had fallen into following the manner in which this doctrine had been stretched beyond all reasonable bounds in a much-debated earlier case (Lochner v. New York, 198 U.S. 45 (1905)).

 

Conservatives attacked the reasoning of Griswold when this decision was handed down, and continue to do so to this day.  While this commentator does not consider the logic underlying Griswold to be unsound, the language chosen by the Court to explicate its reasoning was perhaps unfortunate.  Terms such as “penumbras” and “emanations” are terms used to describe phenomena observed at a séance, rather than terms one would expect to use in the reasoning of an analytically sound US Supreme Court opinion.  Many legal scholars believe that Griswold is the lynchpin of the right to privacy as that right is currently recognized, and Griswold has been attacked by numerous anti-gay and anti-abortion protestors as these individuals (and groups) attempt to recriminalize abortion, and as they attempt to recriminalize and remedicalize homosexuality.  However, the logic employed by the Griswold Court differs significantly from the logic employed in other decision pertaining to the right to privacy, and such attacks may in fact prove fruitless to social conservatives, even were they to succeed in overturning Griswold (which this commentator considers to be a highly unlikely development, notwithstanding the current political climate and notwithstanding recent developments that may alter the ideological slant of the US Supreme Court).

 

 

The Right to Sexual Privacy is Expanded

 

 

The Court expanded the reach of the right to privacy derived in Griswold in a decision striking down a Massachusetts statute that made it a felony for any person other than a doctor, or a pharmacist acting in accordance with a doctor’s orders, to distribute contraceptives to unmarried people in Eisenstadt v. Baird, 405 U.S. 438 (1972).  Here, the Court employed an equal protection analysis invoking the Equal Protection Clause of Section I of the Fourteenth Amendment, extending the right to privacy identified in Griswold.  The Court made it clear that the right to privacy inheres both in the marital relationship and in the individual.  In asserting that the right to privacy inhered in the individual, the Court relied upon precedent involving the right of the people to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (see Stanley v. Georgia, 394 U.S. 557 (1969); Skinner v. Oklahoma, 316 U.S. 535 (1942); Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)).

 

The gravamen of any equal protection challenge usually lies in the assertion that two groups of individuals who are similarly situated are treated differently, with resultant adverse impact to the members of one of the groups in question.  In this case, the groups in question consisted of unmarried people and married people.  Given the nature of the right to privacy – the fact that it inheres in the individual, not just in the marital status of the individual – it is plain to see how the Court reached the result and overturned the statute in question.  The Court identified the right to privacy in Griswold, and used the Equal Protection Clause to extend the right to privacy to unmarried people in Baird.

 

It should be important to emphasize that both Griswold and Eisenstadt were decided by invoking the doctrine of substantive due process (described below).  Griswold was decided in terms of the zone of privacy created by the simultaneous operation of several of the Amendments located in the Bill of Rights, which were then made binding upon the states by operation of the Due Process Clause.  Eisenstadt was decided by extending the right to privacy identified in Griswold to unmarried couples by invoking the Equal Protection Clause of the Fourteenth Amendment.  The Eisenstadt Court also invoked precedent involving the right of the people to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (see the above citations), but this analysis was tangential to the finding of a right to privacy as identified in Griswold.  Chief Justice Burger, in his dissent, bemoaned the Court’s analysis in Eisenstadt as “regrettably [harkening] back to the heyday of substantive due process.”  In fact, both Griswold and Eisenstadt invoked the doctrine of substantive due process, notwithstanding Chief Justice Burger’s complaint.

 

At this point, the concept of substantive due process requires description and elucidation.

 

It should be noted at the outset that the term “substantive due process” is quite literally an oxymoron, similar to the term “yellow red car” or the term “square triangle.”  This concept cannot be described without explaining a closely-related concept known as incorporation.

 

Although the US Constitution sets forth a description of the composition and functions of the three branches of government, most constitutional scholars maintain that the US Constitution is primarily a procedural document.  The guarantees of the first eight Amendments apply to the behavior of Congress and set limits to what Congress may and may not do, as well as describing the rights of accused individuals against the US government.  Nowhere in the Bill of Rights, however, is it stated or implied that these guarantees are also applicable against the states (and political subdivisions of the states, such as school districts, towns, and cities).  Yet today, we recognize that almost all of the guarantees against the US government that are explicit in, or that have been derived from interpretation of, the first eight Amendments to the US Constitution are also binding upon the states.

 

After the Civil War, three Amendments which are now referred to as the Civil War and Reconstruction Amendments were ratified.  These were the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth Amendment.

 

The Thirteenth Amendment expressly prohibits slavery and involuntary servitude, except as punishment for a crime.  The Fourteenth Amendment is considerably more complex, and will be discussed below.  The Fifteenth Amendment expressly prohibits denial of the vote to persons on the basis of race or prior condition of servitude (slavery).  These Amendments were passed to ensure that freed slaves and African-Americans would receive fair treatment at the hands of the states, particularly at the hands of those states that had formed the Confederacy during the Civil War.

 

 

The Fourteenth Amendment: Overview

 

 

The Fourteenth Amendment has five sections.  Section Five permits Congress to enforce the other sections through the passage of appropriate legislation.  In the context of this analysis and the right to privacy, Section One is the most significant.  Section One of the Fourteenth Amendment provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

 

The first sentence of Section One is self-explanatory and is of little relevance to the contents of this essay.  However, the second sentence articulates three distinct Clauses, which are known as the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause.  A massive body of case law has been built through analysis and implication of the Due Process and Equal Protection Clauses.

 

 

The Fourteenth Amendment: Privileges or Immunities Clause

 

 

According to most constitutional scholars, the purpose of the Privileges or Immunities Clause was to make binding upon the states the first eight Amendments to the US Constitution, together with Section 9 of Article I of the US Constitution.  Most constitutional scholars blame the fact that this Clause was virtually written out of the Constitution on Justice Miller, for his majority opinion in the Slaughter-House Cases, 83 U.S. 36 (1873).  Robert C. Palmer, however, writing for the University of Illinois Law Review, takes a distinctly different view as pertains to this matter.  Palmer describes and defends the reasoning of Justice Miller, and views Justice Miller’s analysis in the Slaughter-House Cases as reflective of a moderate, middle course, and contextually correct interpretation of this Clause.  Palmer, however, contends that Justice Miller, writing for the majority, correctly construed the Privileges or Immunities Clause.  More specifically, Palmer contends that Justice Miller interpreted this Clause as making binding upon the states the first eight Amendments and some of the provisions of Section 9 of Article I of the US Constitution.  Palmer argues that true blame for the truncation of the reach of this Clause lay firmly at the door of Chief Justice Waite, who wrote for the majority in the case of United States v. Cruikshank, 92 U.S. 542 (1875).  According to Palmer, C. J. Waite adopted an approach to judicial federalism premised on the notion that there was absolutely no overlap between state and federal powers.  Palmer argues that Waite “refrained completely from quoting the fourteenth amendment” and that “[h]e did not base his argument on the language of the privileges or immunities clause. He made no attempt to explain the privileges or immunities clause or the comity clause. Waite quoted the fourteenth amendment only when considering equal protection and due process rights.” In short, Palmer argues that the careful analysis of Justice Miller in the Slaughter-House Cases was ignored by C. J. Wait in Cruikshank.  Constitutional scholars agree that the reach and significance of the Privileges or Immunities Clause was severely truncated, forcing subsequent Courts to rely more heavily on the Due Process Clause to secure individual rights against the states.  Since the Privileges or Immunities Clause was intended to describe and to define the rights of people as opposed to corporations, the manner in which this Clause was written out of the Constitution in Cruikshank was most unfortunate, in that it resulted in a situation in which individual rights were seen as being the result of government grants as opposed to being inherent in the individual (see Griswold, supra).  This was a formulation that the American people would have most vehemently rejected; for a people that had just fought the Revolutionary War, personal rights inhered in individuals and were thus decisively different from corporate rights.  The Due Process Clause was a more suitable vehicle for the protection of corporate rights than it was for the protection of personal rights, but as a result of Cruikshank, the Due Process Clause became the vehicle whereby the Court ultimately incorporated most of the rights guaranteed persons against the US government by the first eight Amendments against the states.

 

It should be mentioned that the US Supreme Court recently breathed new life into the Privileges or Immunities Clause, invoking this Clause for the first time since its truncation as described above, in the case of Saenz v. Roe, 526 U.S. 489 (1999); this case dealt with the rights of welfare recipients moving to states which have higher welfare benefits than the states from which the recipients moved.  Some scholars have speculated that the Privileges or Immunities Clause will eventually replace the Due Process Clause as the vehicle for granting to individuals additional rights against the states, once the elasticity of the Due Process Clause is exhausted.  With its emphasis on individual rights, this Clause would certainly be more congruent with the intent of the authors of the Fourteenth Amendment.

 

 

The Fourteenth Amendment: Due Process of Law

 

 

There are actually two Due Process Clauses located in the text of the Amendments to the US Constitution.  The Fifth Amendment includes a Due Process Clause, stating that no person shall “be deprived of life, liberty, or property, without due process of law.”  The Fourteenth Amendments Due Process Clause has already been quoted (supra).  For the purpose of analysis, the Court has interpreted these Clauses almost identically; under the US Constitution, there is virtually no difference between protections from federal or state action under these Clauses.  However, many state constitutions contain their own due process clauses, many of which are more generous by their terms, or as construed by state supreme courts, in extending protections to individuals, than are the Due Process Clauses of the Fifth and Fourteenth Amendments, both by their terms, and as construed by the US Supreme Court.

 

(Although the first eight Amendments to the US Constitution do not include an equal protection clause or any textual reference to equal protection, the US Supreme Court has construed the Fifth Amendment’s Due Process Clause as subsuming an equal protection component.  In Bolling v. Sharpe, 347 U.S. 497 (1954), the Warren Court held that it was inconceivable for Congress to impose an equal protection guarantee against the states unless the US government was also subject to the same guarantee.  This issue, however, falls outside the scope of this essay.)

 

The Due Process Clauses are ultimately derived, historically, from a similar clause in the Declaration of Magna Carta.  This document, agreed to by the King of England in 1215, states that “No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land.  The core meaning of this clause is that no person may be denied his life, liberty, or property should the law of the land forbids such a deprivation.  However, the US Supreme Court has interpreted the Due Process Clauses to have substantive components that actually prohibit legislatures from passing certain laws in the first place.  Extremely conservative jurists such as Antonin Scalia have declared this interpretation to be unsound and to constitute a “judicial usurpation” of the powers of the US government and of state legislatures.  Nevertheless, the distinction between procedural due process and substantive due process exists and is recognized by the contemporary US Supreme Court.  Furthermore, even Scalia and jurists who share this view acknowledge that substantive due process is here to stay.  The debate is not over whether or not to employ substantive due process; it is over the extent to which substantive due process should guide the Court and the extent to which the Court should rely on this doctrine in deciding cases involving the rights of individuals against the state.

 

·        Procedural Due Process

 

Procedural due process is premised on the concept of procedural fairness.  At a bare minimum, procedural due process requires that the individual must be apprised of the charges against him or her, and that the individual be granted a hearing at which he or she can dispute the charges.  This hearing must afford the individual a real chance to rebut the charges against him or her, and cannot be a mere sham.  Innocent people are sometimes wrongly convicted, and prohibitions against cruel and unusual punishments are also implicated in fair procedures.  In addition to being granted a fair and impartial hearing, the individual may not be arbitrarily deprived of life, liberty, or property without a showing by the government that a statute, ordinance, or regulation has been violated by the individual.  In other words, an individual whose behavior comports with the strictures imposed on his or her movements, actions, or activities by specific statutes, ordinances, or regulations, cannot be deprived of life, liberty, or property by the state.

 

However, due process does not end here.  A law may be clear, unambiguous, and carry the presumption of innocence, yet nevertheless be abhorrent to the majority of people.  Consider, for example, a law authorizing the execution of people who commit adultery or who are openly gay.  This is exactly the type of law that the sect known as “Christian Reconstructionism,” founded by the late Rousas J. Rushdoony, wishes to see passed in contemporary America.  Christian Reconstructionists believe that rebellious children and people who advocate or practice other religious beliefs should be stoned to death; furthermore, Christian Reconstructionists firmly believe that blasphemy, adultery and homosexual behavior should be criminalized, and those found guilty should also be stoned to death.  A literal reading of the text of the Due Process Clauses, absent an understanding that these Clauses exist for the purpose of protecting fundamental rights, would permit the existence of such a barbaric system of justice in the United States.

 

In the context of contemporary constitutional law, it is clear that, for the Due Process Clauses to mean anything, they must embody more than the mere “how” of the law (the manner in which the law is applied).  They must also embody the “why” of the law (which kind of laws may or may not be passed in the first place).

 

·        Incorporation: The Bill of Rights and the Due Process Clause

 

The Due Process Clause of the Fourteenth Amendment became the vehicle whereby the majority of the guarantees against the US government in the Bill of Rights were also made binding on the states.  In Gitlow v. New York, 268 U.S. 652 (1925), the US Supreme Court explicitly assumed that “freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.”  This was a First Amendment case, and the Court incorporated the guarantees of these First Amendment rights against the states (although the defendant, who distributed pamphlets advocating “criminal anarchy,” lost the appeal).  In this case, the conviction of Benjamin Gitlow on charges of “criminal anarchy” was sustained, where the definition of “criminal anarchy” was, in part, “the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.

 

Prior to the passage of the Fourteenth Amendment, the Supreme Court was adamant in refusing to extend the reach of the guarantees of the Bill of Rights against the states.  For example, in Barron v. Baltimore, 32 U.S. 243 (1833), the Court bluntly declared that “The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.”  In Pervear v. Massachusetts, 72 U.S. 475 (1833), the Court held that “The provision in the 8th article of the amendments to the Constitution, that "excessive fines" shall not be "imposed, nor cruel and unusual punishments inflicted" applies to national not to state legislation,” upholding the sentence of the appellant for selling intoxicating liquors without the requisite state permission.

 

Following the passage of the Fourteenth Amendment and the truncation of the reach of the Privileges or Immunities Clause, incorporation under the Due Process Clause was a slow process.  To some extent, it went hand in hand with the delimitation of certain rights as fundamental.  In Palko (supra), the Court incorporated fundamental rights against the states, but did not incorporate all of the rights guaranteed individuals by the text of the Bill of Rights.  The drive to incorporate the rights guaranteed individuals by the Bill of Rights against the states picked up speed during the 1940s and the 1950s.  Justice Hugo Black believed that incorporation should have been “total.”  Black believed that all of the rights guaranteed individuals by the text of the Bill of Rights should have been incorporated against the states, but he did not believe that other judicially derived fundamental rights should have been incorporated against the states.  Black would probably not have approved of the manner in which the right to privacy, which is a judicially derived fundamental right, has been incorporated against the states.

 

Justice Felix Frankfurter adopted a very different view towards incorporation.  He believed that the process of incorporation should have been incremental, and that only those sections of the Bill of Rights whose abridgement would “shock the conscience” of the federal courts should have been incorporated against the states (see Rochin v. California, 342 U.S. 165 (1952)).

 

·        Substantive Due Process

 

Substantive due process is a constitutional doctrine that holds that the Due Process Clauses of the Fifth and Fourteenth Amendments regulate not only the procedures that the government must follow when depriving a citizen who has broken a law of life, liberty, or property, but also the substance of legislation that can be enacted by legislative bodies.  This doctrine is controversial, and many right wing jurists reject its validity entirely (A. J. Antonin Scalia and A. J. Clarence Thomas represent examples of this mindset).  Nevertheless, substantive due process is the bedrock principle upon which rest many of the rights that most Americans take for granted, and few people doubt that it is here to stay.  The Court, which is the final interpreter of the law and of the US Constitution, has read into the Fifth and Fourteenth Amendments what could be characterized as “due substance” clauses.  The rights in question are made binding on the states through incorporation under the Due Process Clause of the Fourteenth Amendment.  The Court is empowered to interpret the word “liberty” as it appears in the Due Process Clauses.  Through interpretation of the word “liberty,” the Court has held that there is indeed substance to be protected by the Due Process Clauses.  The boundaries between procedural due process and substantive due process are not always clear, and the contours of this substance have been at issue in heated debates between “strict constructionists” and those who favor a more expansive interpretation of the Constitution.  The Rehnquist court elucidated its position as pertains to substantive due process by writing the following, excerpted from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992):

 

[The Fourteenth Amendment’s Due Process Clause] declares that no State shall "deprive any person of life, liberty, or property, without due process of law."  The controlling word in the case before us is "liberty."  Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since Mugler v. Kansas, 123 U.S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them."  Daniels v. Williams, 474 U.S. 327, 331 (1986).  As Justice Brandeis (joined by Justice Holmes) observed,

 

[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure.  Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.  Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring).

 

[T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation."  Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

 

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights.  We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States.  See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147-148 (1968).  It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution.  See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting).  But of course this Court has never accepted that view.

 

 

.It should be noted that Griswold (supra) (the case dealing with the right of married people to avail themselves of contraception) was decided by invoking substantive due process, notwithstanding the crabbed interpretation of this concept explicated by A. J. Scalia in Lawrence (supra).  The Griswold Court held that the right to privacy inhered in both the marital relationship and the individual, and the Griswold Court held that this zone of privacy was created, or generated, by the simultaneous operation of the “penumbras” and “emanations” arising from the interaction of several Constitutional Amendments (see above).  This analysis differed from the analysis invoked by the Court in Roe v. Wade, 410 U.S. 113 (1973).  In Roe and subsequent cases, the Court focused on a direct textual reference to “liberty” in the Due Process Clause of the Fourteenth Amendment to hold that the substantive component of the Due Process Clause prohibited the states from interfering with the right of women to choose to terminate their pregnancies during the first trimester; this right was considered by the Court to be “fundamental,” and women were able, following Roe, to invoke this right at any time during the first trimester, virtually without restraint.  This commentator believes that the result arrived at in Roe was correct, but that the Court was forced, by the nature of the right at issue and by then-prevailing medical standards pertaining to viability, to write an analytically questionable opinion.  Even ardent pro-choice attorneys have acknowledged that Roe was intellectually sloppy and poorly reasoned.  Following her Senate confirmation hearings, A. J. Ruth Bader Ginsburg opined that Roe could have been decided with greater intellectual coherence and clarity by invoking an equal protection analysis as opposed to the substantive due process analysis that ultimately prevailed.  Critics of Roe’s reasoning include Judge Richard Posner, who sits on the US Court of Appeals for the Seventh Circuit.  (This scholarly and conservative Court of Appeals broke new legal ground in 1997 by holding that gay schoolboy Jamie Nabozny could bring an equal protection challenge against the Ashland, Wisconsin school district for the school district’s intentional and obtuse failure to protect Nabozny from violent physical abuses that he suffered at the hands of some of his heterosexual classmates.)  Posner has referred to Roe as “an embarrassing performance” (Posner, Judicial Opinion Writing, 62 U.Chi.L.Rev, 1434 (1995)).  Nevertheless, the Rehnquist Court affirmed Roe twice, employing substantive due process on both occasions (see Webster v. Reproductive Health Services, 492 U.S. 490 (1989) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)).  It is black-letter law that “liberty” means more than mere freedom from physical restraint, and the Court has interpreted this word broadly, holding that liberty interests exist in a wide variety of social and personal contexts, and that some liberty interests are “fundamental” and cannot be curtailed by the states absent the most compelling of reasons, regardless of whether or not the states abide by principles of procedural fairness (see above).  In Casey, the Court defined liberty in terms of its numerous attributes, in what has become an oft-cited passage:

 

“At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

 

The irony of this statement, which followed the Court’s devastating ruling in Bowers v. Hardwick, 478 U.S. 186 (1986), is not lost on this commentator.  It was also not lost on the Lawrence Court, which took note of this statement and of the inconsistency created in the law both by this statement and by subsequent legal developments (e.g. Romer v. Evans, 517 U.S. 620 (1996), in which the Court affirmed the overturning of Colorado’s infamous anti-gay “Amendment 2” by the Colorado Supreme Court).

 

In 1967, the US Supreme Court handed down an opinion striking down “miscegenation” statutes (which prohibited white people from marrying non-white people).  The bulk of this decision (Loving v. Virginia, 388 U.S. 1 (1967)) rested on interpretation of the Equal Protection Clause; however, the Court also noted that the Virginia “miscegenation” statute “also deprive[s] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.”

 

In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court held that a Nebraska statute that made it illegal to teach children in any language other than English until the child had passed the eighth grade violated the Due Process Clause of the Fourteenth Amendment.

 

 

Correcting a Misfire: The Court Overrules Bowers and Apologizes

 

 

The US Supreme Court very seldom directly overrules itself, and on the few occasions that it does so, the Court takes great pains to explain why it has chosen to do so.  This is exactly what A. J. Anthony Kennedy, writing for the Lawrence majority, proceeded to do.  He criticized C. J. Burger for Burger’s sweeping statement, in Bowers, to the effect that prohibitions against gay sex had “ancient roots,” and, relying heavily on an extremely thorough briefing of the history of laws pertaining to sexual conduct in the United States, noted that American Colonial laws prohibiting gay sex were consistent with more general laws prohibiting non-procreative sex of any form, and that gay people were not often prosecuted for having sex in the privacy of their homes, even after laws were passed that expressly provided for such prosecutions.  (This commentator does not disagree with the cold, hard fact that gay bars were frequently raided by the police in the 1950s and 1960s; in the state of New York, it remained illegal for a bar to serve known homosexuals until 1966.  Police harassment took the form of arresting patrons on trumped-up charges of “indecency” or “lewd conduct” even after the change to liquor serving policy that occurred in 1966, culminating in the Stonewall riots of 1969; this bar operated without a liquor license and had mob ties.)

 

Cases in which the Court overrules itself are sometimes justified by the overruling Court on the grounds that societal consensus has changed with respect to the law in question.  For example, prohibitions against cruel and unusual punishment (prohibited by the Eighth Amendment) have resulted in usage of the electric chair being discontinued in states such as Georgia and Florida.  The Court has declared that the Eighth Amendment’s prohibition of cruel and unusual punishment “draws its meaning from evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 356 U.S. 86 (1958)).  What is important to note for the purposes of this essay is the fact that changes in societal consensus are often reasons for the Court to overrule itself, either directly or through a process of neglect combined with the opening of a new line of constitutional analysis.  However, in Lawrence, the Court not only overruled Bowers explicitly, but went to considerable pains to state that Bowers had been wrongly decided in the first case.  Consider the following statements from the Lawrence majority:

 

“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration, in and of itself, is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

 

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled…………

 

      The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

 

These statements are remarkable in that they constitute what can only be interpreted as an apology to gay Americans for a mean-spirited and ugly prior decision (Bowers) that dehumanized gay Americans and that mocked the claim that gay Americans enjoy any right of sexual privacy.  As this commentator has observed in an earlier essay (at www.doaskdotell.com/readers/chandler.htm), the tone of a US Supreme Court decision can be almost as important as the result.  Bowers was written in tones of sneering contempt; Lawrence, on the other hand, was written in tones stressing the dignity of gay men and lesbians, and emphasizing the magnitude of the Court’s error in Bowers.

 

The decision was written by A. J. Anthony Kennedy, and was joined by A. J. Stephen Breyer, A. J. Ruth Bader Ginsburg, A. J. David Souter, and A. J. John Paul Stevens.  A. J.  Sandra Day O’Connor wrote a separate concurrence, agreeing with the result but adopting an equal protection analysis.  O’Connor agreed that the Texas statute was unconstitutional, but refused to join her five colleagues in finding that the right to privacy under the Due Process Clause extended to the right of gay people to have sex in private.  Instead, she advanced an equal protection argument, positing that the best method of rectifying the injustice imposed on both gay and straight Americans by the existence of sodomy statutes would be to enforce them vigorously against all citizens; this would, of course, result in public outrage and rapid repeal of such legislation.  Although she did not accept the substantive due process analysis adopted by the majority of the Court, her vote provided a sixth voice on the Court finding that prohibitions against consensual gay (and heterosexual) sodomy violate the US Constitution.

 

 

Whining from the Right Wing

 

 

A. J. Antonin Scalia dissented and was joined by both A. J. Clarence Thomas and C. J. William Rehnquist.  Scalia’s dissent was lengthy, impassioned, and longer than the majority opinion.  In the dissent, Scalia angrily denounced the Court’s stare decisis jurisprudence for upholding Roe while overturning Bowers.  He pointed out that Roe had been affirmed twice, despite the fact that the Court had been under fire for handing down Roe in the first place, and angrily contrasted the Court’s behavior in upholding Roe with the Court’s behavior in overturning Bowers, furiously denouncing the Court for what he considered to be selective, result-oriented application of the doctrine of stare decisis.  A more searching examination of these cases and their societal and legal impact suggests to this commentator that this comparison is inapposite and without merit.  When Roe was handed down, many states were in the process of repealing their abortion statutes.  By the time Lawrence was decided, many state supreme courts had handed down decisions predicated on state constitutional grounds, invalidating their constitutionality and rendering them unenforceable; but only one state (Nevada) repealed its sodomy statute in the 17 year period between the handing down of Bowers and the handing down of Lawrence.  The impact of Roe was to polarize the nation in such a manner as to cause a deep divide in American society.  While Bowers certainly created an uproar, the impact of Bowers was largely (but certainly not entirely) limited to the lives of gay and lesbian Americans; furthermore, Bowers resulted in immediate, sustained, and vigorous criticism of the Court from many different quarters on the political spectrum (including criticism from such conservative organizations as the Cato Institute).  It was disingenuous of Scalia to wrench these cases from their temporal and factual contexts; yet Scalia has never been consistent in his jurisprudence, his claims to the contrary notwithstanding.  The above is further evidence of Scalia’s lack of intellectual coherence.

 

A careful reading of Scalia’s dissents in both Romer and Lawrence soon makes it clear that he continues to view gay people not as a group defined by sexual orientation or by an innate attraction to members of the same sex; instead, he views gay people as heterosexuals who choose to “behave badly” by accepting the “homosexual lifestyle.”  This crude and cruel analysis permits Scalia to compare gay people to adulterers, child molesters, murderers, and practitioners of incest and bestiality (see both dissents, ibid.).  He is apparently joined in this view of gay people by A. J. Clarence Thomas and by the late C. J. William Rehnquist.  His dissent in Lawrence consisted of page after page berating the majority for what he perceived to be errors in the majority’s analysis, particularly as pertains to stare decisis.  He also assailed the majority for adopting rational basis review “with bite,” claiming that the Court had “laid waste the foundations of [its] rational basis jurisprudence” and that it had applied “an unheard-of form of rational basis review.”  His hysterical statement to the effect that the overturning of Bowers created “a massive disruption of the current social order” reveals yet again the manner in which Scalia disguises serious analytical incompetence with rhetorical flourishes.

 

The Court “laid waste” to absolutely nothing.  While it is certainly permissible to question the manner in which the Court has blurred the tripartite analytical structure with which it approaches challenges to the constitutionality of legislation under the Due Process and Equal Protection Clauses, the Court’s behavior is not without precedent.  In the past, rational basis review almost always resulted in victory for the state, and the level of review applied in any particular case was virtually outcome-determinative (see Heller v. Doe, 509 U.S. 312 (1993)).  However, when it is clear to the Court that the legislation in question is intended to give effect to a bare desire to harm a politically unpopular group, the traditional rational basis standard of review becomes more searching.  As A. J.  O’Connor remarked in her concurrence in Lawrence:

 

When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

 

      We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "'discriminate against hippies.'" 413 U.S. at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id. at 535-538. In Eisenstadt v. Baird, 405 U.S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences -- like fraternity houses and apartment buildings -- did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group" -- specifically, homosexuals. 517 U.S. at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post at ___ (opinion of SCALIA, J.).

 

In short, the form of rational basis review applied by the majority in Lawrence is not “unheard-of.”  It is a form of rational basis review that has been applied several times in the past when the Court has determined that the legislation in question was intended to harm politically unpopular groups.

It is important to stress the fact that, although Lawrence directly overruled Bowers, Lawrence does not make all state sodomy statutes facially unconstitutional.  A statute is only deemed to be facially unconstitutional if there exist no circumstances whatsoever under which application of the statute could ever be found to be constitutional (United States v. Salerno, 481 U.S. 739 (1987)).  In Lawrence, the Court held that state sodomy statutes are unconstitutional as applied to consenting adults acting in private.  This still renders it possible for the police to engage in entrapment of gay men and lesbians by inducing them to agree to have sex in such settings as public parks.  While heterosexual men and women are frequently ignored (or even treated with a nod and a wink) by police if observed having sex in parked cars out of sight of the general public, gay men remain the target of sting operations (often named “bag a fag” operations) to entice them into having sex in such “public” settings.  Only the removal of sodomy statutes from the books of those states that still carry them will guarantee enduring freedom from such discretionary executive abuses.

 

Life after Lawrence: Vigilance and Care

 

Changes in the composition of the Court as the result of the confirmation of Chief Justice John Roberts and the pending confirmation of Harriet Miers could have a profound impact on the direction of the Court for several decades.  At the time of writing, it is difficult to determine the nature of this impact.  Neither candidate has expressed any views pertaining to the issue of equality for gay men and lesbians, and the hard right is currently annoyed and angered by the fact that Harriet Miers hosted a conference attended by several pro-choice icons and feminists.  It is known that John Roberts, while working as a partner at Hogan & Hartson, provided assistance to Jean Dubofsky, the former Colorado Supreme Court Justice who argued before the US Supreme Court for the plaintiffs in Romer v. Evans (which is to say that he provided assistance to the litigator who argued that Colorado’s Amendment 2 was unconstitutional).  However, it is impossible, on the current record, to determine whether he believed in what he was doing.

 

This commentator considers it highly unlikely that the US Supreme Court would reverse Lawrence v. Texas even should a vehicle arrive in the form of a legitimate Article III case or controversy.  Bowers was decided 17 years before Lawrence, and a sudden reinstatement of Bowers would require the invalidation of preceding case law turning on substantive due process, undermining Loving, Meyer, Roe, and numerous other cases.  The result would necessarily, in the opinion of this commentator, be a constitutional shambles.  The US Supreme Court derives its prestige from the good will and esteem of the American people.  It does not have an army that can enforce its rulings.  That good will is dependent on its consistency and its reliability.  The ringing tones in which the Court affirmed the dignity of gay Americans, together with the tremendous strides that the gay community has made over the course of the past two decades, would be extremely difficult for the Court to reconcile with another sneering attack.  Furthermore, most Americans would be appalled were they to be told that the states could ban contraception, interracial marriages, and teaching foreign languages to children; the resulting backlash would constitute a serious setback for the hard right, notwithstanding the manner in which the Bush Administration has employed the federal government as another arm of the Republican party.  In short, the Court took a terrible beating after it handed down Bowers.  It would not behove the Court to repeat the slander immediately following such a resounding self-excoriation.

 

Acknowledgements:

With grateful thanks to the following individuals for their time, effort, and patience:

  • Britton, Kathleen – for insisting that I emphasize the feelings and emotions of the individuals impacted by the Court’s decisions
  • Ensor-Smith, Beryl Eileen – for her review of this material from the standpoint of an academic living in a country with a very different legal system
  • Hurley, Dave – for his patience and kindness in hosting this essay on www.thehomosexualagenda.org (where this essay will be published)
  • Leonard, Arthur (Professor of Law, New York University Law School) – for his guidance relative to  substantive due process
  • Moulton, Adrienne – for her review of this material from the standpoint of a loving sister living in a country with a very different legal system

 

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©Copyright 2005 by Philip Chandler. All rights reserved subject to fair use. Reprinted here with permission as a courtesy to readers.

Here is the author’s new blog (2/2007): http://gayequalityandthelaw.blogspot.com/index.html

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