Assignment Introduction: Assume I am your student and I come to you with the following question: Professor, how is it that in the relatively short span of seventeen years, the United States Supreme Court totally reversed itself on the constitutionality of democratically passed laws that criminalized consensual homosexual sex? What I mean professor is – here let me show you …
In Bowers v. Hardwick, 478 U.S. 186 (1986) the Supreme Court observed, in part,
“It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally, Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U.Miami L.Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.5 In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.6 In fact, until 1961,7 all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U.Miami L.Rev., supra, at 524, n. 9. Against this background, 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.”
Then professor, just seventeen years later in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court ruled that the U.S. Constitution (which did not change by one word, comma, period or semi-colon in the meantime) required a totally different outcome, writing in part,
“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted). Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here. 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.”
Professor, is constitutional law kind of a looking glass that permits democratically passed laws to be swatted down or upheld, depending on whether the majority of justices on the Supreme Court are “woke” liberals or dedicated conservatives? And is constitutional law then partly just a function of the arbitrary happenstance of when justices die and the political leanings of the President then in power?
Assignment: Using Chapters 1 and 2 of Feinman’s book, Chapter 1 of Milovanovic’s book and the two U.S. Supreme Court cases referenced above (the cases’ full texts are available on Canvas), write a 3 to 4 page double spaced response/ answer to the following question: “What explanation(s) most persuasively account(s) for the United States Supreme Court reversing itself on the constitutionality of democratically passed laws involving consensual homosexual sex in the relatively short span of seventeen years?” [Please avoid Google (or other internet search) based explanations, authorities and/or sources].