Bowers vs Hardwick and Lawrence vs Texas were considered to be the landmark cases involving the ruling of the U.S. Supreme Court regarding the application of sodomy law in the United States among homosexuals. The court reverses its decision in Bowers, upholding the rights of homosexuals to perform consensual act of sodomy in the State in the Lawrence case. This is a clear abandonment of the Supreme Court on the doctrine of stare decis which according to the Legal Information Institute (2010) means “stand by the things decided.” According to the Georgia Code, sodomy is a sexual act punishable where a person performs to a sexual act involving the sex organ of one person and the mouth or anus of another (Onecle, 2006). It can be noted however that the law is silent with regards to the application of the sodomy law to consensual act of sodomy which results in different societal and philosophical arguments arising out from these cases. In the case of Bowers, the court upheld the proscription of sodomy between two consenting homosexual which led to the conviction of respondent Hardwick (US Supreme Court Center, n.d.). The respondent raised the constitutional issue of the sodomy law as against the right of homosexuals who, with their consent, perform a sodomy act in the privacy of their home which is a right protected by the due process clause of the Constitution. The court however did not agree contending that the due process clause does not extend that far to protect consensual sodomy performed at home and the court is not at the position to extend the due process clause to create new fundamental rights. The Supreme Court made further assertion that the law on sodomy has many ancient roots where the state extends its power of intervention regarding the homosexual conduct. It further refuses to recognize the right of liberty and privacy of the homes to shield the practice of consensual sodomy and other criminal acts for that matter as it is tantamount to allowing private individuals to be at the liberty of engaging incentuous act, adultery and other immoral acts that the law aims to prevent from being committed. The issue of moral choices is an important consideration in the Bowers case where the court does not give room for the law on moral choices to be invalidated. The case on Lawrence reverses the ruling of the Supreme Court, abandoning its old ruling that consensual sodomy is a punishable act under the law on sodomy. By abandoning the long time honored doctrine of stare decisis when promulgating judgement on cases, the Supreme Court in Lawrence case argued that to deprive two free, consenting adults to engage in a certain sexual act will be equally demeaning as depriving a married couple to have the right to a sexual intercourse. In its final resolution of the case, the Supreme Court held that the due process clause extends to protect the privacy and liberty of homosexuals to engage in a sexual act that is both mutually agreed and by choice of the parties while retaining their dignity. To upheld the previous ruling in the Bowers case will mean an infringement to the constitutional guarantee to persons to enjoy the right to enter into a relationship in their private lives and to perform sexual activities in the privacy of their homes. If the court indeed will continue to uphold the stare decisis principle in this case, it will seek to give the law the power to control the choice of every person to enter into a personal relationship of their choice and will infringe upon the rights of individuals to exercise personal choice without the danger of being punished by the law. Viewing the previous prosecutions for sodomy, the punished acts involved non-consenting individuals, relations between men and minor girls and boys and adult individuals who were subjected to force, duress and intimidation. Because of these arguments by the Supreme Court, the latest ruling in Lawrence thus struck down the old ruling in Bowers. Notable is the stand of the Supreme Court to protect liberty of private individuals at all times despite the growing voices on morality issues pressuring the court to condemn homosexual acts. While approaching the modern Western civilization, the European Court of Human Rights and other nations recognize and affirm the protected rights of homosexual who are consenting adults engaged in an intimate sexual conduct (US Supreme Court Center, n.d.). Furthermore, only a few states currently single out same sex relation for criminal prosecution owing to a more liberal recognition of rights and liberty of adult individuals to engage in consensual sexual acts. Chief Justice Burger concurred with the ruling in Bowers in recognition to the ancient roots on the Judeo-Christian moral and ethical standards where sodomy is a capital crime under the Roman Law. Justice Powell likewise concurred stating that there is no vested substantive right to consenting homosexuals to perform the prohibited act of sodomy. Four Justices gave their dissenting opinion upholding in Bowers the right of every individual to be let alone. The law on sodomy, when applied against consenting adult inviduals is violating their right to decide for themselves to perform a private sexual activity. Justice Stevens even dissented in the court ruling in Bowers stating that individual decisions on intimate relationships are among the liberty the due process clause in the constitution aims to protect. The decisions of the judges in the Bowers case may have been influenced by the immorality issues and the traditional view against homosexuals. The legal views observed by the Justices in Bowers are greatly influenced by the condemnation of homosexual acts that are mostly shaped by the religious beliefs and acceptable behavior on the societal structure at that time. It can be noted that the other Justices that concurred with the decision in Bowers pointed out the ancient roots of sodomy law which was held to be against the moral and ethical standards of religions. However, as we approach in a modern Western civilization, the Supreme Court is taking a different view which is more liberal when deciding in the case of Lawrence. Beltran and Ratti (2012) point out that the doctrine of stare decisis is not absolute. The Supreme Court can overrule its previous decisions upon the conclusion that the prior precedent is unworkable or no longer applicable in the current setting of the judicial system.
References
Beltran, J.F. and Ratti, J.B. (2012). The Logic of Legal Requirements: Essays on Defeasibility. Oxford: The Oxford University Press.
Legal Information Institute (2010). Stare Decisis. Cornell University Law School. Retrieved from http://www.law.cornell.edu/wex/stare_decisis.
Onecle (2006). Georgia Code - Crimes and Offenses - Title 16, Section 16-6-2. Retrieved from http://law.onecle.com/georgia/16/16-6-2.html
US Supreme Court Center (n.d). Bowers v. Hardwick - 478 U.S. 186 (1986). Retrieved from http://supreme.justia.com/cases/federal/us/478/186/case.html
US Supreme Court Center (n.d.). Lawrence v. Texas - 539 U.S. 558 (2003). Retrieved from http://supreme.justia.com/cases/federal/us/539/558/case.html
