Re: Bowers Overruled

[Parry, John]

Title: Message

I've just skimmed the opinions, and they generated several questions.   First, after several years of the court being unable to figure out an approach to substantive due process (see, e.g., the "grandparents rights" case), I wonder how many list members see Lawrence as establishing a new, more flexible consensus?  The majority seems to reject the requirement imposed by White in Bowers and reiterated by Rehnquist in Glucksberg that the claimed right be defined as narrowly as possible.  On the issue of history and tradition, the majority insists that history is complex and thus refuses to read it clearly in support of the statute, which seems a different allocation of the burden of proof.  The majority also indicates that the last 50 or so years of history may be the most important ones in substantive due process analysis, because that period shows greater awareness of sexual privacy and liberty.  Also noteworthy is the absence (I think) of Glucksberg from Kennedy's opinion, replaced by Griswold and Casey.  Finally, note the use of comparative analysis (last seen, as I recall, in the ruling last term about executing the incompetent).   At the same time, as Scalia notes, the court doesn't do the expected "this is a fundamental right, so let's do strict scrutiny" dance.  So, has the court, in fact, perpetuated confusion about substantive due process methodology rather than create a new consensus?   Finally, what exactly is the holding of Lawrence beyond the overruling of Bowers?  Is it that there is not even a rational basis for the law, or is there an idea of a fundamental right to consenting-adult sexual autonomy and privacy?     John T. Parry Assistant Professor of Law University of Pittsburgh School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 412-648-7006   -----Original Message----- From: Conkle, Daniel O. [mailto:[EMAIL PROTECTED] Sent: Thursday, June 26, 2003 10:54 AM To: [EMAIL PROTECTED] Subject: Bowers Overruled   With Kennedy writing for 5 justices (and O'Connor concurring in the judgment), the S. Ct. invalidated the Texas sodomy statute--and by implication all other sodomy statutes.  The Court relies on substantive due process and explicitly overrules Bowers.  Kennedy cites and relies upon Casey and Romer, as well as Stevens' dissent in Bowers.  He suggest that the history of sodomy regulation should not be understood as it was in Bowers, but he then appears to adopt more of an evolving values approach.   Dan Conkle ************************************** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana  47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] **************************************