Re: Bowers Overruled

[Marty Lederman]

Title: Message

Justice Scalia struggles mightily to say that it's a rational basis, rather than a "fundamental rights," decision, relying on the fact that the majority conspicuously failed to embrace Scalia's preferred, Glucksburg-like test for fundamental rights strict scrutiny.  Thus, for Scalia, the holding must be, instead, that morality can never be even a "rational" basis for any law.   But this plainly is not what's going on in the Kennedy opinion.  Yes, he eschews Glucksburg-like language; and yes, there's a throw-away reference to the failure of the state to further even a "legitimate" state interest.  But the overwhelming thrust of the opinion is a strong reaffirmation and extension of Griswold/Eisenstadt/Carey/Roe to establish what is, in effect, a heightened scrutiny test for regulation of sex within the home.  For instance:  "It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt _expression_ in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.  The liberty protected by the Constitution allows homosexual persons the right to make this choice."  "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.' (citing Casey)."  (It's only after these broad declarations that Kennedy adds the sentence about the lack of any legitimate state interest.)   "Morality" is no longer a sufficient response to a liberty interest of that magnitude.  What remains to be seen is whether, as O'Connor suggests, "national security or preserving the traditional institution of marriage" would be a sufficient basis for imposing penalties (or denying benefits) on the basis of such a fundamental liberty -- or whether, as Scalia himself helpfully argues, the "principle and logic" of today's opinion "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."   Please allow me to add that it was a glorious morning to be in the Courtroom.  It is not every day that one sees tears of joy in the eyes of so many (ordinarily unflappable) members of the Supreme Court Bar.  It will be difficult, indeed, ever to forget the collective, palpable sense of wonder and elation that swept through the bar section as it became clear from Justice Kennedy's recitation that the Court was about to overrule Bowers directly.   Marty Lederman (a proud member of "the law profession's anti-anti-homosexual culture" (see Scalia, J., dissenting, at p.19)) ----- Original Message ----- From: Parry, John To: [EMAIL PROTECTED] Sent: Thursday, June 26, 2003 12:29 PM Subject: Re: Bowers Overruled 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] **************************************