concluding that sexual orientation discrimination is subject to heightened scrutiny, despite case law to contrary, because those cases “rely so heavily on Bowers ”
How later courts described this case
- concluding that sexual orientation discrimination is subject to heightened scrutiny, despite case law to contrary, because those cases “rely so heavily on Bowers ”
- Explaining with regard to the First Amendment privacy, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.”
- stating that “there should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental”
- referring to the Supreme Court’s power to recognize error in its analysis of a case, “I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of non-conformity could ever do.”
Written by the judges who cited it.
Later courts went against this
Overruled by Lawrence v. Texas, 539 U.S. 558 (2003)
Listed in the Constitution Annotated's table of Supreme Court decisions overruled by subsequent decision (entry 225, expressly overruled).
Overruled — as noted by 2 later courts
Both Defendant Abercrombie and the court in Golinski contend that because Lawrence overruled Bowers, the Ninth Circuit’s decision is no longer good law.
2 citing opinionsCriticized by Compassion in Dying v. Washington, 79 F.3d 790 (1996)
The Bowers decision has been widely criticized by commentators.
Distinguished
Distinguished by Sterling v. Borough of Minersville, 232 F.3d 190 (2000)
We part company with our sister court’s ruling because the court, without discussion, applied Bowers as controlling on the issue of forced disclosure of sexual orientation despite the fact that Bowers focused on whether a state could constitutionally prohibit certain consensual homosexual conduct.
Distinguished by Jantz v. Muci, 976 F.2d 623 (1992)
Plaintiff argues that Hardwick is inapposite because it dealt with a substantive due process analysis whereas his claim is based on the equal protection clause.
The opinion
Chief Justice Burger,
concurring.
I join the Court’s opinion, but I write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.
As the Court notes, ante, at 192, the proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality *197 and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
This is essentially not a question of personal “preferences” but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.