Bad laws in our nation ruled by law: Bowers v. Hardwick (sodomy)

Today’s Paul Krugman column–Republicans Party Like It’s 1984 – The New York Times–while primarily concerned with the House’s so-called health insurance act, begins:

There have been many bad laws in U.S. history. Some bills were poorly conceived; some were cruel and unjust; some were sold on false pretenses. Some were all of the above.

An excellent general intro to this continuing series of rotten Supreme Court decisions, for which the entire credit and order goes to Casey C. Sullivan, Esq., who compiled the list of 13 on Find.Law.com.

While this one is indeed lousy and nasty and discriminatory, I don’t know that I’d put it sixth in this list. Still…and do take a good look at the date of this decision. Be shocked.

6. Bowers v. Hardwick (1986): This decision upheld a discriminatory Georgia sodomy statute that criminalized sexually active gay and lesbian relationships. As Justice Harry Blackmun noted in his dissent, the majority opinion displayed “an almost obsessive focus on homosexual activity.” Bowers was overruled in 2003 by Lawrence v. Texas, though unconstitutional anti-sodomy laws still exist in several states.

To demonstrate how sick this decision was, I copied from Wikipedia the summary and quotes from the majority decision, and the minority decisions by Blackmun. I did a bit of bolding:

The majority opinion, written by Justice Byron White, reasoned that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”.[1] A concurring opinion by Chief Justice Warren E. Burger cited the “ancient roots” of prohibitions against homosexual sex, quoting William Blackstone’s description of homosexual sex as an “infamous crime against nature”, worse than rape, and “a crime not fit to be named”. Burger concluded: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.[2] Justice Lewis F. Powell later said he regretted joining the majority, but thought the case of little importance at the time.

The senior dissent, authored by Justice Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun’s dissent accused the Court of an “almost obsessive focus on homosexual activity” and an “overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases”. In response to invocations of religious taboos against homosexuality, Blackmun wrote: “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”[3]

Now that quote from Blackmun rings out loudly today, when we have “religious groups condemn[ing]…behavior” and States using religious objections as a “license to impose their [religious groups’] judgments on the entire citizenry.”

Hobby Lobby and the Little Sisters of the Poor come immediately to mind.

The current Supreme Court should have been focusing on Blackmun’s simple declaration of individuals’ right to privacy, instead of the deceitful, prejudicial and determinedly unconstitutional, “Religious Freedom Restoration Act.” You know, like religions don’t currently have the freedom to, what? Worship? Speak out? Picket Planned Parenthood clinics?

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One Response to Bad laws in our nation ruled by law: Bowers v. Hardwick (sodomy)

  1. Deb Fein says:

    Very true. The Supreme Court should stay out of bedrooms and religion, except for protection to worship, should not be part of Supreme Court decisions.

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