The Supreme Court’s decision to overrule Bowers v. Hardwick in the case of Lawrence v. Texas was based more on its assessment of the changing state laws on the topic of sodomy than it was on public and international criticism. Between the 1986 decision in Bowers and the 2003 decision in Lawrence, the number of states with laws proscribing sodomy was reduced from 25 to 13, and a majority of those 13 states did not enforce their laws in situations where consenting adults were acting in private – regardless of whether the participants were heterosexual or homosexual (Schmalleger, Hall, & Dolatowski, 2010). Yet the criticism did at least play a role in the Court deciding to invalidate Texas’ sodomy laws on the grounds that it violated due process rather than equal protection (Lawrence v. Texas, 2003). Critics of Bowers submitted numerous amicus briefs showing that the historical grounds relied upon in Bowers were much more complicated than the majority opinion there indicated, while others presented the case that the 14th Amendment naturally affords citizens the right to engage in this kind of conduct in the privacy of their own home without state interference (Eskridge, 2004).
Although Justice Thomas dissented in this case, it was not because he agreed with the appropriateness of Texas’ sodomy law whatsoever; he referred to it as “uncommonly silly” (Lawrence v. Texas). Instead, the rationale behind his dissent was that he felt the disposition of this law should be left up to the Texas state legislature, because he does not believe that the Constitution affords any “general right of privacy” (Lawrence v. Texas). I agree with Justice Thomas’ point of view here, because even though Texas’ law is ridiculous and should be banished, it is improper to do so by stretching the meaning of liberty under the Constitution to include “transcendent dimensions.” Quite simply, this would create way too slippery of a slope for “liberty” issues to be raised in future cases.
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- Eskridge, W. N. (2004, Winter). Yale Law School and the overruling of Bowers v. Hardwick. Yale Law School. Retrieved from http://www.law.yale.edu
- Lawrence v. Texas, 539 U.S. 558 (2003).
- Schmalleger, F., Hall, D. E., & Dolatowski, J. J. (2010). Criminal law today (4th ed.). E-book: Prentice Hall.
