Earlier that day, the Senate had confirmed yet another circuit court judge nominated by Donald Trump , bringing his grand total to 38, neatly doubling the 19 judges at that level that Barack Obama saw confirmed by the same stage of his presidency. But Pence had an even juicier number to boast of: the week before, thanks to a flurry of activity in the Senate engineered by the majority leader, Mitch McConnell, the number of confirmed Trump appointees to federal judgeships had hit triple digits.
Pence was drowned in applause before he could finish the sentence. He meant judges eager to see through fundamental changes in American life, from the criminalization of abortion to the gutting of LGBTQ rights and environmental protections, the reversal of healthcare reform, the sidelining of workers and the endorsement of religious discrimination.
The process of nominating and confirming federal judges can seem banal. For each time a particularly controversial nominee draws protesters to the Capitol and sets off a national debate, as supreme court justice Brett Kavanaugh did, dozens of lesser nominees pass through unremarked. But even for lower-level nominees, the stakes are high. While the supreme court typically rules in fewer than cases each year, appellate courts decide about 50,, making them the last stop for justice in almost every case.
The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. Whether petitioners' criminal convictions under the Texas Homosexual Conduct law which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples violate the Fourteenth Amendment guarantee of equal protection of laws?
Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.
For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, and Meyer v. Nebraska, but the most pertinent beginning point is our decision in Griswold v.
State Laws Held Unconstitutional
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v.
Baird, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v.
As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other states were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause.
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The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.
The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex.
Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions.
Four Justices dissented. The Court began its substantive discussion in Bowers as follows: ''The issue presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many states that still make such conduct illegal and have done so for a very long time. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.
The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. 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. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: ''Proscriptions against that conduct have ancient roots.
We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of The English prohibition was understood to include relations between men and women as well as relations between men and men.
The historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral.
The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.
These considerations do not answer the question before us, however.
The Supreme Court ruling
The issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law. Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: ''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. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This emerging recognition should have been apparent when Bowers was decided.
In the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for criminal penalties for consensual sexual relations conducted in private. It justified its decision on three grounds: 1 The prohibitions undermined respect for the law by penalizing conduct many people engaged in; 2 the statutes regulated private conduct not harmful to others; and 3 the laws were arbitrarily enforced and thus invited the danger of blackmail.
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In Illinois changed its laws to conform to the Model Penal Code. Other states soon followed. In Bowers the Court referred to the fact that before all 50 states had outlawed sodomy, and that at the time of the Court's decision 24 states and the District of Columbia had sodomy laws. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction.
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A committee advising the British Parliament recommended in repeal of laws punishing homosexual conduct. Parliament enacted the substance of those recommendations 10 years later. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 states with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.
In those states where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in that as of that date it had not prosecuted anyone under those circumstances. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa.