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Free «Social Issues in Law» Essay Sample

The Bowers v. Hardwick, 478 U.S. 186 (1986) is a Supreme Court ruling that criminalized oral and anal sex, even if it is consensual, between two people of the same sex. In 1982 in Atlanta, Georgia, Officer Torick found Hardwick at his home having consensual oral sex with another adult male. Officer Torick arrested Hardwick and his male companion and both men were charged with sodomy. In Georgia law, sodomy is the act of engaging in oral and anal sex. In the Federal District Court, Hardwick was charged for violating the anti-sodomy law in Georgia but was never prosecuted. Hardwick then sued Bower in the Federal District Court for violating his rights under the Due Process Clause of the Fourteenth Amendment. In the Court, Hardwick also challenged the constitutionality of the anti-sodomy law. The primary issue in the case was whether the criminalization of sodomy is aligned with the due process clause of the Fourteenth Amendment, specifically an individual’s right to privacy. The Court ruling, however, dismissed the connection of the right to privacy to the case because even if consensual oral or anal sex was conducted privately, the act is still sodomy, and is a violation of the Georgia statute. The Court compared sodomy to the illegal possession of drugs, such that even if drugs and drug paraphernalia is are used and kept in the privacy of an individual’s home, it does not mean that no criminal acts were committed.



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In the case, the American Civil Liberties Union (ACLU) was involved when the organization asked Hardwick’s permission for representation. The case received widespread attention and has been cited by various gay rights movements in America including the Lesbian Rights Project (San Francisco, California), GLAD (New York), Texas Human Rights Campaign, and National Gay Rights (Los Angeles, California). During that time, gay rights activist movements utilized the Bowers v. Hardwick case to emphasize the threat of laws that challenge homosexual intimacy and relationships. After the Court ruled in favor of Bowers, gay rights activists began demonstrations. The Court ruling also increased the motivation of activist groups to widen their influence by targeting the Senate and Supreme Court. Organizations like the Human Rights Campaign Fund appealed to Senate and Supreme Court nominees. Gay rights activists saw an opportunity not only to campaign for just court rulings but to change the system from within in order to “deconstitutionalize” anti-sodomy laws and strengthen the enactment of civil rights (Coy, 2011).

Aside from the Bowers v. Hardwick case, the Lawrence v. Texas is a court resolution that also received widespread attention from the media and gay rights activists. The case filed against Lawrence and Garner. Lawrence and Garner committed devious sexual acts and thus, were apprehended and convicted. Albeit consensual, same sex sexual intercourse that includes certain deviate acts like contact between an individual’s genitals and another person’s mouth or anus or penetration of genitals or objects to an individual’s anus. The Houston police caught Lawrence and Garner committing such acts, which were in violation to the anti-sodomy statute in Texas. The common laws in the United States state that the rights of individuals when committing sexual acts only exist when two individuals are bounded by a marriage contract. Therefore, the anti-sodomy law that was enacted during that time criminalized deviant sexual intercourse between individuals of the same sex. However, if people from opposite sexes commit the similar deviant sexual acts, those actions will not be considered as violations to the sodomy laws. Thus, court proceedings focused on whether considering same sex intercourse is a crime when the Due Process Clause protects the rights of citizens to privacy and property and whether the court ruling for Bowers v. Hardwick should be remanded. The court decision was in favor of Lawrence. In 2003, the Supreme Court ruled that anti-sodomy laws are unconstitutional. The case concluded with a state decision that the acts committed by petitioners Lawrence and Garner are not violations under the Due Process Clause of the Fourteenth Amendment, which dictates that “no state or shall make or enforce any law which shall… deprive any person of life, liberty , or property, without due process of law” (Emanuel & Emanuel, 2008, p. 143). Consequently, Bowers v. Hardwick was also overruled.

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Justice Thomas and Scalia’s dissent criticized the court ruling but majority of opinion was in agreement with the Lawrence v. Texas ruling and remand of Bowers v. Hardwick. Justice Kennedy cited the Dudgeon v. United Kingdom case, which paved way to repeals of anti-sodomy laws in the U.K. The primary argument in the case was that anti-sodomy laws were wrong in claiming that homosexuality is immoral and condemned by Western civilization. Kennedy also emphasized the consenting adults, whether heterosexual or homosexual, have the right to consummate their relationship in whichever way. However, if the individuals involved are minors, the court ruling would and should turn out differently. Although Justice O’Connor agreed with the court ruling but not with Kennedy. O’Connor’s rationale was for the equal protection of citizens, the acknowledgment of rights of people equally regardless of sexual orientation. Thomas and Scalia presented less rational arguments since Scalia’s argument is that homosexual sodomy is not a right that could be claimed. The issue however is whether homosexual sodomy is unconstitutional, not whether it is a right. Thomas, on the other hand, stated that he would choose to repeal the law but in support of the Constitution, he argued that laws do not protect the privacy of individuals in such situations.

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Social change has also influenced the court decision for Lawrence v. Texas and remand Bowers v. Hardwick. During the time of the trial, much has changed about the view of homosexuality in society. During the Bowers v. Hardwick, people followed traditional practices and conventional ideas. Social norms then are not the same as social norms now. Before, homosexuality and intercourse between them were considered immoral. Although there are some populations who still believe in the same ideas, many people nowadays are more open, aware, and comfortable about homosexuality and intimacy and relationship issues among them. The same logic applies to the people involved in the case. The involvement of gay rights advocates from various parts of the country made a significant impact on court rulings. Social pressure played an important role in the court ruling for Lawrence v. Texas. The outcomes of such cases rely on how well judges understand the human situation and how attuned they are to contemporary social norms. The active involvement of gay rights advocates allows judges and legislators to know and understand the pleas, situations, and experiences of homosexuals. In a situation where people are highly involved, and not only homosexuals but heterosexuals who support the causes of gay rights movements, judges are called to be more sensitive to situations, especially those that are influenced by societal changes.

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The court ruling for Lawrence v. Texas also paved the way for various discussions about its impact on other laws involving prostitution, pornography, etc. (Bagley & Savage, 2009). While considering the cases where Lawrence v. Texas will be stated, arguments could be associated with the philosophical underpinning of libertarianism. Bower v. Hardwick and Lawrence vs. Texas may have focused on standing by clauses in the Fourteenth Amendment that protected privacy, but generally, the majority ruling that supported those claim is grounded on the libertarian philosophy. The rights of individuals as adults who are granted the freedom and personal liberty support the claims of the prosecution of anti-sodomy laws being unconstitutional (Swanson,


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