Is Stare Decisis a Tautology?

When the U.S. Supreme Court agreed to review Lawrence v. Texas, pro-family conservatives were filled with foreboding. Something was afoot and it wasn't good. The court heard oral arguments in the case on March 26^th.

Lawrence involves the appeal of two Texas convictions for consensual homosexual sodomy. Like three other states, Texas makes it a crime for two people of the same sex to engage in "deviate sexual intercourse," that is, sodomy. In the Texas case, police investigating a false complaint of a weapons disturbance stumbled upon the homosexual defendants in flagrante delicto. The men were arrested, charged, and fined after pleading no contest.

The suspicious circumstances of the case involving the unlikely arrests make it appear the whole thing was staged precisely as a test case, as was previously true of Griswold v. Connecticut and Roe v. Wade. Nevertheless, the Supreme Court granted review. Why? Hadn't the court settled the issue in the 1986 Bowers v. Hardwick? In that case, the court upheld Georgia's anti-sodomy law. So why revisit the issue?

It appears inescapable that a majority of the court was looking for an opportunity to reconsider Bowers and perhaps overturn it. Why else grant review in a nearly identical case? While the laws in question in Georgia and Texas differ somewhat, the differences are of little import. The Texas law specifically applies to people of the same sex; Georgia's statute proscribing sodomy is gender neutral. Yet in Bowers the majority made it clear that, de facto, the Georgia statute was enforced almost exclusively against homosexuals. The majority said:"We express no opinion on the constitutionality of the Georgia statute as applied to other [non-homosexual] acts of sodomy." So the court appears to have addressed the issue raised in Lawrence.

If the court were to overturn the Texas sodomy law, then another barrier to legalizing so-called same-sex marriage will have fallen. Pro-marriage conservatives see this potentially as a significant step toward the legal recognition of such homosexual liaisons. Although the Texas law was rarely enforced -- and usually only in cases involving public lewd acts -- the symbolism is important. Homosexual activists and advocates of gay marriage desire the removal of legal proscriptions against sodomy, even if such laws are rarely enforced. The law is a teacher and the homosexual lobby wants to silence its longstanding instruction regarding sodomy.

Opponents of the anti-sodomy statute argue that this an area of private morality into which the law dare not intrude. Social conservatives argue that private sexual conduct rarely remains private, and that even personal morality can have large public consequences. How we order our families, raise our children, care for one another, arrange relations between the sexes - all ostensibly purely private concerns - have enormous implications for the public good. If we privatize all sexual morality and put it beyond the reach of the law, moreover, then legal proscriptions against incest, polygamy, plural marriage, so-called "group marriage" and all other purely "private" sexual arrangements must inevitably fall. Indeed, marriage ceases to be a public institution, a matter of contract law, it will become just another private expression and not the basis of all civil society.

Sixteen years ago the court held anti-sodomy laws to be constitutional, but times change. A majority on the court may now want to make the law conform to evolving social mores. As American society has become more tolerant of homosexuals in general and public displays of homosexuality, it is said, so should the law follow the shifting public attitudes. In this view, constitutional law becomes the pale reflection of the latest Gallup Poll. It's law as interpreted by MTV and HBO. But this is the rubbery constitutional principle favored by Laurence Tribe, Cass Sunstein, Chuck Schumer, et. al.

Still, there is some potentially good news here for pro-family conservatives. If the court is willing to review and perhaps overturn Bowers, then perhaps it would be prepared to do the same with Roe v. Wade. If the court is willing to toss out the principle of stare decisis in Lawrence then why not in Roe? But this gets complicated. Consider: In Dickerson v. United States, a majority of the court upheld the 1966 ruling in Miranda v. Arizona against self-incrimination. That decision resulted in those familiar warnings cops recite when they arrest someone: "You have the right to remain silent. You have the right to an attorney . . ." What does Miranda have to do with Roe and anti-sodomy laws? Stare decisis, or respect for precedent.

In Dickerson, Chief Justice Rehnquist addressed the issue of stare decisis. Rehnquist, writing for the majority, held that the original Miranda decision was a constitutional ruling. That being the case, "the principles of stare decisis weigh heavily against overruling it now." Rehnquist admitted that "no constitutional rule is immutable." But while stare decisis is not an inexorable demand, Rehnquist said that in constitutional cases the court requires "special justification" for departing from precedent.

What is the "special justification" that would provoke a majority into overturning precedent in Bowers? If evolving public attitudes toward sexual behavior is sufficient, then the Texas law will be struck down and the defense of marriage ultimately may be a lost cause. Can polygamy, polyandry, consensual incest, and group marriage be far behind same-sex marriage?

The decision in Lawrence pits anti-sodomy laws against stare decisis. In Dickerson, however, Rehnquist seemed to equivocate, as Justice Scalia noted in a typically scathing dissent. Rehnquist allowed that respect for stare decisis was not sufficient grounds alone on which to uphold Miranda. After all, Rehnquist was ready to admit that the scales of justice had tipped too far in favor of the accused and against the police. As Scalia noted, the Constitution only protects against coerced self-incrimination and does not prevent those under arrest from foolishly confessing voluntarily.

Even so, Rehnquist was unwilling to overturn Miranda despite his reservations andstated willingness to depart from stare decisis even in constitutional rulings. Why? The chief justice said, "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."

So presuming that the majority will strike down the Bowers precedent in Lawrence v. Texas, and find anti-sodomy laws to be unconstitutional, the case could cut two ways with regard to Roe. It could signal the court is willing to turn its back on stare decisis and make new law based on "special justifications." With respect to Roe, those justifications could be changing public attitudes against abortion-on-demand; medical advances that have rendered Roe's contrived trimester scheme the scientific equivalent of the flat-earth theory; revolutionary in utero imaging that shows the unborn baby to be indisputably, well, a baby; prenatal surgery that has turned the unborn baby into a patient; and neonatal care that keeps premature babies alive who, at the time of Roe, never would have survived outside the womb.

Leaning against a future majority overruling Roe is Rehnquist's troubling ruminations about Miranda having become "a part of our national culture." It is entirely possible the court could find that Roe was wrongly decided, based on a faulty scientific premise, and that medical advances in the intervening 30 years have overtaken the majority's strained legal reasoning. Yet on the basis of Rehnquist's reasoning the court could uphold the Roe because abortion has become "a part of our national culture." This is precisely what the court said in the 1992 Planned Parenthood v. Casey. It upheld Roe because abortion had become part of the national fabric. Here we have a judicial tautology: The court first creates a right, and then sustains it because it exists. This reasoning is troubling. Was not racial segregation part of our "national fabric?" Wasn't prayer in public schools woven into the national tapestry? Anti-sodomy laws have been around since the colonial period. If abortion is said to have become part of the national fabric in the span of three decades, then what are we to make of sodomy laws that are three centuries old? Seems this is a most arbitrary tautology, indeed.

Were the court to reverse Bowers in the Texas sodomy law case, then it could be good news for the pro-life cause. But even if the court does show in Lawrence its willingness to jettison stare decisis on the basis of "special justifications," it still might cling to Roe on the dubious basis Chief Justice Rehnquist cited in Dickerson. Such is the thicket the court has blundered into in an effort to make the law conform to the whims, fads and fashions of public opinion.

The Case For and Against Natural Law That federal judges, Mr. Bork included, have not been learned in the natural law is one of the educational misfortunes of our age. When the time is out of joint, we can repair to the teachings of Cicero and Aquinas and Hooker about the law of nature, in the hope that we may diminish man's inhumanity unto man. The natural law lacking, we may become so many Cains, and every man's hand may be raised against every other man's.

Bowers v. Hardwick, 478 US 186 (1986) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 190-191 .

BURGER, C.J., Concurring Opinion 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 Judeo-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 [p*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.

Thomas Jefferson on Sodomy Sect. XIV. Whosoever shall be guilty of rape, polygamy, or sodomy* with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least. Peterson, Merrill D. "Crimes and Punishments" Thomas Jefferson: Writings Public Papers (Literary Classics of the United States, Inc. 1984) pp. 355, 356.

Hundreds rally for '10 Commandments judge' The effort is in response to the Alabama high court's unanimous decision to reject a lesbian mother's child custody petition. Moore wrote a separate concurring opinion, repudiating homosexuality on religious grounds, calling it "abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God."

MURDER : Constitutional Persons:An Exchange on Abortion Scalia is quite right that the Constitution has nothing to say about abortion

How Not To Overturn Roe v. Wade The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken.

SODOMY : Forever and Ever, Amend (Sodomite Unions)

1. In the United States, the civil rights which we all enjoy are rooted in the laws of nature and of nature's God, in the unalienable rights to life, liberty, property and the pursuit of happiness. [I have been in contact with all 187 legislators on this matter, at least five to eight times. I've heard back from 48 of them, and none of them will dispute the statement I just gave to you.]

2. The only source for unalienable rights in all human history is the Creator, the God of the Bible. [I've had a couple of people try to dispute me on this. And some years ago one was Nadine Strossen, who is president of the ACLU. And I said that the only source is the God of the Bible, and she started off that evening, and the topic was homosexuality and civil rights that evening. And she quoted the language from Jefferson, that we hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness. And as she quoted that, I said you started at the same source that I started: unalienable rights. And so I just have one simple question. Who is the Creator that Thomas Jefferson was referring to? And Jefferson was a rationalist. He was not by any stretch an evangelical Christian as myself, and yet he and those with him who were from an orthodox Christian background in a Protestant context, appealed to a source higher than King George III. They appealed to the Creator. So I asked Nadine Strossen, who is the Creator? She looked at me and said well, you have your Creator and other people have their Creators. I said no, you've just described polytheism. In other words, that's not the context to which Jefferson was referring to. And if you look at every polytheistic culture in all of human history, they have no concept of unalienable rights. Rights go to those who are in power, whereas the concept of unalienable rights upon which this nation is founded, are rooted in the biblical understanding of the Creator, that says that all people deserve the same rights because they are people, and not because of any other secondary reason.]

3. The God of the Bible defines true marriage as one man, one woman, one lifetime. [This is the order of creation, the image of God.] The health of society is rooted in this foundation.

4. In human history, no society has ever affirmed both homosexuality and unalienable rights. [So here is an intellectual challenge, to track out history, to find out where unalienable rights are affirmed. And if you can find any society that ever has affirmed homosexuality and unalienable rights together, you won't find it.]

[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion....Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. (Source: John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Little, Brown, and Co. 1854), Vol. IX, p. 229, October 11, 1798.)

Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime & pure, [and] which denounces against the wicked eternal misery, and [which] insured to the good eternal happiness, are undermining the solid foundation of morals, the best security for the duration of free governments. (Source: Bernard C. Steiner, The Life and Correspondence of James McHenry (Cleveland: The Burrows Brothers, 1907), p. 475. In a letter from Charles Carroll to James McHenry of November 4, 1800.)

[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters. Source: Benjamin Franklin, The Writings of Benjamin Franklin, Jared Sparks, editor (Boston: Tappan, Whittemore and Mason, 1840), Vol. X, p. 297, April 17, 1787.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?

And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric? (Source: George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge), pp. 22-23. In his Farewell Address to the United States in 1796.)

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