Last edited: February 06, 2005

Staring Down Stare Decisis

Family Research Council, March 26, 2003

By Richard Lessner

Pro-marriage conservatives were filled with fear and foreboding last fall when the U.S. Supreme Court agreed to review Lawrence v. Texas. Something was afoot and it wasn’t good. 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.

Despite the suspicious circumstances of the case—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—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 now?

It appears inescapable that a majority of the court is looking for an opportunity to review Bowers and perhaps overturn it. Why else grant review in a nearly identical case? While the two 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, while Georgia’s statute proscribing sodomy is gender neutral. Yet the majority in Bowers 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.”

Pro-marriage conservatives see this potentially as yet another step toward legal recognition of homosexual marriage. If the court were to overturn the Texas sodomy law, yet another barrier to legalizing same-sex marriage will have fallen. Although the Texas law was rarely enforced—and then almost exclusively in cases involving public lewd acts—the symbolism is important. Homosexual activists and advocates of gay marriage are eager to remove legal proscriptions against sodomy, even if such proscriptions are un-enforced. If the law is a teacher, then the homosexual lobby wants to silence its pro forma disapproval of same-sex sex.

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—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.

Sixteen years ago the court held anti-sodomy laws to be constitutional, but times change. A majority may now want to make the law conform to changing social mores. As American society has become more tolerant of homosexuals in general and public displays of homosexuality, 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 interpretation 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 the toss out the principle of stare decisis in Lawrence v. Texas, then why not in Roe? But this gets complicated.

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.

The decision in Dickeson pits anti-sodomy laws against stare decisis. 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?

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. Rehnquist was ready, after all, 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? Because, 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; pre-natal surgery that has turned the unborn baby into a patient; and neonatal care that keeps premature babies alive who, at the time of Roe, would never have survived outside the womb.

Militating against a future majority overruling Roe is Rehnquist’s troubling ruminations about Miranda having become “a part of our national culture.” Could the court find that Roe was wrongly decided, based on a faulty scientific premise, that medical advances in the intervening 30 years have overtaken the majority’s strained legal reasoning—and yet uphold the precedent because abortion has become “a part of our national culture? This is possible. In the 1992 case Planned Parenthood v. Casey, the court said as much. 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. Was not segregation part of our national fabric? Wasn’t prayer in public schools woven into the national tapestry? Seems this is a most arbitrary tautology.

If the court overrules 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. 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.


Richard Lessner is Executive Director of American Renewal, a lobbying organization associated with Family Research Council. He holds a doctorate from Baylor University.

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