Staring Down Stare Decisis
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.
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
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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