Staring Down Stare Decisis
Bowers and Roe.


Pro-marriage conservatives became very nervous 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 — the unlikely arrests make it appear the whole thing was staged precisely as a test case, as had previously happened in 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? The court upheld Georgia’s anti-sodomy law then. So why revisit the issue now?

It would seem 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 anti-sodomy statute 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 as a potential step toward the 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 lewd acts committed in public — the symbolism is important. Homosexual activists and advocates of gay marriage are eager to remove legal proscriptions against sodomy, even if such proscriptions are seldom enforced. The idea is to silence the law’s 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 serious public consequences. How we order our families, raise our children, care for one another — ostensibly purely private concerns — all have enormous implications for the public good. Moreover, were we to privatize all sexual morality and put it beyond the reach of the law, then legal proscriptions against incest, polygamy, so-called “group marriage,” and all other “private” sexual arrangements must inevitably fall.

Sixteen years ago, the court held anti-sodomy laws to be constitutional — but times change, and a majority may now want to make the law conform to changing social mores. As American society has become more tolerant of both homosexuals in general and public displays of homosexuality, so should the law follow the shifting public attitudes. According to this view, constitutional law amounts to a pale reflection of the latest Gallup poll. It’s law as interpreted by MTV and HBO. 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 it gets complicated.

In Dickerson v. United States, a majority of the court upheld the 1966 ruling (Miranda v. Arizona) against self-incrimination. That decision resulted in those familiar warnings cops recite when they make an arrest: “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.

Chief Justice Rehnquist addressed the issue of stare decisis in Dickerson. Writing for the majority, Rehnquist 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 thoughstare decisis is not an inexorable demand, Rehnquist explained that in constitutional cases, the court requires “special justification” for departing from precedent.

The decision in Dickerson in effect 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 may ultimately be a lost cause.

In Dickerson, however, Rehnquist seemed to equivocate, as Justice Scalia noted in a typically scathing dissent. Rehnquist allowed that respect for stare decisis alone was not sufficient grounds on which to uphold Miranda. Rehnquist was, after all, 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.

Still, Rehnquist was unwilling to overturn Miranda despite his reservations and stated 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 still 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 include the 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, 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, and that medical advances in the intervening 30 years have overtaken the majority’s strained legal reasoning in that case — and yet uphold the precedent because abortion has become “a part of our national culture? This is possible. The Court said as much in the 1992 case Planned Parenthood v. Casey. The majority upheld Roe then 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?

If the court overrules Bowers in the Texas sodomy-law case, that 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 well 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 the Family Research Council. He holds a doctorate from Baylor University.