Due Process and Sexual Conduct

Question 1

1. Bowers v. Hardwick (1986)(p.521) (Explicitly overruled by Lawrence v. Texas)

Answer 1

a) Facts: GA statute criminalizing sodomy.
b) Held: it would be a stretch to apply non-reproductive issues and procreation and we don’t extend to the issues in this case.
Court will not treat sexual orientation as deserving of heightened scrutiny, therefore turn to due process.
(1) The form of conduct that GA prohibits is not a form of conduct that people have a right to engage in.
(a) This is a form of conduct that GA finds immoral, that many other states have traditionally found immoral, and morality is an appropriate reason for legislation if all we are applying is rational basis.

a) Dissent: What the court has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.
i) Sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of the human personality.”

Question 2

2. Lawrence v. Texas (2003)(p.531) (explicitly overrules Bowers)

Answer 2

a) Facts: TX statute criminalizing homosexual sodomy. Two men charged.
b) Rule: Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. Texas furthers no legit state interest to justly intrusion into the personal and private life of the individual (it is unreasonable - not a matter of compelling interest) i) Kennedy relies some on laws of other jurisdictions (drives Scalia crazy). Doesn’t touch the doctrine of desuetude:
(1) the legal idea that certain statutes by virtue of large scale non-use and non-enforcement become technically non-enforceable. People rely on their non-existence. In those circumstances courts will treat the law as non-existence. It is an equitable doctrine.

Question 3

Paris Adult Theater v. Slaton (1973)(p.741)

Answer 3

a) Reaffirms long standing view that obscene publications (determined by an extensive test) do not count as speech for first amendment purposes
b) Rule: morality, although contested, is sufficient to clear the rational basis test.
h) Once the court gets past the notion that regulation of obscene publications are not free speech it becomes a sex issue and the court says nothing in the Constitution protects private sexual relations.
i) Once something is deemed “obscene,” use rational basis testIt is rational to regulate on morality, unprovable assumptions, and paternalism