law_morality2006 - LAW AND MORALITY 1. From Bowers to...

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LAW AND MORALITY 1. From Bowers to Lawrence Michael Hardwick was arrested in 1982, handcuffed in his bedroom by the Atlanta police, and charged with the crime of sodomy for engaging in oral sex with another adult in his bedroom: a Georgia statute designated sodomy a felony, carrying a penalty of not less than one and not more than 20 years in prison. Hardwick challenged the constitutionality of the law, and, ultimately, the Supreme Court rejected his challenge. In June 2003, the Supreme Court overturned Bowers in the case of Lawrence v. Texas . In this case, John Lawrence and Tyron Garner were observed having anal sex, arrested and charged for violating a Texas statute making it a crime to “engage in deviate sexual intercourse with another individual of the same sex,” eventually entered a plea of “no contest,” and were fined roughly $350 each. The Court overturned the Texas statute and made a very strong statement against the constitutionality of laws that impose criminal sanctions for violating the community’s sexual morality. Agreeing with Bentham’s condemnation of the legal enforcement of community morality, the majority opinion says: “Our obligation is to define the liberty of all, not to mandate our own moral code.” 2. What is the constitutional privacy right? The constitutional basis of Bowers and Lawrence lay in the notion of a constitutionally-guaranteed privacy right.
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Justice , Spring 2006—2 The American constitution does not mention a right of privacy. But in a series of cases beginning in 1965, the Supreme Court held that a privacy right is implicit in the Constitution. The Due Process clauses of the Fifth and Fourteenth Amendments state that neither the federal government nor the states can deprive persons of life, liberty, or property without due process of law, and the Court held that the protection of privacy is an element of that constitutional protection of liberty. The Court relied on that right in upholding the right to use contraceptives by married and unmarried couples 1 and—most famously—the right to have an abortion. 2 In arriving at this conclusion, the Court argues that one of the constitution’s animating values—a value that is reflected in and provides a rationale for several provisions—is that individuals are entitled to make certain basic, personal decisions independent of political regulation. So the Court in effect says that the basis for a privacy right lies in the value of independent personal decision-making . And while the precise content of the value and associated right are uncertain—a point I will return to later on—certain matters clearly fall within its scope, including decisions relating to marriage, procreation, family relationships, and child rearing and education. 3
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This note was uploaded on 02/27/2012 for the course POLS 101 taught by Professor Nemnich during the Fall '09 term at Boise State.

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law_morality2006 - LAW AND MORALITY 1. From Bowers to...

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