The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right
Bowers v. Hardwick found that prohibitions on sodomy had “ancient roots.” Justice Powell observed that when the 14th Amendment was ratified “all but 5 of the 37 States in the Union had criminal sodomy laws.” He concluded that “[a]gainst this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
Two decades later, Justice Kennedy cast doubt on this position in Lawrence v. Texas.
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16—17; Brief for American Civil Liberties Union et al. as Amici Curiae 15—21; Brief for Professors of History et al. as Amici Curiae 3—10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
The Cato brief, which was written by William Eskridge, found errors with Bowers’s historical account. The brief explained that states prohibited sodomy “as applied to male-female as well as male-male.” Given this history, the brief argues, the “sodomy laws were aimed at public conduct and sexual activities that were not consensual.” In other words, the laws were not targeted at disapproving of homosexual relationships. Therefore, the brief concluded, “[b]ecause of this incomplete reading of history and its inconsistency with Evans and this Court’s privacy precedents, Hardwick‘s interpretation of the Due Process Clause should be overruled.
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