Question 1
In 1982, Michael Hardwick was charged with taking alcohol in public. However, he did not answer the charges, and hence the ticketing officer had to go to his house where the officer found him and another man committing sodomy (Bradley, 1990). This act was against the laws of Georgia even though the law had not been implemented for decades. This was an opportunity to authoritatively settle the political morality of America and hence a chance to re-organize constitutional law. The power that was invoked in Hardwick court was to dictate how every bedroom in Georgia would behave, which is a very embarrassing interference in intimate matters, is not a rational decision, and neither does it prove morality.
According to Hart, the relationship between morality and law can be explained using utilitarian and retributivist theories. For instance, according to the utilitarian approach, particular law is said to be moral if it has beneficial consequences not only to the party committing the act but also to other parties involved. Besides, a specific law is ethical if the harm it aims to avoid outweighs the damage that it inflicts on the offenders. However, the retributivist theory uses the quality of the actions of offenders to justify law; for instance, the offender usually intentionally violates the rights of the other. In contrast to utilitarian theory, it does not do this through analysis of the consequences of such punishment (Stewart, 1999). Therefore, Bowers' decision was immoral in relation to utilitarian theory since the adult parties engaged in sodomy consented to the act, and it was a sexual act that made both parties happy. Moreover, the decision of the court that was anti-sodomy violated the rights to liberty of the parties involved following the retributivist theory.
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Question 2
The ruling in Lawrence v. Texas was a significant gain for the civil rights of the lesbian and gay group of people (Hurewitz, 2004). During the ruling, the supreme court argued that it was unconstitutional to have state laws prohibiting sodomy. Besides, the supreme court explained that the fourteenth constitutional amendment gave everyone the right to liberty, and hence the interest of the government in the sexual life of people infringed on this right. This argument was a result of the rulings in Griswold v. Connecticut and Roe v. Wade, which led to the legalization of birth control and abortion with an argument that their ban infringed on a person's right to liberty. As a result, the ruling of Bowers v. Hardwick in 1986 was overturned. During the latter court hearing, the court in Georgia created a law that prohibited sodomy even among consenting adults.
The decision in Bowers’ was because there had been laws in history and especially during the western civilization that was against homosexuality. However, the majority in Lawrence’s noted that since the ruling of Bowers v. Hardwick, there had been many changes regarding sodomy laws that reflected a new trend. The ruling in Lawrence, however, caused significant controversies (Hurewitz, 2004). For instance, those who opposed the ruling argued that the decision of the court was manipulated to push for gay rights. Besides, these opponents argued that the ruling denied the state the power to determine its moral laws. Hence, they did not agree with the overturning of the precedents of Bowers v. Hardwick. Moreover, the ruling was a historic one since it affirmed the rights of homosexuals to engage in sexual intercourse at home. Therefore, the supreme court declared that all laws against sodomy were against the constitution of that state.
Question 3
In a case between planned parenthood v. Casey, Justice Scalia was very angry at the court for being willing to uphold the rights of abortion while the court could not show the same respect for his views on the case in Lawrence’s. Besides, Justice Scalia warns that as a result of the ruling in Lawrence, there are impeding dangers of same-sex marriage. He also attempted to establish a parade of horrible arguments against the decisions in Lawrence’s. In Justice Scalia's dissent, he accused the court of playing loose and fast with the respect that the court's precedents are to enjoy by failing to rely upon stare decisis. Besides, it is ridiculous that he asked if Lawrence was even with the principles of stare decisis (Eskridge Jr., 2004). While it is essential to follow historical laws, laws that discriminate against a state's citizens could no better than pull back the nation's progress and respect. The Texas decision was a historical one, and it gained even more respect for the supreme court. This is because the court gave equal rights for the citizens of America regarding sexual life, contrary to the accusations made by Justice Scalia that the decision in Lawrence may result in an end of all laws based on morality. Justice Scalia and other dissenters claimed that Lawrence's decision was unlawful and undemocratic since it was contrary to both precedents and history.
Moreover, they argued that based on the grounds of equal protection of homosexuals, the court could have struck down the Texas law on sodomy rather than overturning and overruling Hardwick. Also, it is interesting that Justice Scalia thinks that laws opposing same-sex marriages can only be sustained if in the constitutional law, morality can be a rational basis, and if Bowers remains good law. Moreover, Scalia suggests that this law would not even pass the rational review stage (Eskridge Jr., 2004). As a result, the dissents of Justice Scalia have no viable basis since traditional morality in itself is not a rational basis. Besides, the court did not rule sodomy as a right of citizens but only respected the liberty of an adult to indulge in sexual intercourse in the privacy of their homes.
Question 4
People experience laws in their everyday lives, and many at times, they are validated by social influences. For instance, there have been debates regarding abortion, legalization of marijuana, and same-sex marriage. The mores, norms, and folkways of a society validate laws since they distinguish wrong, right or wrong, and what is acceptable or unacceptable in that particular society. The central values in the U.S are individual freedom, justice, the sanctity of human life, and equality. Besides, there is a high priority placed on patriotism and family and respect for the religious beliefs of various people (Perry, 2006). An example of more norms on sexual violation of children is met by strong condemnation. Mores change with time; for instance, in America, there was a strong more against recognizing slaves as citizens since African Americans were viewed as property and did not have any rights. However, this evolved, and now there are strong mores against slavery in America. Moreover, norms provide the basis for positive laws, which may also change over time. Therefore, this shift in social influence can result in a better and more moral society depending on how strong the punishment for violation is.
In conclusion, Bowers' decision was against the right to liberty of homosexual individuals even though it followed the traditional norms of Georgia. Besides, Lawrence's decision was due to the evolution of the norms that had existed on sodomization. Therefore, the basis of the dissents of Justice Scalia was not strong enough to object to the sodomy law.
References
Bradley, G. V. (1990). Remaking the Constitution: A Critical Reexamination of the Bowers v. Hardwick Dissent. Wake Forest L. Rev. , 25 , 501. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/wflr25§ion=27 .
Eskridge Jr, W. N. (2003). Lawrence's Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity Politics. Minn. L. Rev. , 88 , 1021 . https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/mnlr88§ion=39 .
Hurewitz, D. (2004). Sexuality scholarship as a foundation for change: Lawrence v. Texas and the impact of the historians' brief. Health and Human Rights , 7 (2), 205-216. https://www.jstor.org/stable/4065355.
Perry, S. (2006). Hart on social rules and the foundations of law: liberating the internal point of view. Fordham L. Rev. , 75 , 1171. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/flr75§ion=49 .
Stewart, H. (1999). Legality and Morality in HLA Hart's Theory of Criminal Law. SMUL, Rev. , 52 , 201. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/smulr52§ion=24 .
