The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas by David A. J. Richards

From the Publisher

For America's gay community, the question of rights is often reduced to the issue of privacy. Until very recently, even though this right has been upheld by the Supreme Court in landmark cases relating to contraception and abortion, the issue of "nonprocreational sex" continued to trigger a double standard for gay men. Now David Richards, a leading legal scholar who is himself gay, shows how two other landmark cases nearly twenty years apart shed light on America's evolving views of privacy.

The Supreme Court's decision in Bowers v. Hardwick (1986) stemmed from a 1982 gay-sex arrest in an Atlanta home under a Georgia law that criminalized sodomy—a case not originally prosecuted, but then pursued in court to challenge the statute's constitutionality. Lawrence v. Texas (2003) followed a similar arrest in 1998 in Houston, where Texas law also criminalized sodomy—but only when practiced by members of the same sex.

Richards views these cases as the nadir and apogee of the gay community's efforts to fight discrimination through the courts. In Bowers, the Supreme Court ruled that there was no constitutional protection for sodomy and that states could outlaw those practices. But in Lawrence, the Court overturned the Texas law—and the Bowers decision as well—because it denied due process protection to consenting adults whose sexual practices were conducted in private. Justice Kennedy's majority opinion reaffirmed a constitutionally protected right to privacy that prevented the government from regulating intimate behavior.

Tracing the Court's deliberations, Richards shows how Lawrence unambiguously establishes that the rightto a private life is an innately human right and that our constitutional right to privacy rests on the moral bedrock of equal protection. He shifts gracefully from the law to literature, and from the Courts to the wider culture, to offer a brilliant analysis of the relevant arguments, going beneath their surface to link them to the emotional and moral foundations of the controversies raging around these decisions.

Both of these cases show a Supreme Court ready to take seriously the idea that homosexuals have human rights—and that these rights are the basis of judicially enforceable constitutional rights. In describing these challenges to public prejudice, Richards's book offers students and general readers new insight into the practice and theory of constitutional law.

This book is part of the Landmark Law Cases and American Society series.

Philip Y. Blue - Library Journal

Law professor Richards (NYU) is a respected author of academic/crossover books dealing with the law and social issues, such as gay rights and feminism. Here, he focuses on two key Supreme Court cases: the 1986 decision in Bowers v. Hardwick upholding Georgia's antisodomy laws and the 2003 decision in Lawrence v. Texas striking down Texas's antisodomy laws and overturning Bowers. He explains how Bowers arose during a period of ongoing debate over the right to privacy and examines both opinions in light of the court's affirmation in Roe v. Wade(1973) of the reproductive rights of women. He then shows that Lawrence must be understood in the context of later privacy-rights cases, notably Planned Parenthood v. Casey, which upheld Roe, and Romer v. Evans, which banned the prohibition of antidiscrimination laws against gays and lesbians. Pointing to slavery's abrogation of marriage and family rights and to state attempts to proscribe contraception, Richards delineates events that ultimately led the Supreme Court to take seriously gender as a classification arguably as important as race. Recommended for academic, public, and law libraries.

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