Blind Imitation: The Revolting Persistence of Bowers v. Hardwick

43 Pages Posted: 1 Oct 2016

Date Written: June 30, 2016

Abstract

In Bowers v. Hardwick, the U.S. Supreme Court upheld the criminal prohibition of sodomy. In dissent to that landmark decision, Justice Harry Blackmun, quoting Justice Oliver Wendell Holmes, denounced as “revolting” any rule of law that “simply persists from blind imitation of the past.”

Bowers was explicitly overruled in 2003 by Lawrence v. Texas. But by that time, most federal Circuit Courts had applied the reasoning of Bowers to reject any suggestion that sexual orientation might be a suspect classification under the Fourteenth Amendment. As it turns out, the overrule of Bowers by Lawrence did little to disrupt the blind imitation of bad precedent by the lower courts, which still persists today.

This article illustrates how federal appellate courts have applied the reasoning of Bowers to foreclose any consideration whether sexual orientation can constitute a suspect class, and have applied rational basis scrutiny to state actions targeting gays and lesbians. This article shows how Bowers’ reasoning has been upheld repeatedly, long after the case was overruled, despite an attempted insurrection by district court judges in the wake of United States v. Windsor. Finally, the article describes how Obergefell v. Hodges has failed to disrupt Bowers-based precedent and what courts still must do, thirty years later, to put to rest a revolting decision that was “wrong when it was decided.”

Keywords: Fourteenth Amendment, Bowers v. Hardwick, Supreme Court, Sixth Circuit Court of Appeals, Civil Rights, Suspect Classification, Due Process, LGBTQ, Gay and Lesbian Rights, Equal Protection

JEL Classification: K1, K19

Suggested Citation

Dunman, L. Joe, Blind Imitation: The Revolting Persistence of Bowers v. Hardwick (June 30, 2016). Thomas M. Cooley Law Review, Vol. 33, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2845905

L. Joe Dunman (Contact Author)

Morehead State University ( email )

Morehead, KY 40351
United States

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