In Rare Decision, Supreme Court Expressly Overruled an Earlier Case in Lawrence V. Texas

Lawrence v. Texas (2003) expressly overruled Bowers v. Hardwick (1986) and is one of those rare cases to expressly overturn an earlier decision.

In Bowers, the Court ruled that the Constitution does not include a Right of Privacy that protects consensual homosexual activity. The majority in Bowers framed the issue this way: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy..." At issue was a Georgia statute that criminalized sodomy. Bowers was arrested during consensual homosexual sodomy at his home, and as with most cases, the Supreme Court's characterization of the issue essentially determined the decision. The Court did not believe that the Constitution confers a Right of Privacy that protects homosexual sodomy, so it refused to strike down the Georgia statute.

Bowers was heavily criticized. According to judicial conservatives, it grew out of a judicial philosophy against judicial activism, that courts should be reluctant to declare statutes unconstitutional. This notion, however, ignores the astute observation that all courts are activist - they are just activist in different directions philosophically.

Bowers became one of the rare decisions to be overruled. Instead of explicitly overruling an earlier decision, courts usually decide the latter case on different grounds or distinguish it from the earlier decision by relying on facts particular to the latter case. Lawrence expressly overruled Bowers and is one of those rare cases where the Court explicitly overturned an earlier case.

Justice Anthony Kennedy wrote the decision in Lawrence. The facts in that case are similar to the facts in Bowers. Police entered Lawrence's home and found him engaged in sex with someone of the same gender. Lawrence was convicted of violating a state statute that prohibited homosexual activity. On appeal to the Supreme Court, the Court held that the "Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause." Kennedy further wrote that the "liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." The Texas statute was struck down and Bowers was overruled.

Many in judicial circles ignore the writings of founders like Ben Franklin because Franklin was not a lawyer and because modern case law is more often applied. To do so, however, is to neglect his golden wisdom, such as "Mind your business." Lawrence v. Texas is consistent with Franklin's wisdom.