LEGAL RESEARCH

STARE DECISES

Enjoins adherence by lower courts to doctrinal rules established by the supreme court in its
decisions. It was based on the principle that once a question of law has been examined and decided,
it should be deemed settle and closed to futher argument.

It encourage the private settlement of disputes becouse it discourages individuals from forum
and judge shopping.promotes effeciency becouse it disposes of the need to litigate every issue and
discourages a rush of litigation whenever there is a change in court personnel.

Promotes the evenhanded, predictable, and consistent development of legal principles, fosters
reliance on judial decesions,and contributes to the actual and perceived integrity of the judial process

It is not an inexorable command but a principle of policy and not a mechanical formula of
adherence to the latest decision.

SUPREME COURT

Abandoning stare decises must be based on strong and compelling reasons: otherwise, the
predictability which is expected from its decision would be immeasurably affected, and the public’s
confidence in the stability of the solemn pronouncement diminished. Stare decises can the courts be
justified in the setting aside the same.

The court maybe guided but it is not controlled by precedent.” thus , the court, especially with a
new membership, is not obliged to follow blindly a particular decision that it determines, after
re-examination.

Illustrative example

CASE

Bowers v. Hardwick, legal case, decided on June 30, 1986, in which the U.S. Supreme Court upheld (5–4) a Georgia state
law banning sodomy. The ruling was overturned by the court 17 years later in Lawrence v. Texas (2003), which struck down a Texas
state law that had criminalized homosexual sex between consenting adults.

The case arose on August 3, 1982, when a police officer who had been admitted to the home of Michael Hardwick in Atlanta witnessed
him and a male companion in a bedroom engaging in sex. The officer had been executing a warrant for Hardwick’s arrest for failing to
appear in court on a charge of public drinking (it was later determined that the warrant was invalid because Hardwick had already paid
the $50 fine). The officer promptly arrested both men for violating Georgia’s antisodomy statute.

Although the district attorney decided not to prosecute Hardwick or his companion, Hardwick filed suit in federal district court against
the Atlanta police commissioner and Georgia’s attorney general, Michael J. Bowers, alleging that the antisodomy law placed Hardwick,
a noncelibate homosexual, in imminent danger of arrest and that it violated his constitutional right to privacy. Hardwick also argued
that the law and his arrest had had a chilling effect on the relationship of a pseudonymous heterosexual married couple (the law
applied to heterosexual as well as homosexual sodomy), John and Mary Doe, and that it violated the couple’s right to privacy in their
marital relations, which the Supreme Court had recognized in Griswold v. State of Connecticut (1965). The district court dismissed
the suit, in part on the basis of the Supreme Court’s summary (without comment) affirmance (1976) of Doe v. Commonwealth’s
Attorney for the City of Richmond (1975), in which a district court in Virginia had upheld a state law prohibiting sodomy. The Court of
Appeals for the 11th Circuit reversed the Georgia district court’s decision, holding that the antisodomy statute violated Hardwick’s right
to privacy under the Ninth Amendment (which protects fundamental rights not enumerated in the first eight amendments) and under
the due process clause of the Fourteenth Amendment (which prohibits the states from depriving “any person of life, liberty, or
property, without due process of law”). It further held that the Supreme Court’s affirmance of Doe was not controlling, because it had
been undermined by later decisions of the court. It remanded the case for retrial, instructing the district court to apply strict scrutiny
(the most demanding form of judicial review), which would have required Bowers to demonstrate that the antisodomy law served a
compelling state interest and that it was the most narrowly tailored means of achieving that end. Rather than go through a second trial,
however, Bowers filed a petition for certiorari with the Supreme Court, which was granted on November 4, 1985, in view of conflicting

decisions in similar cases by other appellate courts. Oral arguments were held on March 31, 1986 .

Hardwick was charge with violating the georgia statute criminalizing sodomy by commiting that
act with another adult male in the bedroom of his home.after a preliminary hearing ,the district
attorny decided not to present the matter to the grand jury unless further evidence developed.

Hardwick brougt suit in the federal district court, challenging the constitutionality of the state insofar
as it criminalized consensual sodomy.

CASE

LAWRENCE ET AL. v. TEXAS

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

No. 02-102. Argued March 26, 2003-Decided June 26, 2003

Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and
saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and
convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain
intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the
Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U. S. 186, controlling on that point.

Held: 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. pp. 564-579.

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their
liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding.
The Bowers Court's initial substantive statement-"The issue presented is whether the Federal Constitution confers a fundamental right
upon homosexuals to engage in sodomy ... ," 478 U. S., at 190-discloses the Court's failure to appreciate the extent of the liberty at
stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put
forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although
the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have
more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places,
the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the
liberty of persons to choose without being punished as criminals. 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. Pp. 564-567.

[559]

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient
roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual
conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit
nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem
not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts
against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force,
between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual
sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an
established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., American
laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out
samesex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority
opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are
overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn
homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past half century are most relevant
here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their
private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 567-573.

(c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the
conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States,
including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with
respect to consenting adults acting in private. Casey, supra, at 851-which confirmed that the Due Process Clause protects personal
decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education-and Romer v. Evans, 517
U. S. 620, 624-which struck down class-based legislation directed at homosexuals-cast Bow-

[560]

ers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a
minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of
convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations
have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has
been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the
extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European
Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual
adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in
circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v.
Tennessee, 501 U.S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it
once there are compelling reasons to do so. Casey, supra, at 855—856. Bowers causes uncertainty, for the precedents before and
after it contradict its central holding. Pp. 573—577.

(d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS concluded that (1) the
fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to
produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls
here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors,
persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve
two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty
under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at
847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life.
Pp. 577-579.

ISSUE

1. Whether petitioners’ criminal convictions under the texas “homosexual conduct” law -which
criminalized sexual intimacy by same sex couples, but not identical behavior by different-sex
couples-violate the fourteeth amendment guarantee of equal protection of laws,

2. Whether petitioners criminal convictions for adult consensual sexual intimacy in tyhe homo
violate their vital interest in liberty and privacy protected by the due process claouse of the
fourtheenth amendment,

3. Whether bowers v. hardwick, should be overruled,

Over the course of the last decades , states with same sex prohibitions have moved toward abolishing
them. In the case of lawrence, noted bowers assertion that anti-sodomy laws reflected values shared
with a wider civilization, but reasoning and holding in bowers have been rejected elsewhwre, said the
court. The court was emphatic about it is not correct today. It ought not to remain binding
precedent. Bowers v. Hardwick should be and is now overulled.