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Regina v. Dudley and Stephens Rule of Law: The defense of necessity does not justify homicide unless the killing was committed in self-defense. Issue: Will the defense of necessity justify a homicide committed to save the defendants' own lives? Holding and Reasoning (Coleridge, C.J.): No. The intentional killing of another is murder unless there is some legal justification. Accordingly, Dudley and Stephens are sentenced to death. [Editor’s Note: Dudley and Stephens's death sentences were commuted to six months in prison.]

Bowers v. Hardwick (1986) – Overruled by Lawrence United States Supreme Court Parties: Michael J. Bowers: Petitioner and Attorney General of Georgia Michael Hardwick, and John and Mary Doe: Respondents Facts:    

A Georgia statute criminalized oral and anal sex Hardwick, and adult male and practicing homosexual was charge with violating the statute (had sex with another man in his bedroom). After preliminary hearing, District Attorney decided not to present the matter to the grand jury unless further evidence developed. Hardwick brought suit in a Federal District Court, challenging the constitutionality of the statute insofar that it criminalized consensual sodomy. As such, as a practicing homosexual, he was in risk of arrest.

Procedural History:  

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The District Court granted Bowers motion to dismiss for failure to state a claim. A divided panel of the Court of Appeals for the 11 th Circuit reversed and remanded it. Relying on Roe v. Wade the court went on to hold that GA stature violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of the state regulation by reason of the 9th Amendment and Due Process clause of the 14 th Amendment. Bowers petitioned for certiorari and was granted. Supreme Court reversed.

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Statute at issue: Ga.Code Ann. § 16-6-2 (1984), a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. Petitioner’s Argument: 

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The acts made criminal by the statute may have serious adverse consequences for the general public health and welfare, such as spreading communicable diseases or fostering criminal activities. Engaging in the conduct prohibited will interfere with Georgia’s right to maintain a decent society. For hundreds of years the act has been uniformly condemned as immoral. Judeo-Christian values proscribe the conduct involved.

Defendant’s Argument:  

His conduct should be protected because it occurs in the privacy of his own home. There must be a rational basis for the existence Georgia statute and there is none other than the presumed belief that homosexual sodomy is immoral and unacceptable

Issue: Can a state criminalize same sex sodomy without violation of the 14 th Amendment? Holding: Yes. Court’s Reasoning:  

Criminalizing sodomy is deeply rooted in legislative history. Also, illegal conduct is not always immunized whenever it occurs in the home. Morality is a legitimate state interest and if all laws representing moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

Rule of law: A state can criminalize same sex sodomy without violating the 14 th Amendment. Majority Opinion (Justice White): The Constitution does not provide the fundamental right to engage in homosexual sodomy. The right to privacy does not extend to homosexual sodomy. Sodomy was a criminal act under the common law, under the laws of the thirteen states ratifying the Bill of Rights, under the laws of all but five of the states at the time the 14 th Amendment was ratified, under the laws of all 50 states in 1961, and today under the laws of 24 states and the D.C. The Court’s previous holding that the First Amendment permits the reading of obscene material in the privacy of a person’s home was supported by the text of the First Amendment, whereas a right to homosexual sodomy is not similarly supported by the text of the Constitution. The limits on extending a right to privacy to homosexual acts within the home are not easily defined, since other criminal acts are not immunized simply because they occur within the home. It would likewise be difficult to limit the right to voluntary sexual acts between consenting adults, as this would leave open the question of adultery, incest, and other sexual crimes that might occur in the home. Finally, the law at issue passes rational basis scrutiny, because it is based on notions of morality. Because the Constitution does not provide a fundamental right to engage in homosexual sodomy, the Court of Appeals’ decision is reversed.

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Concurrence (Chief Justice Burger): A millennia of moral teaching supports the fact that there is no fundamental right to homosexual sodomy. “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. Concurrence (Justice Powell): There is no fundamental right to homosexual sodomy. However, the Georgia statute’s authorization of a prison sentence for up to 20 years may violate the Eighth Amendment. Dissent (Justice Blackmun writes dissent in which Justices Brennan, Marshall, and Stevens joined): The majority obsessively focuses on homosexual activity despite the fact that the Georgia law applies broadly to all people. This case is not about a fundamental right to engage in homosexual sodomy, but is instead about the comprehensive and highly valued right to be let alone. This case must be analyzed in the context of the values supporting the constitutional right to privacy. Every person has a fundamental interest in choosing and controlling the form and nature of his or her intimate relationships with others. Georgia has not provided sufficient justification for its infringement of this fundamental interest. The assertion that the acts criminalized under the statute negatively affect the general public health and welfare is not supported in the record. Nor is it sufficient to state that such conduct has been considered immoral under traditional Judeo-Christian values for hundreds or thousands of years. In Loving v. Virginia, 388 U.S. 1 (1967), this Court rejected Virginia’s argument that its anti-miscegenation law was justified by religious values or the fact that most states had enacted similar laws at the time the Fourteenth Amendment was ratified, finding instead that the law deprived individuals of the freedom of choice to marry, a similarly vital personal right. Dissent (Justice Stevens writes dissent in which Justices Brennan and Marshall joined): The Georgia statute applies broadly to all persons. However, prior cases have established that a state may not infringe on individual liberties by prohibiting sodomy between married or unmarried heterosexual adults. Because the statute therefore cannot be enforced as written, either the individuals to which the statute is selectively applied must not have the same level of interest in this individual liberty as others, or selective application of the law must be supported by a neutral and legitimate state interest. Homosexuals have the same interest as heterosexuals in choosing their voluntary, private associations with others, and no neutral and legitimate state interest has been offered in support of selective application to homosexuals. Although the majority assumes selective application is justified by the Georgia electorate’s belief that homosexual sodomy is unacceptable, this is not supported by the record. The broadly applicable law simply reflects a belief that all sodomy is unacceptable, and the record reflects a long history of nonenforcement of the statute.

Lawrence v. Texas (2003) United States Supreme Court Parties: John G. Lawrence and Tyron Garner: Petitioner Texas: Respondents Facts:  

Responding to a reported weapons disturbance in a private residence, Houston police entered Lawrence’s apartment. Officers saw him and another man, Garner, engaging in a private, consensual sexual act. 3

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Lawrence and Garner 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.

Procedural history:   

Petitioners were convicted by a Justice of the Peace in the Court. Petitioners exercised the right to a new trail. The court of appeals affirmed conviction relying on Bowers. Supreme Court granted certiorari.

Statute at issue: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” Defendant’s argument:  

The statute satisfies the rational basis review because it furthers the legitimate government interest of promotion of morality. The statute doesn’t discriminate against homosexuals. It discriminates against homosexual conduct.

Issue: Can a state criminalize sodomy between individuals of the same sex? Holding: No. Rule of law: A state cannot criminalize same sex sodomy. *A state cannot use morality as a legitimate interest in criminalizing same sex sodomy* Majority Opinion (Justice Kennedy): Yes. In Bowers v. Hardwick, 478 U.S. 186 (1986), the Court upheld a Georgia statute prohibiting private, consensual sodomy between both homosexual and heterosexual couples. However, the Texas statute at issue in this case prohibits certain sexual conduct only between homosexual couples. The Court in Bowers mistakenly framed the issue as whether the Constitution supports a fundamental right of homosexuals to engage in sodomy. This inquiry was insensitive to the true extent of the liberty interests at stake involving the right of homosexuals not only to perform sexual acts but to engage in intimate personal relationships. Ruling that states may constitutionally prohibit sexual contact between homosexuals is in effect the same as ruling that homosexual relationships are themselves unlawful. That determination would impinge upon the liberty of homosexuals to engage in intimate personal and familial relationships. Additionally, there is no longstanding history in America of laws directed at prohibiting homosexual conduct as a distinct matter. This is partly due to the difficulty of enforcing legal punishments of consenting adults engaging in private sexual behavior. Thus, the Bowers Court’s reliance on historical traditions prohibiting homosexual activity was largely overstated and likely was based on the moral and religious preferences of the individual justices. Other nations have done away with statutes criminalizing homosexual sodomy. Finally, most states that have laws prohibiting sexual contact between homosexuals largely do not prosecute individuals for engaging in this type of conduct. This reflects increasing legal and social acceptance of the right to privacy in consensual conduct between adults. The Court’s recent decisions in cases such as Planned Parenthood v. Casey, 505 U.S. 833 (1992), and Romer v. Evans, 517 U.S. 160 (1996), further evidence this trend. The liberty protected by substantive due process encompasses the right of consenting adults to engage in private sexual conduct, including sexual acts between people of the same sex. The principle announced in Bowers prohibiting private sexual conduct between consenting 4

adults of the same sex is unconstitutional and explicitly overturned. The decision of the court of appeals is reversed. Concurring Opinion (Justice O’Connor): The majority rightly invalidates the Texas statute, but wrongly bases its reasoning on the Due Process Clause of the Fourteenth Amendment. The law unfairly criminalizes certain sexual conduct among homosexual couples only. The state’s only interest is a moral disapproval of a particular group of people. Accordingly, the Texas law should be voided exclusively under the Equal Protection Clause. Bowers should not be overturned. Dissent (Justice Scalia): Many lower courts have relied on Bowers in making decisions about other liberty interests. The majority should accord the same respect to principles of stare decisis in its consideration of Bowers as it did to a reconsideration of Roe v. Wade, 410 U.S. 113 (1973), in Planned Parenthood v. Casey. The majority in that case reasoned that no changing circumstances existed that justified overturning the central holding of Roe. Similarly, no changing societal circumstances or legal developments exist that justify the majority’s decision to overturn Bowers. The majority’s decision to do so is derived primarily from the widespread criticism of that decision. The Court should not consider public opinion or foreign laws in making its ruling. This decision will cause great confusion about rational-basis review and pave the way for finding a constitutional right to homosexual marriage. Dissent (Justice Thomas): The Texas statute is “uncommonly silly” and should be repealed. Nevertheless, nothing in the Constitution or Bill of Rights prohibits the Texas legislature from enacting the law at issue. ELEMENTS OF JUST PUNISHMENTS A) Principal of Legality Keeler v. Superior (1970) Supreme Court of California Parties: Keeler: Petitioner People of California: Respondents Facts:      

Petitioner received a divorce from his wife Petitioner saw his wife on a mountain road and saw that she was pregnant by another man. He kneed her in the abdomen and struck her. Fetal movements had already begun at the time of the incident The viable fetus was born stillborn (its head fractured. Keeler was charged with murder.

Procedural history:  

Keeler filed a motion for lack of probable cause. It was set aside He appealed to the CA Supreme Court seeking a writ of prohibition on the ground that his action did not constitute an offense under state law.

Defendant’s argument: 5

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Fetus born at 28 weeks or more has an excellent chance of survival (viable). Because of advances in medical care, the common law requirement of live birth is no longer in accord with changing times.

Issue: Is a fetus a human being within the meaning of the CA murder statute such that person can be charged of murder thereof? Holding: No Rule of Law: a person must know that, at the time he engages in the type of conduct that is prohibited, that his conduct was a criminal act (principal of legality). Court’s reasoning:   

Legislative intent did not intend to include fetus as a human being. They intended it to mean a person who had been born alive, and not did not intend murder to include feticide. To extend liability for murder of a fetus is to punish for an act that by legislation is not criminal. Assuming the court interpreted human being to include fetus, the court still cannot retroactively apply interpretation of the law to the conduct of petitioner. It violates due process because the Petitioner had no notice that the act which is made punishable is a crime (principle of legality).

Judge Burke’s dissent reasoning:  

The fetus reached 35th week of development and had a 96 percent chance of survival. Therefore, the baby was alive and viable at the time of the act. “Human being” must be fairly and reasonably interpreted to changing times according to legislative intent.

Judge Mosk: Penal Code § 187 provides that “murder is the unlawful killing of a human being, with malice aforethought.” If the fetus which Mr. Keeler is charged with killing is not deemed a “human being” under the statute, he cannot be charged with murder. Penal Code § 187 does not specify whether the term “human being” applies to an unborn fetus. If a statutory provision is ambiguous, courts must refrain from interposing their own interpretations and adhere to the legislative intent behind the provision. It is therefore necessary to examine the intent of the legislature that drafted this provision. As written, the provision has its origins in the Crimes and Punishments Act of 1850 and has not been amended since. Thus, this court relies on the intent of the Legislature of 1850. In the mid-nineteenth century, common law required proof that a baby was born alive in order to prosecute the killing of that baby as murder. It is therefore likely that the Legislature of 1850 implicitly intended to include the requirement that a baby be born alive in its murder statute. This, in addition to the state’s policy of interpreting ambiguous criminal statutes in favor of the defendant, leads to the conclusion that the legislature intended § 187 to apply only to a baby that is born alive. Here, although the fetus was viable, it was not born alive. Therefore, the fetus does not fall within the meaning of “human being” under § 187. It is true that much has changed since the enactment of this statute, including scientific advancements that increase the odds that a viable fetus can survive outside the womb. Consequently, the requirement of an actual birth may be viewed as archaic. Nevertheless, even if a legislature’s intent is outdated, courts are not at liberty to substitute a more modern interpretation of a statute for two reasons. First, the doctrine of separation of powers requires that courts leave the task of defining crimes to the legislative branch. Thus, even though some may consider the killing of a viable fetus to be as grave a crime as the killing of an infant, courts must still defer to the intent of the legislature. The second reason the court cannot reach beyond the apparent legislative intent is 6

the constitutional guarantee of due process. No person may be punished for a crime for which he did not receive fair warning. For this reason, legislatures may not pass ex post facto laws, that is, laws that criminalize behavior retroactively. Enlarging the definition of a “human being” to include an unborn fetus would have the same effect as an ex post facto law because the defendant would have had no notice that the killing of a fetus could amount to murder. Here, there is no decision from California courts that places Mr. Keeler on notice that his attack on the fetus could fall within the meaning of § 187. Accordingly, the court adheres to the original intent of the 1850 legislature in holding that § 187 does not apply to the killing of an unborn fetus. The petition for a writ of prohibition is granted, and the lower court is restrained from conducting any further proceedings on the information. Judge Burke dissenting: The majority’s holding defies logic and common sense. The legislature defined murder as the unlawful killing of a “human being.” Those terms are not frozen in place as of any particular time, but must be fairly and reasonably interpreted by the court. Whether a homicide occurred in this case should be determined by medical testimony regarding the viability and ability of the fetus to survive prior to Keeler’s act. The majority suggests that to do so would create a new offense. However, contrary to the majority’s suggestion, the legislature has not “defined the crime of murder in California to apply only to the unlawful and malicious killing of one who has been born alive.” Instead, the legislature used the term “human being,” and it is left to the courts to determine what constitutes a “human being.” Additionally, the majority states that any alternative holding would violate due process, but due process only precludes prosecution under a new statute insufficiently explicit regarding the specific conduct prohibited or under a preexisting statute “by means of an unforeseeable judicial enlargement thereof.”

B) Adequate notice City of Chicago v. Morales (1999) Supreme Court of the United States Parties: City of Chicago: Petitioner Morales: Respondent Facts:     

Chicago enacted a Gang Congregation Ordinance which prohibits criminal street gang members from loitering with one another or with other persons in any public place. Reasonable belief that at least one the loiterers belonged to a criminal gang. Refusal t...