What is the point of the carceral policies we see in these cases? Relate your answer to readings from last week.
Women and Law Summer 2019
Women and the Law, Summer 2019, Hunter College
What is the point of the carceral policies we see in these cases? Relate your answer to readings from last week.
Response to “THE SUPREME COURT; Excerpts From Supreme Court’s Decision Striking Down Sodomy Law”
This New York Times article breaks down certain pivotal Supreme Court cases that have served and currently serve as precedent on sodomy law and the criminal penalization for consensual sexual relations conducted in private by adults. There are many lessons to be learned.
Based on the readings from last week, class discussions, and on THE SUPREME COURT; Excerpts From Supreme Court’s Decision Striking Down Sodomy Law, one can conclude that the economic potential of the American child is one of America’s greatest assets. That’s why sex and money are main pillars of American jurisprudence. I argue that the U.S government has a special interest in the sexual practices of its citizens, which is linked to its economic relationship with its citizens, because it is in survival mode and wants to secure its economic future. Last class we discussed how simple, and mundane, legal practices like bonds, parole, etc disproportionately affect poor people. By squeezing out poor folks and making sure there’s a next generation in place to pay taxes, the wheel continues to spin.
Planned Parenthood of Southeastern Pa. v. Casey showed us that the concept of “liberty” is rooted in the right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Using contraceptives is a way for people to create their own destiny. The operating question here is: Who gets to control one’s destiny, the state or the individual? In Romer v Evans, the NYT article points out, struck down class-based legislation that actually helped gay people as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which placed gay people in a protected class (because of the significant marginalization they faced in their community). Even when the courts get a chance to make the right call, sensible laws are overturned.
Thankfully, Eisenstadt v. Baird overturned the legal practice of banning contraceptives for unmarried people. The court rightfully ruled that it “impaired the exercise of their personal rights…”. As the State fights for its future, it infringes on the personal rights of its citizens to make sovereign decisions as adults. That’s why Roe v Wade was so important. It recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirms the Due Process Clause as a fundamentally significant in defining the rights on a person.
Justice Scalia’s dissent of Lawrence v Texas is so cringeworthy and gives us an ugly snapshot of where his values are rooted in— apathy. Instead of agreeing with ruling that it isn’t a crime for two persons of the same sex to engage in intimate consensual sexual conduct. Scalia doesn’t necessarily disagree with the practice, he just says federal government shouldn’t have a place in discussing sodomy law, it should be left to the states. He says the Court is ”overreaching its bounds”. Here comes the apathy: Scalia says,”I would no more require a state to criminalize homosexual acts — or, for that matter, display any moral disapprobation of them — than I would forbid it to do so.” This kind of thinking is quite dangerous.
“States rights” has been used as an excuse for oppressive laws for far too long. Justice Stevens dissent in Bowers v Hardwick perfectly exemplifies my views on this matter. “The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This is supposed to be the land of the free. America needs to answer the wake up call.
Masterpiece Cakeshop in 2018 depicts the case of Jack Phillips, a baker who refused to bake a custom cake for a same-sex couple. He believed that baking the cake would violate his religious beliefs and therefore his rights protected by the First Amendment. He did not 3want to design custom cakes that conflict with his religious beliefs. A Colorado civil-rights agency ruled that he violated the state’s anti-discrimination laws. They said that if he wanted to bake wedding cakes for opposite-sex couples, he would have to do the same for same-sex couples. Phillips, unhappy with this ruling went to the U.S. supreme court which then ruled in his favor.
This case is complicated because though I believe that same-sex couples should not be discriminated in this way, I am conflicted since Phillips morally felt unable to provide this service because of his religious beliefs. I feel strongly about freedom of expression and the rights that the First Amendment grants, which makes it harder for me to come to a decision about what the right ruling should have been here. I do believe that he should have been able to put it aside but then again I am not tied down by religion and I do not think of same-sex marriage as a sin.
Bucklew v Precythe
As a result of being convicted for murdering Michael Sanders and horrifically raping his ex-girlfriend, Russell Bucklew was sentenced to death in Missouri by lethal injection of pentobarbital. However, Bucklew asserted that this type of execution was an example of cruel and unusual punishment (which was in violation of the Eighth Amendment) because he had a congenital medical condition that would cause him to hemorrhage when the lethal injection is given, causing him to choke on his own blood. To prevent this, Bucklew suggested to breathe pure nitrogen gas through a mask. He also wanted an investigation to see if two members of the lethal injection team were accurate because he stated that they might not be qualified for this. So, the question for this case is does the Eighth Amendment demand another alternative method of execution if an inmate has a unique medical condition that can be affected due to the state’s method of execution. The district court stated that Bucklew failed to show evidence that Missouri’s execution method would create this huge risk and also failed to show an alternative method that would reduce this risk. The district court also denied the investigation because they thought it was inappropriate to think that Missouri would hire unqualified people.
Literally, the first question that popped in my mind while I was reading this is what kind of evidence and how much evidence does the court need to state that an alternative method of execution is necessary. I feel like the court and other higher authorities definitely don’t want to research more on this or even discuss other ways because it’ll show that their original statements are wrong or misleading which would cause the public to believe that the court doesn’t have as much power or influence they think they do. I mean, the court’s decision was ridiculously close: 5-4 and the justices who rejected Bucklew’s requests were conservatives. The majority explained that the Eighth Amendment’s ban on cruel and unusual punishment did not guarantee an inmate with a painless death; the ban on cruel and unusual punishment is defined as the state not adding any unnecessary things to their executions. I mean, if this lethal injection is going to cause and *add* Bucklew this much pain, then isn’t this lethal injection a type of torture?
In case of Lawrence v. Texas of 2003, the Court ruled for making same-sex sexual activity legal in every US state and territory. I agree with the Court’s decision. The court ruled that the law violated the 14th Amendment’s Due Process Clause because that clause protects a substantive right to personal liberty in intimate decisions. The Court’s decision delivered by Justice Kennedy starts off very radical and confident. Not only the Court wants to challenge the previous Supreme Court decision of Bowers, but it attempts to interpret the Constitution differently on the matter that is very ambiguous in the society of the United States, intimacy of same-sex individuals.
The Court on the way to rule its decision is asking three major questions answering which will base the grounds for the decision’s reasoning. The first question the Court is asking is whether the sexual conduct by same-sex couples violates the 14th Amendment while the same activity of the different-sex couples does not; the second question is whether criminalizing the intimate activity by adults of same sex violates their liberty and privacy interests guaranteed by the 14th Amendment; and the last question that sounds like a conclusion of the decision is whether Bowers should be overruled. Answering the first two questions positively will build the base for overruling Bowers. The selection of questions is not random itself; I think. The Constitution’s words stay the same on the paper, but the Court’s interpretation of the same words is highly impacted by the societal moods, historic and economic context of the country. The same Constitution was interpreted totally different in Plessy and Brown, for example. What I mean is that the context of 2003, multiple civil rights movements, backlash of Bowers for not having strong constitutional grounds and the huge rise of media and internet era made it impossible for the Court not to address the liberty argument in reasoning Lawrence’s case, and since the liberty and privacy implications of the 14th Amendment were already used as base to legalize abortions in Wade as well as in other decisions, it held all constitutionality to be interpreted through the liberty argument.
I think that besides the issue of liberty that the Court based their decision on, there is another issue of equality, and I want to concur with the Court’s majority. I think that the intimacy acts between the same-sex partners not only are protected by the liberty and privacy argument of Due Process Clause of the 14th Amendment but also by the Equal Protection Clause.
First, Lawrence is not about sodomy only, it is about something more major on one side. The acts out of feelings, emotional attachment and mental health are embodied into the Lawrence case almost the same way as feeling of emotional and mental suffer was embodied in Roe case. Women denied a choice to determine their future might be compared to same sex couples denied a pick of affection and feelings they truly feel. Both denials lead to mental and physical suffering, distress and lives full of regrets and hesitations. This violates the equality claim by not letting all citizens of the United States act equally in mandating their choices in personal spheres.
Second, Lawrence is not about sodomy only, it is about something more major on the other side. I think that Lawrence case is not about sodomy and even not about the relationship. Relationship with the sexual activity as a part of it would be the closest that describes the case, but I think it is about a bigger form of personal identity. Identity as the right to express the true colors of a personality which should be equal for every person according to the US Constitution. Lawrence stating that he is not to be deprived to choose and love who he feels for, to me means that he needs to be let be who he is. Morality on personal affections and relationships is not universal and not always positively supported (having multiple wives is accepted in many cultures, protection of virginity does not exist anymore, adulteries are committed and silenced, etc.), hence different people have equal rights to derive happiness from personal life and be fulfilled. Lawrence had a different mindset from some people, but who does think identically? Moral codes depend on who interprets them and how much they want to criticize, and a lot of them can be questioned. In case of Lawrence, he was not questioning the moral codes, he was being himself in his own home and had a right for it equally guaranteed to him like to everyone else in the US.
Thanks for an in depth analysis of Lawrence v Texas. One of the greatest things about the American judicial system is the fact that court cases establish precedent. That precedent becomes the law until a “better” case/argument comes along to challenge, or sometimes, reinforce that precedent. In a case like this that involves not only “taboo” sexual act but and way of life that some Americans are not yet comfortable with. One would expect that the parties involved in case like this would be in a loving relationship or atleast committed lovers. No, that was not the case. What made me smile about Lawrence v Texas was the fact that John Geddes Lawrence nor his counterpart, Tyron Garner were actually in a relationship.
The New Yorker article “Extreme Makeover: The story behind the story of Lawrence v. Texas,” the author Dahlia Lithwick gives us a background story of what took place between the two “lovers”. There were 4 men in Lawrence’s apartment, one of whom called the police on the remaining 3 men; of the 3 men who remained was Lawrence and Garner. The fact remains that there was someone else present with them. There wasn’t any sexual activity happening at the time between them, but when the police entered Lawrence’s home, he saw an erotic image of a naked man on the wall, the police drew their conclusions. This shows how powerful the police and first responders are in framing the story at a crime scene.
The attorneys used the same tactics of the police– they lied. Just like the police fabricated seeing an act of sodomy that day, Lawrence’s attorneys argued that their clients were passionate lovers. They rightfully used this case to change the legal precedent which made a huge step in recognizing the humanity of same sex couples.
Masterpiece Cakeshop v Colorado Civil Rights Commission was a Supreme Court case from 2018 that addressed the issue of free speech and freedom of religion in context of anti-discrimination practices. Jack Phillips, owner of Masterpiece Cakeshop, refused to make a wedding cake for same sex couple Charlie Craig and David Mullins back in 2012, due to his Christian religious beliefs and the fact that gay marriage was not yet legal in Colorado. The Colorado Civil Rights Commission used the state’s anti-discrimination laws to examine this case and found that the bakery did discriminate against this couple and the bakery was ordered to provide cakes for same sex couples. The Question that the Supreme Court was answering in this case was does compelling a cake maker to design and make a cake that violates his religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? In a 7-2 decision, the court ruled that because the Colorado Civil Rights Commission failed to act in a religiously neutral way, they violated bakery owner Jack Phillips’ first amendment right to freedom of religion, and Supreme Court reversed the Commission’s decision.
I think that this is a very interesting Supreme Court Case. While I think that freedom of religion is an incredibly important part of our society, I think I ultimately disagree with the decision of the Supreme Court. I believe that someone should not be forced to do something that goes against their religious beliefs, but at the same time I also do not think that same sex couples should be discriminated against in this way. When discussing this case, a lot of people say that there are hundreds of other bakeries that would gladly make a wedding cake for same sex couples, however, gay or lesbian couples should not have to seek out specific bakeries that they know will serve them because of their sexual orientation. This relates to one of the readings that we had for last week, “Queer Lockdown” by Ann Cammett. This reading discusses the ways in which the LGBTQ community has been unfairly affected by the criminal justice system. Because sexual orientation is not a protected class federally, types of discrimination similar to the one in Masterpiece Cakeshop are allowed to occur. The LGBTQ community is disadvantaged and by continuing these discriminatory practices towards them and denying them the same rights and opportunities as everyone else, they will continue to be negatively affected by society.
Bucklew v Precythe (2019)
Russel Bucklew was a criminal that was convicted in the State of Missouri of both murder and rape and was sentenced to death by lethal injection. However, Bucklew suffered from a rare medical condition that would prevent the injection from working as intended. According to Russel Bucklew, death by lethal injection would cause him extreme suffering because he would most likely “hemorrhage during the execution, potentially choking on his own blood”. Thus, Russel Bucklew appealed the execution protocol himself, offering the court an alternative execution method. However, the court denied Bucklew’s request, claiming that the method of execution chosen by court doesn’t violates the 8 th Amendment, because the lethal injection isn’t “deliberately designed to inflict pain”
In my opinion, Russel Bucklew was sentenced for execution by lethal injection for serious crimes, both rape and murder. Russel Bucklew was a criminal who torched another person and violently took somebody’s else life. Moreover, he caused severe suffering not only to his victim directly, but also to her close family and children that will grow up without her presence in their lives. Under these circumstances, I agree with Court’s decision and I think it wouldn’t be fair to let him choose his execution method especially because Bucklew didn’t care about the pain and suffering that he caused to another person himself by violently murdering this woman.
I disagree with your analysis. The United States legal system is not an “eye for an eye” system. That is to say that people who violate the law do not receive punishments that are equal in pain to the crime they did. Indeed, the eighth amendment of the constitution states that no prisoner shall be given a cruel and unusual punishment. Bucklew ought have the right to avoid lethal injection because of this. Additionally, Bucklew’s family who must witness his execution are not also criminals. To have to witness a loved one suffer as they die can be very traumatizing. If capital punishment is legal, it must be conducted in a respectful manner that does not cause any suffering to both protect the criminal and the people who loved them.
I disagree with your analysis. The United States legal system is not an “eye for an eye” system. That is to say that people who violate the law do not receive punishments that are equal in pain to the crime they did. Indeed, the eighth amendment of the constitution states that no prisoner shall be given a cruel and unusual punishment. Bucklew ought have the right to avoid lethal injection because of this. Additionally, Bucklew’s family who must witness his execution are not also criminals. To have to witness a loved one suffer as they die can be very traumatizing. If capital punishment is legal, it must be conducted in a respectful manner that does not cause any suffering to both protect the criminal and the people who loved them.
Lawrence v Texas was brought to the supreme court in 2003 (!!) when Lawrence and Garner were found engaging in sexual activity. In the decision of the Bowers v Hardwick case, sex between people of the same gender was outlawed in Texas. The three questions brought to court was whether the prosecution of same sex intercourse violated the equal protection clause and due process clause of the fourteenth amendment, and whether Bowers v Hardwick should be overruled. The court decided that prosecution of sodomy did not violate the equal protection clause, but did violate due process, and so should contrary to Bowers deemed unconstitutional.
The case is appropriate in studying women’s rights, because it shows how much more difficult it is to protect the rights of oppressed groups. Specifically, all three men lived at the margins of society, and in addition were “hardly dream plaintiffs” for overturning the Bowers v Hardwick decision. They were poor and the article in addition comments on the vagueness of the word sodomy, which makes it even harder to protect.
In the case of the Cake Shop, the supreme court ruled 7-2 in favor of Phillips and his right to deny same sex couples his cakes. The supreme court upheld his right to deny the same sex couple on both his first amendment right and his freedom of religion. The Judges decided that the commissioner were not impartial to Phillips, and instead compared his religious beliefs to uphold slavery and the Holocaust. The judges found the commissioner to not be impartial in the matter. The Judges said that by allowing Phillips to deny same sex couples the right to his cake creations, it further supported the first amendment right. The first amendment must be upheld even if what is said is disagreed with on the broad scale, having the right to say it regardless of what it is, makes the first amendment so powerful. While the Phillips case does not necessarily set a precedent for all similar cases regarding denying service based on sexual orientation for religious companies it does set a precedent that the first amendment will continue to be upheld even if it does not placate social norms. The Phillips case was also a win for religious liberty and will allow religion to continue to protect peoples interest for the foreseeable future.
Thanks for an in depth analysis of Lawrence v Texas. One of the greatest things about the American judicial system is the fact that court cases establish precedent. That precedent becomes the law until a “better” case/argument comes along to challenge, or sometimes, reinforce that precedent. In a case like this that involves not only “taboo” sexual act but and way of life that some Americans are not yet comfortable with. One would expect that the parties involved in case like this would be in a loving relationship or atleast committed lovers. No, that was not the case. What made me smile about Lawrence v Texas was the fact that John Geddes Lawrence nor his counterpart, Tyron Garner were actually in a relationship.
The New Yorker article “Extreme Makeover: The story behind the story of Lawrence v. Texas,” the author Dahlia Lithwick gives us a background story of what took place between the two “lovers”. There were 4 men in Lawrence’s apartment, one of whom called the police on the remaining 3 men; of the 3 men who remained was Lawrence and Garner. The fact remains that there was someone else present with them. There wasn’t any sexual activity happening at the time between them, but when the police entered Lawrence’s home, he saw an erotic image of a naked man on the wall, the police drew their conclusions. This shows how powerful the police and first responders are in framing the story at a crime scene.
The attorneys used the same tactics of the police– they lied. Just like the police fabricated seeing an act of sodomy that day, Lawrence’s attorneys argued that their clients were passionate lovers. They rightfully used this case to change the legal precedent which made a huge step in recognizing the humanity of same sex couples.