Clashing Worldviews

Bowers: Is Homosexual Conduct Within the Liberties Protected by the Fourteenth Amendment’s Due Process Clause?

Although the Supreme Court careers of both Chief Justice Rehnquist and Justice Blackmun coincided for more than two decades, they did not write opposing opinions in a major Supreme Court case dealing with the issue of homosexual conduct. Justice Blackmun wrote the leading dissent in Bowers v. Hardwick, whereas Rehnquist's majority decision in Boy Scouts v. Dale came after Blackmun's resignation in 1994. Yet, the analysis provided by Justice White in the majority opinion in Bowers v. Hardwick, which Chief Justice Rehnquist joined, follows precisely the same logic and precedent as the Chief Justice followed in his majority opinion in Washington v. Glucksberg, which considered whether a person has a due process right to assisted suicide. So, chapter 9 engages in an educated guess in what the Chief Justice would have written for the majority in Bowers v. Hardwick, an opinion actually written by the only Justice who joined Rehnquist in the Roe v. Wade dissent.