Can Smith v. Doe be overturned?
in 2003, the Supreme Court of the United States dealt us a very bad hand. The Court’s decision in Smith v. Doe, has been the foundation upon which States (and even the federal government itself) have been able to pile on additional requirements and restraints, under the premise that “the registry” is not punishment.
A lot has happened since 2003. First, a ton of research has come out disproving the “frightening and high” myth that the Court relied on at that time. And second, this “pile” of additional requirements and restraints has created what is now being referred to as “second generation” sex offender laws – a registry that has very little resemblance to the registry that existed 15 years ago when Smith v. Doe was decided.
A wave of court cases have been making their way to the Supreme Court lately, some (like Does v. Snyder) haven’t made it through the gate but others (mostly dealing with narrow issues – such as Nichols, Packingham and Gundy) have been heard. More are making their way up the ladder.
Which has prompted several to ask whether it’s even possible to overturn a Supreme Court decision.
Ordinarily the doctrine of Stare Decisis dictates that rules or principles set out in previous judicial decisions apply as precedent. An appellate court can overturn a trial court and a supreme court can overturn an appellate court. But with the SCOTUS being the most supreme court in the land, who can overturn the Supreme Court? The answer is… itself.
In 1896, The Supreme Court of the United States upheld the doctrine of “separate but equal” in Plessy v. Ferguson. It took a long time (too long) for the court to overturn that decision. In 1954’s Brown v. Board of Education of Topeka, they ruled that schools segregated by race were unconstitutional.
It is possible to overturn Smith v. Doe. We just need to get that case before the Supreme Court!
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Anything is possible with SCOTUS. A case can be overturned when it is seen in a new light or perspective, and well, our issues make the perfect light ” with considerable time frame ” passed for Smith V. Doe to be overturned with all the research and evidence against it since 2003 – as stated in the post above.
The highest court usually follows ” stare decisis ” which is why most cases take a long time to be overturned ( the longer the amount of time passed, the better chance for it to be overturned ) as such was the case of Plessy V. Ferguson which was too damn long and many others like it. But SCOTUS has broken their stare decisis in one particular case:
Bowers v. Hardwick (1986 )
In this 1986 case, the Supreme Court upheld a Georgia anti-sodomy law that forbade oral or anal sex between consenting adults — regardless of the sexual orientation of either party. Through unusual circumstances, Michael Hardwick was seen engaging in oral sex with another man in his own bedroom by a police officer, and was arrested. Although the state declined to prosecute, the American Civil Liberties Union took up the case to test the constitutionality of anti-sodomy laws, and the case eventually made its way to the Supreme Court.
Homophobia clearly marked the Court’s decision to uphold the law. The majority declared that homosexual sodomy was traditionally considered an abominable and illegal practice, specifically ruling that the Constitution didn’t provide any inherent right to practice homosexual activity. Although the law in question covered both heterosexual and homosexual sodomy, the majority made it clear that the homosexual nature of the act was the key issue.
In 2003, the Supreme Court decided the case of Lawrence v. Texas by rejecting Texas’s anti-sodomy law, essentially declaring that the Bowers decision was incorrect. Justice Anthony Kennedy’s majority opinion stated, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The dissent also specifically noted that the court was going against stare decisis by overturning Bowers.
it took 17 years for Bowers to be overturned. How old is Smith now ? 15 years old ? 🙂
@ Jack
Yes!, I believe the overturn of Bowers V. Hardwick case (1986) because of the Lawrence V. Texas case (2003) was the first and only time that SCOTUS went against their stare decisis, making it a shorter time frame than usual. ( 17 years )
I hope we can have a similar fate to this as well regarding its shorter time frame and outcome !! It’s interesting that when this was overturned in 2003 by Kennedy, Smith was being heard(2003) and delivered by Kennedy as well.
@ Debbie
Yes, hopefully Smith can have the same fate as the Bower case and be overturned and in the same short time frame. That’ll be wonderful.
Of course, the problem with getting your hopes up relying on Lawrence or Brown for that matter is that by the time that we got to 1954 and 2003, a substantial number of Americans WANTED Plessy and Bowers to go the way of the dodo. That was particularly the case with Bowers as it sanctioned the criminalization of private homosexual behavior. People lose sight of the fact that Bowers is what made the gay marriage ban perfectly legal and logical up until 2003. You can’t force a state to sanction what your highest court has already said can be criminal behavior.
Pray that they come to common sense
Ohhh yes it can. but…. I don’t think any of these recent cases are going to put the nail in the coffin to Smith V. Doe and the registry. They are no doubt pieces to a bigger picture on its way to complete a much bigger thing. The more narrow issues as you said, that go in our favor such as the Packingham, Snyder, etc. the more pieces to a bigger issue. If I had to predict and place a bet, I’d bet the Colorado case with the ruling from long time conservative Federal Judge Matsch can and most likely put the nail in that coffin for us. I would think that is the perfect case. He ruled the registry in its entirety to be unconstitutional – plain and simple (it is waiting on appeal right now I believe ) If it does make it to SCOTUS, I predict it will be a unanimous decision in our favor.
The Millard v Rankin Case (Appeal from Matsch’s court) has oral arguments THIS Thursday. See page 12 at https://www.ca10.uscourts.gov/sites/default/files/calendar/events/November_2018_Final.pdf.
And just to relive the glory of Matsch’s opinion, here it is for reference. https://www.leagle.com/decision/infdco20170901c12
@ E
Thank you for this.
@Joseph.
Links provided by E
@ E
page 11 , thanks for this though.
That is awesome. It is this Thursday at 9AM. Most likely 11AM EST.
@ Bobby, do you have a link for this case. Thanks
I believe the answer to this question may be found in Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 US 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (emphasizing that only the Supreme Court may overturn its own precedent). This leaves the door open for SCOTUS to recognize that it relied on faulty data/facts/research to decide Smith v. Doe.
There are now two justices who have been accused of sexual misconduct without substantial evidence. Whether that will help our cause is anyone’s guess.
Can Smith V. Doe be overturned ?? Yes it can. SCOTUS has overturned themselves before and I like this panel mix of SCOTUS justices now. I’m not a legal expert or fortune teller, but I have a strong feeling, that it is getting close to that considering the cases (with their briefs) being accepted by SCOTUS relevant to our issues.