JOHN GEDDES LAWRENCE and TYRON GARNER, Petitioners v. TEXAS
No. 02-102
SUPREME COURT OF THE UNITED STATES
123 S. Ct. 2472; 156 L. Ed. 2d 508; 2003 U.S. LEXIS 5013;
71 U.S.L.W. 4574; 2003 Cal. Daily Op. Service 5559; 2003
Daily Journal DAR 7036; 16 Fla. L. Weekly Fed. S 427
March 26, 2003, Argued
June 26, 2003, Decided
NOTICE: [***1] The LEXIS pagination of this document is subject to change
pending release of the final published version.
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF TEXAS,
FOURTEENTH DISTRICT. Lawrence v. State, 41 S.W.3d 349, 2001 Tex. App. LEXIS
1776 (Tex. App. Houston 14th Dist., 2001)
DISPOSITION: 41 S. W. 3d 349, reversed and remanded.
DECISION:
Convictions of two adults for consensual sexual intimacy in home --
under Texas statute criminalizing "deviate sexual intercourse" between
individuals of same sex -- held to violate adults' due process liberty
and privacy interests.
SUMMARY:
In Bowers v Hardwick (1986) 478 US 186, 92 L Ed 2d 140, 106 S Ct 2841, the
United States Supreme Court held that the due process clause of the Federal
Constitution's Fourteenth Amendment did not (1) confer a fundamental right
upon homosexuals to engage in consensual sodomy, or (2) invalidate a
Georgia statute that criminalized acts of consensual sodomy -- regardless
of whether the participants were of the same sex -- even when the acts in
question occurred in the privacy of the home. In so holding, the Supreme
Court (1) noted that the laws of many states made such conduct illegal,
and (2) proscriptions against such conduct had "ancient roots".
Subsequently, police officers in Texas, responding to a reported weapons
disturbance, entered a man's apartment and observed the man engaging in anal
sexual intercourse with another man. Although this conduct was in private and
consensual, the two men were arrested and charged with violating a Texas sodomy
statute which made it a misdemeanor for a person to engage in "deviate sexual
intercourse" with another individual of the same sex. The men were convicted in
Texas' Harris County Criminal Court and were assessed fines of $200 each. The
Court of Appeals of Texas, in affirming, concluded that (1) the statute did not
violate the Fourteenth Amendment's equal protection and due process clauses, and
(2) Bowers v Hardwick was controlling as to the federal due process aspect of
the case (41 SW3d 349).
[**509] On certiorari, the Supreme Court reversed and remanded. In an
opinion by Kennedy, J., joined by Stevens, Souter, Ginsburg, and Breyer, JJ., it
was held that:
(1) The convictions under the Texas statute violated the two men's vital
interests in liberty and privacy protected by the due process clause, for among
other reasons, (a) the statute, although purporting to do no more than prohibit
a particular sexual act, sought to control a personal relationship that was
within the liberty of persons to choose without being punished as criminals; (b)
the stigma that the statute imposed was not trivial; and (c) the statute
furthered no legitimate state interest which could justify the statute's
intrusion into the personal and private life of the individual.
(2) Bowers v Hardwick was overruled, for among other reasons, (a) the
historical premises relied upon in Bowers were not without doubt and, at the
very least, were overstated; (b) an emerging recognition that liberty gave
substantial protection to adult persons in deciding how to conduct their private
lives in matters pertaining to sex ought to have been apparent when Bowers was
decided; (c) the foundations of Bowers had subsequently sustained serious
erosion from more recent Supreme Court decisions, and criticism of Bowers by
some scholars and state courts had been substantial and continuing; (d) to the
extent that Bowers had relied on values shared with a wider civilization, the
reasoning and holding in Bowers had been rejected by various courts outside the
United States; and (e) there had been no individual or societal reliance on
Bowers of the sort that could have counseled against overturning Bowers' holding
once there were compelling reasons to do so.
O'Connor, J., concurring in the judgment, (1) agreed that the Texas statute
was unconstitutional; (2) based this conclusion not on the substantive component
of the due process clause, but rather on the equal protection clause, on the
asserted grounds that (a) the conduct targeted by the statute was conduct that
was closely correlated with being homosexual, and (b) the statute thus
discriminated against homosexual persons as a class; and (3) did not join in
overruling Bowers v Hardwick.
Scalia, J., joined by Rehnquist, Ch. J., and Thomas, J., dissenting,
expressed the view that (1) Bowers v Hardwick ought not to have been overruled;
(2) the Texas statute did not violate due process, as the statute (a) did not
infringe a fundamental right, and (b) was supported by a rational relation to a
legitimate state interest in the promotion of majoritarian sexual morality; and
(3) the statute did not deny the equal protection of the laws.
Thomas, J., dissenting, expressed the view that (1) the Texas statute was
"uncommonly silly" and ought to be repealed by the state legislature, but (2)
the Supreme Court was not empowered to help, for there was no general right of
privacy in the Bill of Rights or in any other part of the Constitution.
LAWYERS' EDITION HEADNOTES: [**510]
[**HN1]
CONSTITUTIONAL LAW §528.1
SODOMY §1
-- due process -- liberty -- privacy -- homosexuals
Headnote: [1A] [1B] [1C] [1D] [1E]
The criminal convictions of two adults for consensual sexual intimacy in the
home--under a state's sodomy statute making it a misdemeanor for a person to
engage in "deviate sexual intercourse" with another individual of the same
sex--violated the adults' vital interests in liberty and privacy protected by
the due process clause of the Federal Constitution's Fourteenth Amendment, for:
(1) The case at hand did not involve (a) minors, (b) persons who might be
injured or coerced or who were situated in relationships where consent might not
easily be refused, (c) public conduct or prostitution, or (d) the question
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter.
(2) The statute, although purporting to do no more than prohibit a particular
sexual act, sought to control a personal relationship that--whether or not
entitled to formal recognition in the law--was within the liberty of persons to
choose without being punished as criminals. The state could not demean the
adults' existence or control their destiny by making their private sexual
conduct a crime, as the adults' right to liberty under the due process clause
gave them the full right to engage in their conduct without intervention of the
government.
(3) The stigma that the statute imposed was not trivial, since the
misdemeanor--although a minor offense in the state's legal system--remained a
criminal offense with all that this imported for the dignity of the persons
charged.
(4) The statute furthered no legitimate state interest which could justify
the statute's intrusion into the personal and private life of the individual.
The right sought by the adults in the case at hand has been accepted as an
integral part of human freedom in many other countries. There was no showing
that in the United States, the governmental interest in circumscribing personal
choice was somehow more legitimate or urgent.
(O'Connor and Scalia, JJ., Rehnquist, Ch. J., and Thomas, JJ., dissented from
this holding.)
[**HN2]
COURTS §776
-- overruling erroneous decision -- Bowers v Hardwick
Headnote: [2A] [2B] [2C] [2D] [2E] [2F] [2G] [2H] [2I]
In determining whether the convictions of two adults for consensual sexual
intimacy in the home--under a state's sodomy statute criminalizing "deviate
sexual intercourse" between individuals of the same sex--violated the adults'
interests in liberty and privacy protected by the due process clause of the
Federal Constitution's Fourteenth Amendment, the United States Supreme Court
overruled Bowers v Hardwick (1986) 478 US 186, 92 L Ed 2d 140, 106 S Ct 2841,
for:
(1) Bowers had held that another state's statute making it a criminal offense
to engage in sodomy, as the statute was applied to homosexuals, did not violate
the Constitution.
(2) In stating the claim to be whether there was a fundamental right to
engage in consensual sodomy, Bowers had misapprehended the claim of [**511]
liberty that had been presented to the Supreme Court.
(3) The historical grounds relied upon in Bowers were more complex than the
majority opinion and one of the concurring opinions in that case had indicated.
Their historical premises were not without doubt and, at the very least, were
overstated.
(4) An emerging recognition that liberty gave substantial protection to adult
persons in deciding how to conduct their private lives in matters pertaining to
sex ought to have been apparent when Bowers was decided.
(5) Bowers' deficiencies had become more apparent in the years following its
announcement, when (a) the number of states with sodomy laws was reduced to 13,
of which four enforced their laws only against homosexual conduct, and (b) in
those states--including the state in the case at hand--that still proscribed
sodomy, there was a pattern of nonenforcement with respect to consenting adults
acting in private.
(6) The foundations of Bowers had sustained serious erosion from more recent
Supreme Court decisions, and criticism of Bowers by some scholars and state
courts had been substantial and continuing, with disapproval of Bowers'
reasoning in all respects and not just as to its historical assumptions.
(7) To the extent that Bowers had relied on values shared with a wider
civilization, the reasoning and holding in Bowers had been rejected by various
courts outside the United States.
(8) There had been no individual or societal reliance on Bowers of the sort
that could have counseled against overturning Bowers' holding once there were
compelling reasons to do so. Bowers itself had caused uncertainty, as the
precedents before and after Bowers' issuance contradicted its central holding.
(9) Thus, (a) the rationale of Bowers did not withstand careful analysis, and
(b) Bowers was not correct, even when it was decided.
(O'Connor and Scalia, JJ., Rehnquist, Ch. J., and Thomas, JJ., dissented from
this holding.)
[**HN3]
CIVIL RIGHTS §4.5
COURTS §92.5
-- review of legislation -- morality -- miscegenation
Headnote: [3A] [3B]
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; for example, neither history nor tradition could save
a law prohibiting miscegenation from attack under the Federal Constitution. In
reviewing such a law, the United States Supreme Court's obligation is to define
the liberty of all, not to mandate the court's own moral code. (Scalia, J.,
Rehnquist, Ch. J., and Thomas, J., dissented in part from this holding.)
[**HN4]
CONSTITUTIONAL LAW §513
-- substantive due process
Headnote: [4]
In inquiring whether a law satisfies the Federal Constitution's substantive
due process guarantee, history and tradition are the starting point, but not in
all cases the ending point, of the inquiry.
[**HN5]
COURTS §775
-- stare decisis
Headnote: [5]
The doctrine of stare decisis (1) is essential to the respect accorded to the
judgments of the United States Supreme Court and to the stability of the law,
but (2) is not an inexorable command. [**512]
[**HN6]
CONSTITUTIONAL LAW §528.1
-- due process -- liberty -- intimate relationships
Headnote: [6]
Individual decisions by married persons, concerning the intimacies of their
physical relationship, even when not intended to produce offspring, are a form
of "liberty" protected by the due process clause of the Federal Constitution's
Fourteenth Amendment. This protection extends to intimate choices by unmarried
as well as married persons. (Scalia, J., Rehnquist, Ch. J., and Thomas, J.,
dissented from this holding.)
[**HN7]
CONSTITUTIONAL LAW §525
-- due process -- personal liberty
Headnote: [7]
With respect to the right to liberty under the Federal Constitution's due
process guarantee, it is a promise of the Constitution that there is a realm of
personal liberty which the government may not enter. (Scalia, J., Rehnquist,
Ch. J., and Thomas, J., dissented from this holding.)
SYLLABUS:
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 [**513] 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, 92 L. Ed. 2d 140, 106 S. Ct. 2841, [***2] 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.
(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 US, at 190, 92 L Ed 2d 140, 106
S Ct 284--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 not more than prohibit a particular sexual act, their penalties
and purposes have more far-reaching consequences, touching [***3] 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.
(b) Having misapprehended the liberty claim presented to it, the Bowers Court
stated that proscriptions against sodomy have ancient roots. 478 US, at 192, 92
L Ed 2d 140, 106 S Ct 284. 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 [***4] 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
[**514] "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 same-sex 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, 120 L. Ed.
2d 674, 112 S. Ct. 2791. [***5] 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, 140 L. Ed. 2d 1043, 118 S. Ct. 1708.
(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, 120 L Ed 2d 674, 112 S Ct 2791 --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, 134 L. Ed. 2d 855, 116 S. Ct. 1620 --which struck down
class-based legislation directed at homosexuals--cast Bowers' holding into even
more doubt. The stigma [***6] 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, 115 L. Ed. 2d 720, 111 S. Ct. 2597. [***7]
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, 120 L Ed 2d 674, 112 S Ct [**515] 2791. Bowers
causes uncertainty, for the precedents before and after it contradict its
central holding.
(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 [***8] 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, 120 L Ed 2d 674, 112 S Ct 2791. The Texas statute furthers no
legitimate state interest which can justify its intrusion into the individual's
personal and private life.
41 SW3d 349, reversed and remanded.
COUNSEL:
Paul M. Smith argued the cause for petitioners.
Charles A. Rosenthal, Jr. argued the cause for respondent.
JUDGES: Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion
concurring in the judgment. Scalia, J., filed a dissenting opinion, in which
Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting
opinion.
OPINIONBY: KENNEDY
OPINION: [*2475] Justice Kennedy delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a
dwelling or other private places. In our tradition the State is not omnipresent
in the home. And there are other spheres of our lives and existence, outside
the home, where the State should not be a dominant presence. Freedom extends
beyond spatial bounds. Liberty presumes an autonomy of self that includes
freedom of thought, [***9] belief, expression, and certain intimate conduct.
The instant case involves liberty of the person both in its spatial and more
transcendent dimensions.
I
[**HR1A] [1A] The question before the Court is the validity of a Texas
statute making it a crime for two persons of the same sex to engage in certain
intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were
dispatched to a private residence in response to a reported weapons disturbance.
They entered an apartment where one of the petitioners, John Geddes Lawrence,
resided. The right of the police to enter does not seem to have been
questioned. The officers observed Lawrence and another [*2476] man, Tyron
Garner, engaging in a sexual act. [**516] The two petitioners were arrested,
held in custody over night, and charged and convicted before a Justice of the
Peace.
The complaints described their crime as "deviate sexual intercourse, namely
anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a,
139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It
provides: "A person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex." The [***10] statute
defines "deviate sexual intercourse" as follows:
"(A) any contact between any part of the genitals of one person and
the mouth or anus of another person; or
"(B) the penetration of the genitals or the anus of another person
with an object." § 21.01(1).
The petitioners exercised their right to a trial de novo in Harris County
Criminal Court. They challenged the statute as a violation of the Equal
Protection Clause of the Fourteenth Amendment and of a like provision of the
Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were
rejected. The petitioners, having entered a plea of nolo contendere, were each
fined $ 200 and assessed court costs of $ 141.25. App. to Pet. for Cert.
107a-110a.
The Court of Appeals for the Texas Fourteenth District considered the
petitioners' federal constitutional arguments under both the Equal Protection
and Due Process Clauses of the Fourteenth Amendment. After hearing the case en
banc the court, in a divided opinion, rejected the constitutional arguments and
affirmed the convictions. 41 S. W. 3d 349 (Tex. App. 2001). The majority
opinion indicates that the Court of Appeals considered our decision in Bowers v.
Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), [***11] to be
controlling on the federal due process aspect of the case. Bowers then being
authoritative, this was proper.
We granted certiorari, 537 U.S. 1044, 154 L. Ed. 2d 514, 123 S. Ct. 661
(2002), to consider three questions:
"1. Whether Petitioners' criminal convictions under the Texas
"Homosexual Conduct" law--which criminalizes sexual intimacy by
same-sex couples, but not identical behavior by different-sex
couples--violate the Fourteenth Amendment guarantee of equal
protection of laws?
"2. Whether Petitioners' criminal convictions for adult consensual
sexual intimacy in the home violate their vital interests in liberty
and privacy protected by the Due Process Clause of the Fourteenth
Amendment?
"3. Whether Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106
S. Ct. 2841 (1986), should be overruled?" Pet. for Cert. i.
The petitioners were adults at the time of the alleged offense. Their
conduct was in private and consensual.
II
We conclude the case should be resolved by determining whether the
petitioners were free as adults to engage in the private conduct in the exercise
of their liberty under the Due Process Clause of the Fourteenth Amendment to the
Constitution. For this inquiry we deem it necessary [***12] [**517] to
reconsider the Court's holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due
Process Clause in earlier cases, including Pierce v. Society of Sisters, 268
U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), and Meyer v. Nebraska, 262 U.S.
390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); but the most pertinent beginning
point is our decision in Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d
510, 85 S. Ct. 1678 (1965).
In Griswold the Court invalidated a state law prohibiting the use of drugs or
devices of contraception and counseling or [*2477] aiding and abetting the use
of contraceptives. The Court described the protected interest as a right to
privacy and placed emphasis on the marriage relation and the protected space of
the marital bedroom. Id., at 485, 14 L Ed 2d 510, 85 S Ct 1678.
After Griswold it was established that the right to make certain decisions
regarding sexual conduct extends beyond the marital relationship. In Eisenstadt
v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972), the Court
invalidated a law prohibiting the distribution of contraceptives to unmarried
persons. The case was decided under the Equal Protection Clause, id., at 454,
31 L Ed 2d 349, 92 S Ct 1029; but with respect [***13] to unmarried persons,
the Court went on to state the fundamental proposition that the law impaired the
exercise of their personal rights, ibid. It quoted from the statement of the
Court of Appeals finding the law to be in conflict with fundamental human
rights, and it followed with this statement of its own:
"It is true that in Griswold the right of privacy in question
inhered in the marital relationship. . . . If the right of privacy
means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or
beget a child." Id., at 453, 31 L Ed 2d 349, 92 S Ct 1029.
The opinions in Griswold and Eisenstadt were part of the background for the
decision in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973).
As is well known, the case involved a challenge to the Texas law prohibiting
abortions, but the laws of other States were affected as well. Although the
Court held the woman's rights were not absolute, her right to elect an abortion
did have real and substantial protection as an exercise of her liberty under the
Due Process Clause. The Court [***14] cited cases that protect spatial freedom
and cases that go well beyond it. Roe recognized the right of a woman to make
certain fundamental decisions affecting her destiny and confirmed once more that
the protection of liberty under the Due Process Clause has a substantive
dimension of fundamental significance in defining the rights of the person.
In Carey v. Population Services Int'l, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S.
Ct. 2010 (1977), the Court confronted a New York law forbidding sale or
distribution of contraceptive devices to persons under 16 years of age.
Although there was no single opinion for the Court, the law was invalidated.
Both Eisenstadt and Carey, as well as the holding and rationale in Roe,
confirmed that the [**518] reasoning of Griswold could not be confined to the
protection of rights of married adults. This was the state of the law with
respect to some of the most relevant cases when the Court considered Bowers v
Hardwick.
[**HR2A] [2A] The facts in Bowers had some similarities to the instant
case. A police officer, whose right to enter seems not to have been in
question, observed Hardwick, in his own bedroom, engaging in intimate sexual
conduct with another [***15] adult male. The conduct was in violation of a
Georgia statute making it a criminal offense to engage in sodomy. One difference
between the two cases is that the Georgia statute prohibited the conduct whether
or not the participants were of the same sex, while the Texas statute, as we
have seen, applies only to participants of the same sex. Hardwick was not
prosecuted, but he brought an action in federal court to declare the state
statute invalid. He alleged he was a practicing homosexual and that the
criminal prohibition violated rights guaranteed to him by the Constitution. The
Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice
Burger and Justice Powell joined the opinion of the Court and filed separate,
concurring opinions. Four Justices dissented. 478 US, at 199, 92 L Ed 2d 140,
106 S Ct 2841 (opinion of Blackmun, J., joined by Brennan, Marshall, and
Stevens, JJ.); id., at 214, 92 L Ed 2d 140, 106 S Ct 2841 [*2478] (opinion of
Stevens, J., joined by Brennan and Marshall, JJ.).
[**HR1B] [1B] The Court began its substantive discussion in Bowers as
follows: "The issue presented is whether the Federal Constitution confers a
fundamental right upon homosexuals to engage in sodomy and hence invalidates
[***16] the laws of the many States that still make such conduct illegal and
have done so for a very long time." Id., at 190, 92 L Ed 2d 140, 106 S Ct 2841.
That statement, we now conclude, discloses the Court's own 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 to be said
marriage is simply about the right to have sexual intercourse. The laws involved
in Bowers and here are, to be sure, statutes that purport to do no more than
prohibit a particular sexual act. Their penalties and purposes, though, have
more far-reaching consequences, touching upon the most private human conduct,
sexual behavior, and in the most private of places, the home. The statutes do
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.
This, as a general rule, should counsel against attempts by the State, or a
court, to define the meaning of the relationship or to set its boundaries absent
injury to a [***17] person or abuse of an institution the law protects. It
suffices for us to acknowledge that adults may choose to enter upon this
relationship in the confines of their homes and their own private lives and
still retain their dignity as free persons. When sexuality finds overt
expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring. The liberty protected by the
Constitution allows [**519] homosexual persons the right to make this choice.
[**HR2B] [2B] Having misapprehended the claim of liberty there presented to
it, and thus stating the claim to be whether there is a fundamental right to
engage in consensual sodomy, the Bowers Court said: "Proscriptions against that
conduct have ancient roots." Id., at 192, 92 L Ed 2d 140, 106 S Ct 2841. In
academic writings, and in many of the scholarly amicus briefs filed to assist
the Court in this case, there are fundamental criticisms of the historical
premises relied upon by the majority and concurring opinions in Bowers. Brief
for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties
Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as
Amici [***18] Curiae 3-10. We need not enter this debate in the attempt to
reach a definitive historical judgment, but the following considerations counsel
against adopting the definitive conclusions upon which Bowers placed such
reliance.
At the outset it should be noted that there is no longstanding history in
this country of laws directed at homosexual conduct as a distinct matter.
Beginning in colonial times there were prohibitions of sodomy derived from the
English criminal laws passed in the first instance by the Reformation Parliament
of 1533. The English prohibition was understood to include relations between
men and women as well as relations between men and men. See, e.g., King v
Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of
1533 as including women and girls). Nineteenth-century commentators similarly
read American sodomy, buggery, and crime-against-nature statutes as
criminalizing certain relations between men and women and between men and men.
See, e.g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law
47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143
(1882); J. May, The Law [***19] of Crimes § 203 (2d ed. 1893). The absence of
legal prohibitions focusing on homosexual conduct may be explained in part by
noting that according to some scholars the concept of the homosexual as a
distinct category of [*2479] person did not emerge until the late 19th century.
See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E.
Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997)
("The modern terms homosexuality and heterosexuality do not apply to an era that
had not yet articulated these distinctions"). Thus early American sodomy laws
were not directed at homosexuals as such but instead sought to prohibit
nonprocreative sexual activity more generally. This does not suggest approval
of homosexual conduct. It does tend to show that this particular form of
conduct was not thought of as a separate category from like conduct between
heterosexual persons.
Laws prohibiting sodomy do not seem to have been enforced against consenting
adults acting in private. A substantial number of sodomy prosecutions and
convictions for which there are surviving records were for predatory acts
against those who could not or did not consent, as [***20] in the case of a
minor or the victim of an assault. As to these, one purpose for the
prohibitions was to ensure there would be no lack of coverage if a predator
committed a sexual assault that did not constitute rape [**520] as defined by
the criminal law. Thus the model sodomy indictments presented in a 19th-century
treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult
man against a minor girl or minor boy. Instead of targeting relations between
consenting adults in private, 19th-century sodomy prosecutions typically
involved relations between men and minor girls or minor boys, relations between
adults involving force, relations between adults implicating disparity in
status, or relations between men and animals.
To the extent that there were any prosecutions for the acts in question,
19th-century evidence rules imposed a burden that would make a conviction more
difficult to obtain even taking into account the problems always inherent in
prosecuting consensual acts committed in private. Under then-prevailing
standards, a man could not be convicted of sodomy based upon testimony of a
consenting partner, because the partner was considered an accomplice. A partner
's [***21] testimony, however, was admissible if he or she had not consented to
the act or was a minor, and therefore incapable of consent. See, e.g., F.
Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed.
1880). The rule may explain in part the infrequency of these prosecutions. In
all events that infrequency makes it difficult to say that society approved of a
rigorous and systematic punishment of the consensual acts committed in private
and by adults. The longstanding criminal prohibition of homosexual sodomy upon
which the Bowers decision 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.
The policy of punishing consenting adults for private acts was not much
discussed in the early legal literature. We can infer that one reason for this
was the very private nature of the conduct. Despite the absence of
prosecutions, there may have been periods in which there was public criticism of
homosexuals as such and an insistence that the criminal laws be enforced to
discourage their practices. But far from possessing "ancient roots," [***22]
Bowers, 478 U.S., at 192, 92 L Ed 2d 140, 106 S Ct 2841, American laws targeting
same-sex couples did not develop until the last third of the 20th century. The
reported decisions concerning the prosecution of consensual, homosexual sodomy
between adults for the years 1880-1995 are not always clear in the details, but
a significant number involved conduct in a public place. See Brief for American
Civil Liberties Union et al. as Amici Curiae 14-15, and n 18.
It was not until the 1970's that any State singled out same-sex relations for
criminal prosecution, and only nine States have done so. See 1977 Ark. Gen.
Acts no. 828; 1983 Kan. Sess. Laws p 652; 1974 Ky. [*2480] Acts p 847; 1977
Mo. Laws p 687; 1973 Mont. Laws p 1339; 1977 Nev. Stats. p 1632; 1989 Tenn. Pub.
Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 1986 OK CR
30, 715 P.2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to
different-sex couples). Post-Bowers even some of these States did not adhere to
the policy of suppressing homosexual conduct. Over the course of the last
decades, States with same-sex prohibitions have moved toward abolishing them.
See, e.g., Jegley v. [**521] Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002);
[***23] Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v.
Sundquist, 926 S.W.2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S.W.2d
487 (Ky. 1992); see also 1993 Nev. Stats. p 518 (repealing Nev. Rev. Stat. §
201.193).
In summary, the historical grounds relied upon in Bowers are more complex
than the majority opinion and the concurring opinion by Chief Justice Burger
indicate. Their historical premises are not without doubt and, at the very
least, are overstated.
[**HR3A] [3A] It must be acknowledged, of course, that the Court in Bowers
was making the broader point that for centuries there have been powerful voices
to condemn homosexual conduct as immoral. The condemnation has been shaped by
religious beliefs, conceptions of right and acceptable behavior, and respect for
the traditional family. For many persons these are not trivial concerns but
profound and deep convictions accepted as ethical and moral principles to which
they aspire and which thus determine the course of their lives. These
considerations do not answer the question before us, however. The issue is
whether the majority may use the power of [***24] the State to enforce these
views on the whole society through operation of the criminal law. "Our
obligation is to define the liberty of all, not to mandate our own moral code."
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 120 L. Ed.
2d 674, 112 S. Ct. 2791 (1992).
[**HR2C] [2C] [**HR4] [4] Chief Justice Burger joined the opinion for the
Court in Bowers and further explained his views as follows: "Decisions of
individuals relating to homosexual conduct have been subject to state
intervention throughout the history of Western civilization. Condemnation of
those practices is firmly rooted in Judeao-Christian moral and ethical
standards." 478 US, at 196, 92 L Ed 2d 140, 106 S Ct 2841. As with Justice
White's assumptions about history, scholarship casts some doubt on the sweeping
nature of the statement by Chief Justice Burger as it pertains to private
homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and
Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our
laws and traditions in the past half century are of most relevance here. These
references show an emerging awareness that liberty gives substantial protection
to adult persons in deciding how [***25] to conduct their private lives in
matters pertaining to sex. "History and tradition are the starting point but
not in all cases the ending point of the substantive due process inquiry."
County of Sacramento v. Lewis, 523 U.S. 833, 857, 140 L. Ed. 2d 1043, 118 S. Ct.
1708 (1998) (Kennedy, J., concurring).
[**HR2D] [2D] This emerging recognition should have been apparent when
Bowers was decided. In 1955 the American Law Institute promulgated the Model
Penal Code and made clear that it did not recommend or provide for "criminal
penalties for consensual sexual relations conducted in private." ALI, Model
Penal Code § 213.2, Comment 2, p 372 (1980). It justified its decision on three
grounds: (1) The prohibitions undermined respect for the law by penalizing
conduct many people engaged in; (2) the statutes regulated private conduct not
harmful to others; and (3) the laws were arbitrarily [**522] enforced and thus
invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280
(Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the
Model Penal Code. [*2481] Other States soon followed. Brief for Cato
Institute as Amicus Curiae 15-16.
In Bowers the Court referred to the fact that before [***26] 1961 all 50
States had outlawed sodomy, and that at the time of the Court's decision 24
States and the District of Columbia had sodomy laws. 478 U.S., at 192-193, 92 L
Ed 2d 140, 106 S Ct 2841. Justice Powell pointed out that these prohibitions
often were being ignored, however. Georgia, for instance, had not sought to
enforce its law for decades. Id., at 197-198, n. 2, 92 L Ed 2d 140, 106 S Ct
2841 ("The history of nonenforcement suggests the moribund character today of
laws criminalizing this type of private, consensual conduct").
The sweeping references by Chief Justice Burger to the history of Western
civilization and to Judeo-Christian moral and ethical standards did not take
account of other authorities pointing in an opposite direction. A committee
advising the British Parliament recommended in 1957 repeal of laws punishing
homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual
Offenses and Prostitution (1963). Parliament enacted the substance of those
recommendations 10 years later. Sexual Offences Act 1967, § 1.
Of even more importance, almost five years before Bowers was decided the
European Court of Human Rights considered a case with parallels to Bowers and to
today's [***27] case. An adult male resident in Northern Ireland alleged he
was a practicing homosexual who desired to engage in consensual homosexual
conduct. The laws of Northern Ireland forbade him that right. He alleged that
he had been questioned, his home had been searched, and he feared criminal
prosecution. The court held that the laws proscribing the conduct were invalid
under the European Convention on Human Rights. Dudgeon v United Kingdom, 45
Eur. Ct. H. R. (1981) P 52. Authoritative in all countries that are members of
the Council of Europe (21 nations then, 45 nations now), the decision is at odds
with the premise in Bowers that the claim put forward was insubstantial in our
Western civilization.
In our own constitutional system the deficiencies in Bowers became even more
apparent in the years following its announcement. The 25 States with laws
prohibiting the relevant conduct referenced in the Bowers decision are reduced
now to 13, of which 4 enforce their laws only against homosexual conduct. In
those States where sodomy is still proscribed, whether for same-sex or
heterosexual conduct, there is a pattern of nonenforcement with respect to
consenting adults acting [***28] in private. The State of Texas admitted in
1994 that as of that date it had not prosecuted anyone under those
circumstances. State v. Morales, 869 S.W.2d 941, 943, 37 Tex. Sup. Ct. J. 390.
Two principal cases decided after Bowers cast its holding into even more
doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 120 L.
Ed. 2d 674, 112 S. Ct. 2791 (1992), the Court reaffirmed the substantive force
of the liberty protected by the Due Process Clause. The Casey decision again
confirmed that our laws and tradition afford constitutional [**523] protection
to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Id., at 851, 120 L Ed 2d 674, 112
S Ct 2791. In explaining the respect the Constitution demands for the autonomy
of the person in making these choices, we stated as follows:
"These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of the mystery
of human life. [***29] Beliefs about these matters could not define
the attributes of personhood were they formed under compulsion of the
State." Ibid.
[*2482] Persons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do. The decision in Bowers would deny
them this right.
The second post-Bowers case of principal relevance is Romer v. Evans, 517
U.S. 620, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). There the Court struck
down class-based legislation directed at homosexuals as a violation of the Equal
Protection Clause. Romer invalidated an amendment to Colorado's constitution
which named as a solitary class persons who were homosexuals, lesbians, or
bisexual either by "orientation, conduct, practices or relationships," id., at
624, 134 L Ed 2d 855, 116 S Ct 1620 (internal quotation marks omitted), and
deprived them of protection under state antidiscrimination laws. We concluded
that the provision was "born of animosity toward the class of persons affected"
and further that it had no rational relation to a legitimate governmental
purpose. Id., at 634, 134 L Ed 2d 855, 116 S Ct 1620..
As an alternative argument in this case, counsel for the petitioners and some
amici contend that Romer provides [***30] the basis for declaring the Texas
statute invalid under the Equal Protection Clause. That is a tenable argument,
but we conclude the instant case requires us to address whether Bowers itself
has continuing validity. Were we to hold the statute invalid under the Equal
Protection Clause some might question whether a prohibition would be valid if
drawn differently, say, to prohibit the conduct both between same-sex and
different-sex participants.
Equality of treatment and the due process right to demand respect for conduct
protected by the substantive guarantee of liberty are linked in important
respects, and a decision on the latter point advances both interests. If
protected conduct is made criminal and the law which does so remains unexamined
for its substantive validity, its stigma might remain even if it were not
enforceable as drawn for equal protection reasons. When homosexual conduct is
made criminal by the law of the State, that declaration in and of itself is an
invitation to subject homosexual persons to discrimination both in the public
and in the private spheres. The central holding of Bowers has been brought in
question by this case, and it should be addressed. [***31] Its continuance as
precedent demeans the lives of homosexual persons.
[**HR1C] [1C] The stigma this criminal statute [**524] imposes, moreover,
is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor
offense in the Texas legal system. Still, it remains a criminal offense with
all that imports for the dignity of the persons charged. The petitioners will
bear on their record the history of their criminal convictions. Just this Term
we rejected various challenges to state laws requiring the registration of sex
offenders. Smith v. Doe, 538 U.S. __, 155 L. Ed. 2d 164, 123 S. Ct. 1140 (2003)
; Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 155 L. Ed. 2d 98, 123
S. Ct. 1160 (2003). We are advised that if Texas convicted an adult for
private, consensual homosexual conduct under the statute here in question the
convicted person would come within the registration laws of at least four States
were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n 12
(citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc.
Ann., §§ 15:540-15:549 (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57
(Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This
underscores the consequential [***32] nature of the punishment and the
state-sponsored condemnation attendant to the criminal prohibition.
Furthermore, the Texas criminal conviction carries with it the other collateral
consequences always following a conviction, such as notations on job application
forms, to mention but one example.
[**HR2E] [2E] The foundations of Bowers have sustained serious erosion from
our recent decisions in Casey and Romer. When our precedent has been thus
weakened, criticism from other sources is of greater significance. [*2483] 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. See, e.g., C. Fried, Order and Law: Arguing the Reagan
Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350
(1992). The courts of five different States have declined to follow it in
interpreting provisions in their own state constitutions parallel to the Due
Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600,
80 S. W. 3d 332 (2002); Powell v. State , 270 Ga. 327, 510 S. E. 2d 18, 24
(1998); Gryczan v. State , 283 Mont. 433, 942 P.2d 112 (1997); [***33]
Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996); Commonwealth v. Wasson,
842 S.W.2d 487 (Ky. 1992).
[**HR1D] [1D] [**HR2F] [2F] To the extent Bowers relied on values we
share with a wider civilization, it should be noted that the reasoning and
holding in Bowers have been rejected elsewhere. The European Court of Human
Rights has followed not Bowers but its own decision in Dudgeon v United Kingdom.
See P. G. & J. H. v United Kingdom, App. No. 00044787/98, P 56 (Eur. Ct. H. R.,
Sept. 25, 2001); Modinos v Cyprus, 259 Eur. Ct. H. R. (1993); Norris v Ireland,
142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent
with an affirmation of the protected right of homosexual adults to engage in
intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici
Curiae 11-12. The right the petitioners seek in this case has been accepted as
an integral part of human freedom in many other countries. There has been no
showing that in this country the governmental interest in circumscribing
personal choice is somehow more legitimate or urgent.
[**525] [**HR2G] [2G] [**HR5] [5] The doctrine of stare decisis is
essential to the [***34] respect accorded to the judgments of the Court and to
the stability of the law. It is not, however, an inexorable command. Payne v.
Tennessee, 501 U.S. 808, 828, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991) ("Stare
decisis is not an inexorable command; rather, it 'is a principle of policy and
not a mechanical formula of adherence to the latest decision'") (quoting
Helvering v. Hallock, 309 U.S. 106, 119, 84 L. Ed. 604, 60 S. Ct. 444 (1940))).
In Casey we noted that when a Court is asked to overrule a precedent recognizing
a constitutional liberty interest, individual or societal reliance on the
existence of that liberty cautions with particular strength against reversing
course. 505 U.S., at 855-856, 120 L Ed 2d 674, 112 S Ct 2791; see also id., at
844, 120 L Ed 2d 674, 112 S Ct 2791 ("Liberty finds no refuge in a jurisprudence
of doubt"). The holding in Bowers, however, has not induced detrimental
reliance comparable to some instances where recognized individual rights are
involved. Indeed, there has been no individual or societal reliance on Bowers
of the sort that could counsel against overturning its holding once there are
compelling reasons to do so. Bowers itself causes uncertainty, for the
precedents before and after [***35] its issuance contradict its central
holding.
[**HR2H] [2H] [**HR3B] [3B] [**HR6] [6] The rationale of Bowers does
not withstand careful analysis. In his dissenting opinion in Bowers Justice
Stevens came to these conclusions:
"Our prior cases make two propositions abundantly clear. First,
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; neither history nor
tradition could save a law prohibiting miscegenation from
constitutional attack. Second, individual decisions by married
persons, concerning the intimacies of their physical relationship,
even when not intended to produce offspring, are a form of "liberty"
protected by the Due Process Clause of the Fourteenth Amendment.
Moreover, this protection extends to intimate choices by unmarried as
well as married persons." 478 US, at 216, 92 L Ed 2d 140, 106 S Ct
2841 (footnotes and citations omitted).
[*2484] Justice Stevens' analysis, in our view, should have been
controlling in Bowers and should control here.
[**HR2I] [2I] 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 [***36] be and now is overruled.
[**HR1E] [1E] [**HR7] [7] The present case does not involve minors. It
does not involve persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused. It does not involve
public conduct or prostitution. It does not involve whether the government must
give formal recognition to any relationship that homosexual persons seek to
enter. The case does involve two adults who, with full and mutual consent from
each other, engaged in sexual practices common to a homosexual lifestyle. The
petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making their private sexual
conduct a crime. Their right to liberty under the Due Process [**526] Clause
gives them the full right to engage in their conduct without intervention of the
government. "It is a promise of the Constitution that there is a realm of
personal liberty which the government may not enter." Casey, supra, at 847, 120
L Ed 2d 674, 112 S Ct 2791. The Texas statute furthers no legitimate state
interest which can justify its intrusion into the personal and private life of
the individual.
Had those who drew and ratified the Due Process Clauses [***37] of the Fifth
Amendment or the Fourteenth Amendment known the components of liberty in its
manifold possibilities, they might have been more specific. They did not
presume to have this insight. They knew times can blind us to certain truths
and later generations can see that laws once thought necessary and proper in
fact serve only to oppress. As the Constitution endures, persons in every
generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is
reversed, and the case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
CONCURBY: O'CONNOR
CONCUR: Justice O'Connor, concurring in the judgment.
The Court today overrules Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140,
106 S. Ct. 2841 (1986). I joined Bowers, and do not join the Court in
overruling it. Nevertheless, I agree with the Court that Texas' statute banning
same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003).
Rather than relying on the substantive component of the Fourteenth Amendment's
Due Process Clause, as the Court does, I base my conclusion on the Fourteenth
Amendment's [***38] Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a
direction that all persons similarly situated should be treated alike."
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313,
105 S. Ct. 3249 (1985); see also Plyler v. Doe, 457 U.S. 202, 216, 72 L. Ed. 2d
786, 102 S. Ct. 2382 (1982). Under our rational basis standard of review,
"legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest."
Cleburne v. Cleburne Living Center, supra, at 440, 87 L Ed 2d 313, 105 S Ct 3249
; see also Department of Agriculture v. Moreno, 413 U.S. 528, 534, 37 L. Ed. 2d
782, 93 S. Ct. 2821 (1973); Romer v. Evans, 517 U.S. 620, 632-633, 134 L. Ed. 2d
855, 116 S. Ct. 1620 (1996); Nordlinger v. Hahn, 505 U.S. 1, 11-12, 120 L. Ed.
2d 1, 112 S. Ct. 2326 (1992).
Laws such as economic or tax legislation that are scrutinized under rational
basis review normally pass constitutional muster, since "the Constitution
presumes that [*2485] even improvident decisions will eventually be rectified
by the democratic processes." Cleburne v. Cleburne Living Center, supra, at
440, 87 L Ed 2d 313, 105 S Ct 3249; see also Fitzgerald v Racing Assn. of
Central [***39] Iowa, ante, 156 L Ed 2d 97, 123 S Ct 2156; Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955). We
have consistently held, however, that some objectives, [**527] such as "a bare
. . . desire to harm a politically unpopular group," are not legitimate state
interests. Department of Agriculture v. Moreno, supra, at 534, 37 L Ed 2d 782,
93 S Ct 2821. See also Cleburne v. Cleburne Living Center, supra, at 446-447,
87 L Ed 2d 313, 105 S Ct 3249; Romer v. Evans, supra, at 632, 134 L Ed 2d 855,
116 S Ct 1620. When a law exhibits such a desire to harm a politically
unpopular group, we have applied a more searching form of rational basis review
to strike down such laws under the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law
unconstitutional under the Equal Protection Clause where, as here, the
challenged legislation inhibits personal relationships. In Department of
Agriculture v Moreno, for example, we held that a law preventing those
households containing an individual unrelated to any other member of the
household from receiving food stamps violated equal protection because the
purpose of the law was to "'discriminate against hippies.'" 413 US, at 534, 37 L
Ed 2d 782, 93 S Ct 2821. [***40] The asserted governmental interest in
preventing food stamp fraud was not deemed sufficient to satisfy rational basis
review. Id., at 535-538, 37 L Ed 2d 782, 93 S Ct 2821. In Eisenstadt v. Baird,
405 U.S. 438, 447-455, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972), we refused to
sanction a law that discriminated between married and unmarried persons by
prohibiting the distribution of contraceptives to single persons. Likewise, in
Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a
State to require a home for the mentally disabled to obtain a special use permit
when other residences--like fraternity houses and apartment buildings--did not
have to obtain such a permit. And in Romer v Evans, we disallowed a state
statute that "imposed a broad and undifferentiated disability on a single named
group"--specifically, homosexuals. 517 US, at 632, 134 L Ed 2d 855, 116 S Ct
1620. The dissent apparently agrees that if these cases have stare decisis
effect, Texas' sodomy law would not pass scrutiny under the Equal Protection
Clause, regardless of the type of rational basis review that we apply. See post
, at 156 L Ed 2d, at 540 (opinion of Scalia, J.).
The statute at issue here makes [***41] sodomy a crime only if a person
"engages in deviate sexual intercourse with another individual of the same sex."
Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners,
however, is not a crime in Texas. That is, Texas treats the same conduct
differently based solely on the participants. Those harmed by this law are
people who have a same-sex sexual orientation and thus are more likely to engage
in behavior prohibited by § 21.06.
The Texas statute makes homosexuals unequal in the eyes of the law by making
particular conduct--and only that conduct--subject to criminal sanction. It
appears that prosecutions under Texas' sodomy law are rare. See State v.
Morales, 869 S.W.2d 941, 943, 37 Tex. Sup. Ct. J. 390 (Tex. 1994) (noting in
1994 that § 21.06 "has not been, and in all probability will not be, enforced
against private consensual conduct between adults"). This case shows, however,
that prosecutions under § 21.06 do occur. And while the penalty imposed on
petitioners in this case was relatively minor, the consequences of conviction
[**528] are not. As the Court notes, see ante, at 156 L Ed 2d, at 523-524,
petitioners' convictions, if upheld, would disqualify them from or restrict
[***42] their ability to engage in a variety of professions, including
medicine, athletic training, and interior design. See, e.g., Tex. Occ. Code
Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251 (a)(1) (athletic
trainer); § 1053.252(2) [*2486] (interior designer). Indeed, were petitioners
to move to one of four States, their convictions would require them to register
as sex offenders to local law enforcement. See, e.g., Idaho Code § 18-8304
(Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code
Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002);
cf. ante, at 156 L Ed 2d, at 524.
And the effect of Texas' sodomy law is not just limited to the threat of
prosecution or consequence of conviction. Texas' sodomy law brands all
homosexuals as criminals, thereby making it more difficult for homosexuals to be
treated in the same manner as everyone else. Indeed, Texas itself has
previously acknowledged the collateral effects of the law, stipulating in a
prior challenge to this action that the law "legally sanctions discrimination
against [homosexuals] in a variety of ways unrelated to the criminal law,"
including in the areas of "employment, [***43] family issues, and housing."
State v. Morales, 826 S.W.2d 201, 203 (Tex. App. 1992).
Texas attempts to justify its law, and the effects of the law, by arguing
that the statute satisfies rational basis review because it furthers the
legitimate governmental interest of the promotion of morality. In Bowers, we
held that a state law criminalizing sodomy as applied to homosexual couples did
not violate substantive due process. We rejected the argument that no rational
basis existed to justify the law, pointing to the government's interest in
promoting morality. 478 US, at 196, 92 L Ed 2d 140, 106 S Ct 2841. The only
question in front of the Court in Bowers was whether the substantive component
of the Due Process Clause protected a right to engage in homosexual sodomy.
Id., at 188, n. 2, 92 L Ed 2d 140, 106 S Ct 2841. Bowers did not hold that
moral disapproval of a group is a rational basis under the Equal Protection
Clause to criminalize homosexual sodomy when heterosexual sodomy is not
punished.
This case raises a different issue than Bowers: whether, under the Equal
Protection Clause, moral disapproval is a legitimate state interest to justify
by itself a statute that bans homosexual [***44] sodomy, but not heterosexual
sodomy. It is not. Moral disapproval of this group, like a bare desire to harm
the group, is an interest that is insufficient to satisfy rational basis review
under the Equal Protection Clause. See, e.g., Department of Agriculture v.
Moreno, supra, at 534, 37 L Ed 2d 782, 93 S Ct 2821; Romer v. Evans, 517 U.S.,
at 634-635, 134 L Ed 2d 855, 116 S Ct 1620. Indeed, we have never held that
moral disapproval, without any other asserted state interest, is a sufficient
rationale under the Equal Protection Clause to justify a law that discriminates
among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest
under the Equal Protection Clause because legal classifications must not be
"drawn for the purpose of disadvantaging the group burdened [**529] by the
law." Id., at 633, 134 L Ed 2d 855, 116 S Ct 1620. Texas' invocation of moral
disapproval as a legitimate state interest proves nothing more than Texas'
desire to criminalize homosexual sodomy. But the Equal Protection Clause
prevents a State from creating "a classification of persons undertaken for its
own sake." Id., at 635, 134 L Ed 2d 855, 116 S Ct 1620. And because Texas so
rarely enforces its sodomy law as applied to [***45] private, consensual acts,
the law serves more as a statement of dislike and disapproval against
homosexuals than as a tool to stop criminal behavior. The Texas sodomy law
"raises the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected." Id., at 634, 134 L Ed 2d 855,
116 S Ct 1620.
Texas argues, however, that the sodomy law does not discriminate against
homosexual persons. Instead, the State maintains that the law discriminates
only against homosexual conduct. While it is true that the law applies only to
conduct, the conduct targeted by this law is conduct that is closely correlated
with being homosexual. Under such circumstances, Texas' [*2487] sodomy law is
targeted at more than conduct. It is instead directed toward gay persons as a
class. "After all, there can hardly be more palpable discrimination against a
class than making the conduct that defines the class criminal." Id., at 641,
134 L Ed 2d 855, 116 S Ct 1620 (Scalia, J., dissenting) (internal quotation
marks omitted). When a State makes homosexual conduct criminal, and not
"deviate sexual intercourse" committed by persons of different sexes, "that
declaration in and of itself is an invitation to subject [***46] homosexual
persons to discrimination both in the public and in the private spheres." Ante,
at 156 L Ed 2d, at 523.
Indeed, Texas law confirms that the sodomy statute is directed toward
homosexuals as a class. In Texas, calling a person a homosexual is slander per
se because the word "homosexual" "imputes the commission of a crime." Plumley
v. Landmark Chevrolet, Inc., 122 F.3d 308, 310 (CA5 1997) (applying Texas law);
see also Head v. Newton, 596 S.W.2d 209, 210 (Tex. App. 1980). The State has
admitted that because of the sodomy law, being homosexual carries the
presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203
("The statute brands lesbians and gay men as criminals and thereby legally
sanctions discrimination against them in a variety of ways unrelated to the
criminal law"). Texas' sodomy law therefore results in discrimination against
homosexuals as a class in an array of areas outside the criminal law. See ibid.
In Romer v Evans, we refused to sanction a law that singled out homosexuals "for
disfavored legal status." 517 US, at 633, 134 L Ed 2d 855, 116 S Ct 1620. The
same is true here. The [***47] Equal Protection Clause "'neither knows nor
tolerates classes among citizens.'" Id., at 623, 134 L Ed 2d 855, 116 S Ct 1620
(quoting Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138
(1896) (Harlan, J. dissenting)).
A State can of course assign certain consequences to a violation of its
criminal law. But the State cannot single out one identifiable class of citizens
for punishment that does not apply to everyone else, with moral disapproval as
the only asserted state interest for the law. The Texas sodomy statute subjects
homosexuals [**530] to "a lifelong penalty and stigma. A legislative
classification that threatens the creation of an underclass . . . cannot be
reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U.S., at 239,
72 L Ed 2d 786, 102 S Ct 2382 (Powell, J., concurring).
Whether a sodomy law that is neutral both in effect and application, see Yick
Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886), would violate
the substantive component of the Due Process Clause is an issue that need not be
decided today. I am confident, however, that so long as the Equal Protection
Clause requires a sodomy law to apply equally to the private consensual conduct
of homosexuals and heterosexuals [***48] alike, such a law would not long stand
in our democratic society. In the words of Justice Jackson:
"The framers of the Constitution knew, and we should not forget
today, that there is no more effective practical guaranty against
arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a minority be
imposed generally. Conversely, nothing opens the door to arbitrary
action so effectively as to allow those officials to pick and choose
only a few to whom they will apply legislation and thus to escape the
political retribution that might be visited upon them if larger
numbers were affected." Railway Express Agency, Inc. v. New York, 336
U.S. 106, 112-113, 93 L. Ed. 533, 69 S. Ct. 463 (1949) (concurring
opinion).
That this law as applied to private, consensual conduct is unconstitutional
under the Equal Protection Clause does not mean that other laws distinguishing
between heterosexuals and homosexuals would similarly fail under rational basis
review. Texas cannot assert any legitimate [*2488] state interest here, such
as national security or preserving the traditional institution of marriage.
Unlike the moral disapproval of same-sex relations-- [***49] the asserted
state interest in this case--other reasons exist to promote the institution of
marriage beyond mere moral disapproval of an excluded group.
A law branding one class of persons as criminal solely based on the State's
moral disapproval of that class and the conduct associated with that class runs
contrary to the values of the Constitution and the Equal Protection Clause,
under any standard of review. I therefore concur in the Court's judgment that
Texas' sodomy law banning "deviate sexual intercourse" between consenting adults
of the same sex, but not between consenting adults of different sexes, is
unconstitutional.
DISSENTBY: SCALIA; THOMAS
DISSENT: Justice Scalia, with whom the Chief Justice and Justice Thomas join,
dissenting.
"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 844, 120 L. Ed. 2d 674, 112 S. Ct. 2791
(1992). That was the Court's sententious response, barely more than a decade
ago, to those seeking to overrule Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147,
93 S. Ct. 705 (1973). The Court's response today, to those who have engaged in
a 17-year crusade to overrule Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d
140, 106 S. Ct. 2841 (1986), [***50] is very [**531] different. The need for
stability and certainty presents no barrier.
Most of the rest of today's opinion has no relevance to its actual
holding--that the Texas statute "furthers no legitimate state interest which can
justify" its application to petitioners under rational-basis review. Ante, at
156 L Ed 2d, at 526 (overruling Bowers to the extent it sustained Georgia's
anti-sodomy statute under the rational-basis test). Though there is discussion
of "fundamental propositions," ante, at 156 L Ed 2d, at 517, and "fundamental
decisions," ibid. nowhere does the Court's opinion declare that homosexual
sodomy is a "fundamental right" under the Due Process Clause; nor does it
subject the Texas law to the standard of review that would be appropriate
(strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while
overruling the outcome of Bowers, the Court leaves strangely untouched its
central legal conclusion: "Respondent would have us announce . . . a fundamental
right to engage in homosexual sodomy. This we are quite unwilling to do." 478
US, at 191, 92 L Ed 2d 140, 106 S Ct 2841. Instead the Court simply describes
petitioners' conduct as "an exercise of their liberty"--which it undoubtedly
[***51] is--and proceeds to apply an unheard-of form of rational-basis review
that will have far-reaching implications beyond this case. Ante, at 156 L Ed
2d, at 516.
I
I begin with the Court's surprising readiness to reconsider a decision
rendered a mere 17 years ago in Bowers v Hardwick. I do not myself believe in
rigid adherence to stare decisis in constitutional cases; but I do believe that
we should be consistent rather than manipulative in invoking the doctrine.
Today's opinions in support of reversal do not bother to distinguish--or indeed,
even bother to mention--the paean to stare decisis coauthored by three Members
of today's majority in Planned Parenthood v Casey. There, when stare decisis
meant preservation of judicially invented abortion rights, the widespread
criticism of Roe was strong reason to reaffirm it:
"Where, in the performance of its judicial duties, the Court
decides a case in such a way as to resolve the sort of intensely
divisive controversy reflected in Roe[,] . . . its decision has a
dimension that the resolution of the normal case does not carry. . .
. To overrule under fire in the absence of the most compelling reason
. [***52] . . would subvert the Court's legitimacy beyond any
serious [*2489] question." 505 U.S., at 866-867, 120 L Ed 2d 674,
112 S Ct 2791.
Today, however, the widespread opposition to Bowers, a decision resolving an
issue as "intensely divisive" as the issue in Roe, is offered as a reason in
favor of overruling it. See ante, at 156 L Ed 2d, at 524. Gone, too, is any
"enquiry" (of the sort conducted in Casey) into whether the decision sought to
be overruled has "proven 'unworkable,'" Casey, supra, at 855, 120 L Ed 2d 674,
112 S Ct 2791.
Today's approach to stare decisis invites us to overrule an erroneously
decided precedent (including an "intensely divisive" decision) if: (1) its
foundations have been "eroded" by subsequent decisions, ante, at 156 L Ed 2d, at
524; (2) it has been subject to "substantial and continuing" [**532]
criticism, ibid.; and (3) it has not induced "individual or societal reliance"
that counsels against overturning, ante, at 156 L Ed 2d, at 524. The problem is
that Roe itself--which today's majority surely has no disposition to
overrule--satisfies these conditions to at least the same degree as Bowers.
(1) A preliminary digressive observation with regard to the first factor: The
Court's claim that Planned Parenthood v. Casey, supra, [***53] "casts some
doubt" upon the holding in Bowers (or any other case, for that matter) does not
withstand analysis. Ante, at 156 L Ed 2d, at 521. As far as its holding is
concerned, Casey provided a less expansive right to abortion than did Roe, which
was already on the books when Bowers was decided. And if the Court is referring
not to the holding of Casey, but to the dictum of its famed
sweet-mystery-of-life passage, ante, at 156 L Ed 2d, at 523 ("'At the heart of
liberty is the right to define one's own concept of existence, of meaning, of
the universe, and of the mystery of human life'"): That "casts some doubt" upon
either the totality of our jurisprudence or else (presumably the right answer)
nothing at all. I have never heard of a law that attempted to restrict one's
"right to define" certain concepts; and if the passage calls into question the
government's power to regulate actions based on one's self-defined "concept of
existence, etc.," it is the passage that ate the rule of law.
I do not quarrel with the Court's claim that Romer v. Evans, 517 U.S. 620,
134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996), "eroded" the "foundations" of Bowers'
rational-basis holding. See Romer, supra, at 640-643, 134 L Ed 2d 855, 116 S Ct
1620 [***54] (Scalia, J., dissenting). But Roe and Casey have been equally
"eroded" by Washington v. Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 117
S. Ct. 2258 (1997), which held that only fundamental rights which are "'deeply
rooted in this Nation's history and tradition'" qualify for anything other than
rational basis scrutiny under the doctrine of "substantive due process." Roe and
Casey, of course, subjected the restriction of abortion to heightened scrutiny
without even attempting to establish that the freedom to abort was rooted in
this Nation's tradition.
(2) Bowers, the Court says, has been subject to "substantial and continuing
[criticism], disapproving of its reasoning in all respects, not just as to its
historical assumptions." Ante, at 156 L Ed 2d, at 524. Exactly what those
nonhistorical criticisms are, and whether the Court even agrees with them, are
left unsaid, although the Court does cite two books. See ibid. (citing C.
Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84
(1991); R. Posner, Sex and Reason 341-350 (1992)). n1 Of course, Roe too (and by
extension Casey) had been (and still is) subject to unrelenting criticism,
including [***55] criticism from the two commentators cited by the Court today.
See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner,
supra, at 337 ("[The Court's] opinion in Roe . . . fails to measure up to
professional expectations regarding [*2490] [**533] judicial opinions");
Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995)
(describing the opinion in Roe as an "embarrassing performance").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 This last-cited critic of Bowers actually writes: "[Bowers] is correct
nevertheless that the right to engage in homosexual acts is not deeply rooted in
America's history and tradition." Posner, Sex and Reason, at 343.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
(3) That leaves, to distinguish the rock-solid, unamendable disposition of
Roe from the readily overrulable Bowers, only the third factor. "There has
been," the Court says, "no individual or societal reliance on Bowers of the sort
that could counsel against overturning its holding . . . ." Ante, at 156 L Ed
2d, at 525. It seems to me that the "societal [***56] reliance" on the
principles confirmed in Bowers and discarded today has been overwhelming.
Countless judicial decisions and legislative enactments have relied on the
ancient proposition that a governing majority's belief that certain sexual
behavior is "immoral and unacceptable" constitutes a rational basis for
regulation. See, e.g., Williams v. Pryor, 240 F.3d 944, 949 (CA11 2001) (citing
Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground
that "[t]he crafting and safeguarding of public morality . . . indisputably is a
legitimate government interest under rational basis scrutiny"); Milner v. Apfel,
148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that
"legislatures are permitted to legislate with regard to morality . . . rather
than confined to preventing demonstrable harms"); Holmes v. California Army
National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding
the federal statute and regulations banning from military service those who
engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A.2d 43, 53
(1999) [***57] (relying on Bowers in holding that "a person has no
constitutional right to engage in sexual intercourse, at least outside of
marriage"); Sherman v. Henry, 928 S.W.2d 464, 469-473 (Tex. 1996) (relying on
Bowers in rejecting a claimed constitutional right to commit adultery). We
ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 569, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991),
that Indiana's public indecency statute furthered "a substantial government
interest in protecting order and morality," ibid., (plurality opinion); see also
id., at 575, 115 L Ed 2d 504, 111 S Ct 2456 (Scalia, J., concurring in
judgment). State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality, and obscenity are
likewise sustainable only in light of Bowers' validation of laws based on moral
choices. Every single one of these laws is called into question by today's
decision; the Court makes no effort to cabin the scope of its decision to
exclude them from its holding. See ante, at 156 L Ed 2d, at 521 (noting "an
emerging awareness that liberty gives substantial protection to adult persons in
deciding [***58] how to conduct their private lives in matters pertaining to
sex" (emphasis added)). The impossibility of distinguishing homosexuality from
other traditional "morals" offenses is precisely why Bowers rejected the
rational-basis challenge. "The law," it said, "is constantly based on notions
of morality, and if all laws representing essentially moral choices are to be
invalidated under the Due Process Clause, the courts will be very busy [**534]
indeed." 478 US, at 196, 92 L Ed 2d 140, 106 S Ct 2841. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 While the Court does not overrule Bowers' holding that homosexual sodomy
is not a "fundamental right," it is worth noting that the "societal reliance"
upon that aspect of the decision has been substantial as well. See 10 U.S.C. §
654(b)(1) [10 USCS § 654(b)(1)] ("A member of the armed forces shall be
separated from the armed forces . . . if . . . the member has engaged in . . . a
homosexual act or acts"); Marcum v. McWhorter, 308 F.3d 635, 640-642 (CA6 2002)
(relying on Bowers in rejecting a claimed fundamental right to commit adultery);
Mullins v. Oregon, 57 F.3d 789, 793-794 (CA9 1995) (relying on Bowers in
rejecting a grandparent's claimed "fundamental liberty interest" in the adoption
of her grandchildren); Doe v. Wigginton, 21 F.3d 733, 739-740 (CA6 1994)
(relying on Bowers in rejecting a prisoner's claimed "fundamental right" to
on-demand HIV testing); Schowengerdt v. United States, 944 F.2d 483, 490 (CA9
1991) (relying on Bowers in upholding a bisexual's discharge from the armed
services); Charles v. Baesler, 910 F.2d 1349, 1353 (CA6 1990) (relying on Bowers
in rejecting fire department captain's claimed "fundamental" interest in a
promotion); Henne v. Wright, 904 F.2d 1208, 1214-1215 (CA8 1990) (relying on
Bowers in rejecting a claim that state law restricting surnames that could be
given to children at birth implicates a "fundamental right"); Walls v.
Petersburg, 895 F.2d 188, 193 (CA4 1990) (relying on Bowers in rejecting
substantive-due-process challenge to a police department questionnaire that
asked prospective employees about homosexual activity); High Tech Gays v.
Defense Industrial Security Clearance Office, 895 F.2d 563, 570-571 (CA9 1988)
(relying on Bowers' holding that homosexual activity is not a fundamental right
in rejecting--on the basis of the rational-basis standard--an equal-protection
challenge to the Defense Department's policy of conducting expanded
investigations into backgrounds of gay and lesbian applicants for secret and
top-secret security clearance).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***59]
[*2491] What a massive disruption of the current social order, therefore,
the overruling of Bowers entails. Not so the overruling of Roe, which would
simply have restored the regime that existed for centuries before 1973, in which
the permissibility of and restrictions upon abortion were determined
legislatively State-by-State. Casey, however, chose to base its stare decisis
determination on a different "sort" of reliance. "People," it said, "have
organized intimate relationships and made choices that define their views of
themselves and their places in society, in reliance on the availability of
abortion in the event that contraception should fail." 505 US, at 856, 120 L Ed
2d 674, 112 S Ct 2791. This falsely assumes that the consequence of overruling
Roe would have been to make abortion unlawful. It would not; it would merely
have permitted the States to do so. Many States would unquestionably have
declined to prohibit abortion, and others would not have prohibited it within
six months (after which the most significant reliance interests would have
expired). Even for persons in States other than these, the choice would not
have been between abortion and childbirth, but between abortion [***60] nearby
and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should surprise no one, that
the Court has chosen today to revise the standards of stare decisis set forth in
Casey. It has thereby exposed Casey's extraordinary deference to precedent for
the result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis, the Court still must
establish that Bowers was wrongly decided and that the Texas statute, as applied
to petitioners, is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on
liberty. So do laws prohibiting prostitution, recreational [**535] use of
heroin, and, for that matter, working more than 60 hours per week in a bakery.
But there is no right to "liberty" under the Due Process Clause, though today's
opinion repeatedly makes that claim. Ante, at 156 L Ed 2d, at 518-519 ("The
liberty protected by the Constitution allows homosexual persons the right to
make this choice"); ante, at 156 L Ed 2d, at 523 ("'These matters . . . are
central to the liberty protected by the Fourteenth Amendment'"); ante, at 156 L
Ed 2d, at 525-526 ("Their right to liberty under the Due Process Clause gives
them the full [***61] right to engage in their conduct without intervention of
the government"). The Fourteenth Amendment expressly allows States to deprive
their citizens of "liberty," so long as "due process of law" is provided:
"No state shall . . . deprive any person of life, liberty, or
property, without due process of law." Amdt. 14 (emphasis added).
Our opinions applying the doctrine known as "substantive due process" hold
that the Due Process Clause prohibits States from infringing fundamental liberty
interests, unless the infringement is narrowly tailored to serve a compelling
state interest. Washington v. Glucksberg, 521 U.S., at 721, 138 L Ed 2d 772,
117 S Ct 2258. We have held repeatedly, in cases the Court today does [*2492]
not overrule, that only fundamental rights qualify for this so-called
"heightened scrutiny" protection--that is, rights which are "'deeply rooted in
this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U.S. 292,
303, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993) (fundamental liberty interests must
be "so rooted in the traditions and conscience of our people as to be ranked as
fundamental" (internal quotation marks and citations omitted)); United States v.
Salerno, 481 U.S. 739, 751, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987) [***62]
(same). See also Michael H. v. Gerald D., 491 U.S. 110, 122, 105 L. Ed. 2d 91,
109 S. Ct. 2333 (1989) ("We have insisted not merely that the interest
denominated as a 'liberty' be 'fundamental' . . . but also that it be an
interest traditionally protected by our society"); Moore v. East Cleveland, 431
U.S. 494, 503, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (plurality opinion);
Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (
Fourteenth Amendment protects "those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men" (emphasis added)). n3
All other liberty interests may be abridged or abrogated pursuant to a validly
enacted state law if that law is rationally related to a legitimate state
interest.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
N3 The Court is quite right that "history and tradition are the starting
point but not in all cases the ending point of the substantive due process
inquiry," ante, at 156 L Ed 2d, at 521. An asserted "fundamental liberty
interest" must not only be "deeply rooted in this Nation's history and
tradition," Washington v. Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 117
S. Ct. 2258 (1997), but it must also be "implicit in the concept of ordered
liberty," so that "neither liberty nor justice would exist if [it] were
sacrificed," ibid. Moreover, liberty interests unsupported by history and
tradition, though not deserving of "heightened scrutiny," are still protected
from state laws that are not rationally related to any legitimate state
interest. Id., at 722, 138 L Ed 2d 772, 117 S Ct 2258. As I proceed to
discuss, it is this latter principle that the Court applies in the present case.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***63]
Bowers held, first, that criminal prohibitions of homosexual sodomy are not
subject to heightened scrutiny because they do not implicate a [**536]
"fundamental right" under the Due Process Clause, 478 U.S., at 191-194, 92 L Ed
2d 140, 106 S Ct 2841. Noting that "[p]roscriptions against that conduct have
ancient roots," id., at 192, 92 L Ed 2d 140, 106 S Ct 2841, that "sodomy was a
criminal offense at common law and was forbidden by the laws of the original 13
States when they ratified the Bill of Rights," ibid., and that many States had
retained their bans on sodomy, id., at 193, 92 L Ed 2d 140, 106 S Ct 2841,
Bowers concluded that a right to engage in homosexual sodomy was not "'deeply
rooted in this Nation's history and tradition,'" id., at 192, 92 L Ed 2d 140,
106 S Ct 2841.
The Court today does not overrule this holding. Not once does it describe
homosexual sodomy as a "fundamental right" or a "fundamental liberty interest,"
nor does it subject the Texas statute to strict scrutiny. Instead, having
failed to establish that the right to homosexual sodomy is "'deeply rooted in
this Nation's history and tradition,'" the Court concludes that the application
of Texas's statute to petitioners' conduct fails the rational-basis test, and
overrules [***64] Bowers' holding to the contrary, see id., at 196, 92 L Ed 2d
140, 106 S Ct 2841. "The Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private life of the
individual." Ante, at 156 L Ed 2d, at 526.
I shall address that rational-basis holding presently. First, however, I
address some aspersions that the Court casts upon Bowers' conclusion that
homosexual sodomy is not a "fundamental right"--even though, as I have said, the
Court does not have the boldness to reverse that conclusion.
III
The Court's description of "the state of the law" at the time of Bowers only
confirms that Bowers was right. Ante, at 156 L Ed 2d, at 518. The Court points
to Griswold v. Connecticut, 381 U.S. 479, 481-482, 14 L. Ed. 2d 510, 85 S. Ct.
1678 (1965). [*2493] But that case expressly disclaimed any reliance on the
doctrine of "substantive due process," and grounded the so-called "right to
privacy" in penumbras of constitutional provisions other than the Due Process
Clause. Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029
(1972), likewise had nothing to do with "substantive due process"; it
invalidated a Massachusetts law prohibiting the distribution of contraceptives
to unmarried [***65] persons solely on the basis of the Equal Protection Clause
. Of course Eisenstadt contains well known dictum relating to the "right to
privacy," but this referred to the right recognized in Griswold--a right
penumbral to the specific guarantees in the Bill of Rights, and not a
"substantive due process" right.
Roe v Wade recognized that the right to abort an unborn child was a
"fundamental right" protected by the Due Process Clause. 410 US, at 155, 35 L
Ed 2d 147, 93 S Ct 705. The Roe Court, however, made no attempt to establish
that this right was "'deeply rooted in this Nation's history and tradition'";
instead, it based its conclusion that "the Fourteenth Amendment's concept of
personal liberty . . . is broad enough to encompass a woman's decision whether
or not to terminate her pregnancy" on its own normative judgment that
anti-abortion laws were undesirable. See id., at 153, 35 L Ed 2d 147, 93 S Ct
705. We have since rejected Roe's [**537] holding that regulations of
abortion must be narrowly tailored to serve a compelling state interest, see
Planned Parenthood v. Casey, 505 U.S., at 876, 120 L Ed 2d 674, 112 S Ct 2791
(joint opinion of O'Connor, Kennedy, and Souter, JJ.); id., at 951-953, 120 L Ed
2d 674, 112 S Ct 2791 (Rehnquist, [***66] C. J., concurring in judgment in
part and dissenting in part)--and thus, by logical implication, Roe's holding
that the right to abort an unborn child is a "fundamental right." See 505 U.S.,
at 843-912, 120 L Ed 2d 674, 112 S Ct 2791 (joint opinion of O'Connor, Kennedy,
and Souter, JJ.) (not once describing abortion as a "fundamental right" or a
"fundamental liberty interest").
After discussing the history of antisodomy laws, ante, at 156 L Ed 2d, at
519-521, the Court proclaims that, "it should be noted that there is no
longstanding history in this country of laws directed at homosexual conduct as a
distinct matter," ante, at 156 L Ed 2d, at 519. This observation in no way
casts into doubt the "definitive [historical] conclusion," id., on which Bowers
relied: that our Nation has a longstanding history of laws prohibiting sodomy in
general--regardless of whether it was performed by same-sex or opposite-sex
couples:
"It is obvious to us that neither of these formulations would
extend a fundamental right to homosexuals to engage in acts of
consensual sodomy. Proscriptions against that conduct have ancient
roots. Sodomy was a criminal offense at common law and was forbidden
by the laws of the original 13 [***67] States when they ratified the
Bill of Rights. In 1868, when the Fourteenth Amendment was ratified,
all but 5 of the 37 States in the Union had criminal sodomy laws. In
fact, until 1961, all 50 States outlawed sodomy, and today, 24 States
and the District of Columbia continue to provide criminal penalties
for sodomy performed in private and between consenting adults. Against
this background, to claim that a right to engage in such conduct is
'deeply rooted in this Nation's history and tradition' or 'implicit in
the concept of ordered liberty' is, at best, facetious." 478 U.S., at
192-194, 92 L Ed 2d 140, 106 S Ct 2841 (citations and footnotes
omitted; emphasis added).
It is (as Bowers recognized) entirely irrelevant whether the laws in our long
national tradition criminalizing homosexual sodomy were "directed at homosexual
conduct as a distinct matter." Ante, at 156 L Ed 2d, at 519. Whether homosexual
sodomy was prohibited by a law targeted at same-sex sexual relations or by a
more general law prohibiting both homosexual and heterosexual sodomy, the only
relevant point is that it was criminalized-- [*2494] which suffices to
establish that homosexual sodomy is not a right "deeply rooted in our Nation's
[***68] history and tradition." The Court today agrees that homosexual sodomy
was criminalized and thus does not dispute the facts on which Bowers actually
relied.
Next the Court makes the claim, again unsupported by any citations, that
"laws prohibiting sodomy do not seem to have been enforced against consenting
adults acting in private." Ante, at 156 L Ed 2d, at 519. The key qualifier here
is "acting in private"--since the Court admits that sodomy laws were enforced
against consenting adults (although the Court contends that prosecutions were
"infrequent," ante, at [**538] 156 L Ed 2d, at 520). I do not know what
"acting in private" means; surely consensual sodomy, like heterosexual
intercourse, is rarely performed on stage. If all the Court means by "acting in
private" is "on private premises, with the doors closed and windows covered," it
is entirely unsurprising that evidence of enforcement would be hard to come by.
(Imagine the circumstances that would enable a search warrant to be obtained for
a residence on the ground that there was probable cause to believe that
consensual sodomy was then and there occurring.) Surely that lack of evidence
would not sustain the proposition that consensual sodomy on private [***69]
premises with the doors closed and windows covered was regarded as a
"fundamental right," even though all other consensual sodomy was criminalized.
There are 203 prosecutions for consensual, adult homosexual sodomy reported in
the West Reporting system and official state reporters from the years 1880-1995.
See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999)
(hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4
executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663
(1983). Bowers' conclusion that homosexual sodomy is not a fundamental right
"deeply rooted in this Nation's history and tradition" is utterly unassailable.
Realizing that fact, the Court instead says: "We think that our laws and
traditions in the past half century are of most relevance here. These
references 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." Ante, at 156 L Ed 2d, at 521 (emphasis added). Apart from
the fact that such an "emerging awareness" does not establish a "fundamental
right," the statement is factually false. States [***70] continue to prosecute
all sorts of crimes by adults "in matters pertaining to sex": prostitution,
adult incest, adultery, obscenity, and child pornography. Sodomy laws, too,
have been enforced "in the past half century," in which there have been 134
reported cases involving prosecutions for consensual, adult, homosexual sodomy.
Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the
American Law Institute's 1955 recommendation not to criminalize "'consensual
sexual relations conducted in private,'" ante, at 156 L Ed 2d, at 521, the Court
ignores the fact that this recommendation was "a point of resistance in most of
the states that considered adopting the Model Penal Code." Gaylaw 159.
In any event, an "emerging awareness" is by definition not "deeply rooted in
this Nation's history and traditions," as we have said "fundamental right"
status requires. Constitutional entitlements do not spring into existence
because some States choose to lessen or eliminate criminal sanctions on certain
behavior. Much less do they spring into existence, as the Court seems to
believe, because foreign nations decriminalize conduct. The Bowers majority
opinion never relied on "values [***71] we share with a wider civilization,"
ante, at 156 L Ed 2d, at 524, but rather rejected the claimed right to sodomy on
the ground that such a right was not "'deeply rooted in this Nation's history
and tradition,'" 478 [**539] U.S., at 193-194, 92 L Ed 2d 140, 106 S Ct 2841
(emphasis added). Bowers' rational-basis holding is likewise devoid of any
reliance on the views of a " [*2495] wider civilization," see id., at 196, 92 L
Ed 2d 140, 106 S Ct 2841. The Court's discussion of these foreign views
(ignoring, of course, the many countries that have retained criminal
prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta,
however, since "this Court . . . should not impose foreign moods, fads, or
fashions on Americans." Foster v. Florida, 537 U.S. 990, 537 U.S. 990, 154 L.
Ed. 2d 359, 123 S. Ct. 470470 (2002) (Thomas, J., concurring in denial of
certiorari).
IV
I turn now to the ground on which the Court squarely rests its holding: the
contention that there is no rational basis for the law here under attack. This
proposition is so out of accord with our jurisprudence--indeed, with the
jurisprudence of any society we know--that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that
certain [***72] forms of sexual behavior are "immoral and unacceptable," Bowers
, supra, at 196, 92 L Ed 2d 140, 106 S Ct 2841 --the same interest furthered by
criminal laws against fornication, bigamy, adultery, adult incest, bestiality,
and obscenity. Bowers held that this was a legitimate state interest. The Court
today reaches the opposite conclusion. The Texas statute, it says, "furthers no
legitimate state interest which can justify its intrusion into the personal and
private life of the individual," ante, at 156 L Ed 2d, at 526 (emphasis addded).
The Court embraces instead Justice Stevens' declaration in his Bowers dissent,
that "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," ante, at 156 L Ed 2d, at 525. This effectively
decrees the end of all morals legislation. If, as the Court asserts, the
promotion of majoritarian sexual morality is not even a legitimate state
interest, none of the above-mentioned laws can survive rational-basis review.
V
Finally, I turn to petitioners' equal-protection challenge, which no Member
of the Court save Justice O'Connor, ante, at 156 L Ed 2d, at 526 (opinion
concurring [***73] in judgment), embraces: On its face § 21.06(a) applies
equally to all persons. Men and women, heterosexuals and homosexuals, are all
subject to its prohibition of deviate sexual intercourse with someone of the
same sex. To be sure, § 21.06 does distinguish between the sexes insofar as
concerns the partner with whom the sexual acts are performed: men can violate
the law only with other men, and women only with other women. But this cannot
itself be a denial of equal protection, since it is precisely the same
distinction regarding partner that is drawn in state laws prohibiting marriage
with someone of the same sex while permitting marriage with someone of the
opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated
in Loving v. Virginia, 388 U.S. 1, 8, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967),
similarly were applicable to whites and blacks alike, and only distinguished
between the races [**540] insofar as the partner was concerned. In Loving,
however, we correctly applied heightened scrutiny, rather than the usual
rational-basis review, because the Virginia statute was "designed to maintain
White Supremacy." Id., at 6, 11, 18 L Ed 2d 1010, 87 S Ct 1817. A racially
discriminatory [***74] purpose is always sufficient to subject a law to strict
scrutiny, even a facially neutral law that makes no mention of race. See
Washington v. Davis, 426 U.S. 229, 241-242, 48 L. Ed. 2d 597, 96 S. Ct. 2040
(1976). No purpose to discriminate against men or women as a class can be
gleaned from the Texas law, so rational-basis review applies. That review is
readily satisfied here by the same rational basis that satisfied it in Bowers
--society's belief that certain forms of sexual behavior are "immoral and
unacceptable," 478 US, at 196, 92 L Ed 2d 140, 106 S Ct 2841. This is the same
justification that supports many [*2496] other laws regulating sexual behavior
that make a distinction based upon the identity of the partner--for example,
laws against adultery, fornication, and adult incest, and laws refusing to
recognize homosexual marriage.
Justice O'Connor argues that the discrimination in this law which must be
justified is not its discrimination with regard to the sex of the partner but
its discrimination with regard to the sexual proclivity of the principal actor.
"While it is true that the law applies only to conduct, the conduct
targeted by this law is conduct that is closely correlated with being
homosexual. [***75] Under such circumstances, Texas' sodomy law is
targeted at more than conduct. It is instead directed toward gay
persons as a class." Ante, at 156 L Ed 2d, at 529.
Of course the same could be said of any law. A law against public nudity
targets "the conduct that is closely correlated with being a nudist," and hence
"is targeted at more than conduct"; it is "directed toward nudists as a class."
But be that as it may. Even if the Texas law does deny equal protection to
"homosexuals as a class," that denial still does not need to be justified by
anything more than a rational basis, which our cases show is satisfied by the
enforcement of traditional notions of sexual morality.
Justice O'Connor simply decrees application of "a more searching form of
rational basis review" to the Texas statute. Ante, at 156 L Ed 2d, at 527. The
cases she cites do not recognize such a standard, and reach their conclusions
only after finding, as required by conventional rational-basis analysis, that no
conceivable legitimate state interest supports the classification at issue. See
Romer v. Evans, 517 U.S., at 635, 134 L Ed 2d 855, 116 S Ct 1620; Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 448-450, 87 L. Ed. 2d 313, 105 S.
Ct. 3249 (1985); [***76] Department of Agriculture v. Moreno, 413 U.S. 528,
534-538, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973). Nor does Justice O'Connor
explain precisely what her "more searching form" of rational-basis review
consists of. It must at least mean, however, that laws exhibiting "'a . . .
desire to harm a politically unpopular group,'" ante, at 156 L Ed 2d, at 527,
are invalid even though there may be a conceivable rational basis to support
them.
This reasoning leaves on pretty [**541] shaky grounds state laws limiting
marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the
conclusory statement that "preserving the traditional institution of marriage"
is a legitimate state interest. Ante, at 156 L Ed 2d, at 530. But "preserving
the traditional institution of marriage" is just a kinder way of describing the
State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could
be recast in similarly euphemistic terms: "preserving the traditional sexual
mores of our society." In the jurisprudence Justice O'Connor has seemingly
created, judges can validate laws by characterizing them as "preserving the
traditions of society" (good); or invalidate them by characterizing them as
"expressing moral disapproval" [***77] (bad).
* * *
Today's opinion is the product of a Court, which is the product of a
law-profession culture, that has largely signed on to the so-called homosexual
agenda, by which I mean the agenda promoted by some homosexual activists
directed at eliminating the moral opprobrium that has traditionally attached to
homosexual conduct. I noted in an earlier opinion the fact that the American
Association of Law Schools (to which any reputable law school must seek to
belong) excludes from membership any school that refuses to ban from its
job-interview facilities a law firm (no matter how small) that does not wish to
hire as a prospective partner a person who openly engages in homosexual conduct.
See Romer, supra, at 653, 134 L Ed 2d 855, 116 S Ct 1620.
One of the most revealing statements in today's opinion is the Court's grim
warning [*2497] that the criminalization of homosexual conduct is "an
invitation to subject homosexual persons to discrimination both in the public
and in the private spheres." Ante, at 156 L Ed 2d, at 523. It is clear from
this that the Court has taken sides in the culture war, departing from its role
of assuring, as neutral observer, that the democratic rules of engagement are
observed. [***78] Many Americans do not want persons who openly engage in
homosexual conduct as partners in their business, as scoutmasters for their
children, as teachers in their children's schools, or as boarders in their home.
They view this as protecting themselves and their families from a lifestyle that
they believe to be immoral and destructive. The Court views it as
"discrimination" which it is the function of our judgments to deter. So imbued
is the Court with the law profession's anti-anti-homosexual culture, that it is
seemingly unaware that the attitudes of that culture are not obviously
"mainstream"; that in most States what the Court calls "discrimination" against
those who engage in homosexual acts is perfectly legal; that proposals to ban
such "discrimination" under Title VII have repeatedly been rejected by Congress,
see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess.
(1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that
in some cases such "discrimination" is mandated by federal statute, see 10
U.S.C. § 654(b)(1) [10 USCS § 654(b)(1)] (mandating discharge from the armed
forces of any service member who engages in or intends to [***79] engage in
homosexual acts); and that in some cases such "discrimination" is a
constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640, [**542]
147 L Ed 2d 554, 120 S Ct 2446 (2000).
Let me be clear that I have nothing against homosexuals, or any other group,
promoting their agenda through normal democratic means. Social perceptions of
sexual and other morality change over time, and every group has the right to
persuade its fellow citizens that its view of such matters is the best. That
homosexuals have achieved some success in that enterprise is attested to by the
fact that Texas is one of the few remaining States that criminalize private,
consensual homosexual acts. But persuading one's fellow citizens is one thing,
and imposing one's views in absence of democratic majority will is something
else. 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. What Texas has chosen to do is well within the range of traditional
democratic action, and its hand should not be stayed through the invention of a
brand-new "constitutional right" by a Court that is impatient of democratic
[***80] change. It is indeed true that "later generations can see that laws
once thought necessary and proper in fact serve only to oppress," ante, at 156 L
Ed 2d, at 526; and when that happens, later generations can repeal those laws.
But it is the premise of our system that those judgments are to be made by the
people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather
than to the courts is that the people, unlike judges, need not carry things to
their logical conclusion. The people may feel that their disapprobation of
homosexual conduct is strong enough to disallow homosexual marriage, but not
strong enough to criminalize private homosexual acts--and may legislate
accordingly. The Court today pretends that it possesses a similar freedom of
action, so that we need not fear judicial imposition of homosexual marriage, as
has recently occurred in Canada (in a decision that the Canadian Government has
chosen not to appeal). See Halpern v Toronto, 2003 WL 34950 (Ontario Ct. App.);
Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12,
2003, p A25. At the end of its opinion [***81] --after having laid waste the
foundations of our rational-basis jurisprudence--the Court says that the present
[*2498] case "does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter." Ante, at
156 L Ed 2d, at 525. Do not believe it. More illuminating than this bald,
unreasoned disclaimer is the progression of thought displayed by an earlier
passage in the Court's opinion, which notes the constitutional protections
afforded to "personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education," and then
declares that "persons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do." Ante, at 156 L Ed 2d, at 523
(emphasis added). Today's opinion dismantles the structure of constitutional
law that has permitted a distinction to be made between heterosexual and
homosexual unions, insofar as formal recognition in marriage is concerned. If
moral disapprobation of homosexual conduct is [**543] "no legitimate state
interest" for purposes of proscribing that conduct, ante, at 156 L Ed 2d, at 526
; and if, as the Court coos (casting aside all pretense of neutrality), "when
[***82] sexuality finds overt expression in intimate conduct with another
person, the conduct can be but one element in a personal bond that is more
enduring," ante, at 156 L Ed 2d, at 518; what justification could there possibly
be for denying the benefits of marriage to homosexual couples exercising "the
liberty protected by the Constitution," ibid.? Surely not the encouragement of
procreation, since the sterile and the elderly are allowed to marry. This case
"does not involve" the issue of homosexual marriage only if one entertains the
belief that principle and logic have nothing to do with the decisions of this
Court. Many will hope that, as the Court comfortingly assures us, this is so.
The matters appropriate for this Court's resolution are only three: Texas's
prohibition of sodomy neither infringes a "fundamental right" (which the Court
does not dispute), nor is unsupported by a rational relation to what the
Constitution considers a legitimate state interest, nor denies the equal
protection of the laws. I dissent.
Justice Thomas, dissenting.
I join Justice Scalia's dissenting opinion. I write separately to note that
the law before the Court today "is . . . uncommonly silly." Griswold v.
Connecticut, 381 U.S. 479, 527, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965)
(Stewart, J., dissenting). If I were a member of the Texas Legislature,
I would vote to repeal it. Punishing someone for expressing his sexual
preference through noncommercial consensual conduct with another adult
does not appear to be a worthy way to expend valuable law enforcement
resources.
Notwithstanding this, I recognize that as a member of this Court I am not
empowered to help petitioners and others similarly situated. My duty, rather,
is to "decide cases 'agreeably to the Constitution and laws of the United
States.'" Id., at 530, 14 L Ed 2d 510, 85 S Ct 1678. And, just like Justice
Stewart, I "can find [neither in the Bill of Rights nor any other part of the
Constitution a] general right of privacy," ibid., or as the Court terms it
today, the "liberty of the person both in its spatial and more transcendent
dimensions", ante, at 156 L Ed 2d, at 515.