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JOHN GEDDES LAWRENCE and TYRON
GARNER v. SUPREME COURT OF THE UNITED
STATES 539 Decided: 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,
belief, expression, and certain intimate conduct. The instant case involves liberty of the
person both in its spatial and more transcendent dimensions. I 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 man, Tyron Garner, engaging in a
sexual act. 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 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), 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, 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 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 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. 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 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 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
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. 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 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 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). 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 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 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 homosexual persons the right to make this choice. 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
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 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 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 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 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 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," 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. 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. Picado, 349 Ark.
600, 80 S. W. 3d 332 (2002); 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. 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 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). 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 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). 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 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. Other
States soon followed. Brief for Cato
Institute as Amicus Curiae 15-16. In Bowers the Court
referred to the fact that before 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
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 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
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. Beliefs about these matters could not
define the attributes of personhood were they formed under compulsion of the
State." Ibid. 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 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. Its continuance as precedent demeans the
lives of homosexual persons. The stigma this criminal statute 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. __, 538 U.S. 84, 155
L. Ed. 2d 164, 123 S. Ct. 1140 (2003); Connecticut Dept. of Public
Safety v. Doe, 538 U.S. 1, 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 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. 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. 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); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn.
App. 1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992). 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. The doctrine of stare decisis
is essential to the 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 its issuance contradict its
central holding. 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). Justice Stevens' analysis, in our
view, should have been controlling in Bowers and should control here. Bowers was not correct when it was
decided, and it is not correct today.
It ought not to remain binding precedent. Bowers v. Hardwick should be and now is
overruled. The 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 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 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. 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 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 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 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, 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. 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
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
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 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)
(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,
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 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 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
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' 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 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 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 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 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 state interest
here, such as national security or preserving the traditional institution of
marriage. Unlike the moral disapproval of same-sex relations-- 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. 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), is very 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 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 . . . would
subvert the Court's legitimacy beyond any serious 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" 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, "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 (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 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 judicial
opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev.
1421, 1434 (1995) (describing the opinion in Roe as an
"embarrassing performance"). 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. (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 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)
(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 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 indeed." 478 US, at 196,
92 L Ed 2d 140, 106 S Ct 2841. n2 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). 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 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 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
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 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) (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. 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. Bowers held, first, that criminal
prohibitions of homosexual sodomy are not subject to heightened scrutiny
because they do not implicate a "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 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). 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
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 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, 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 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-- which suffices to establish that
homosexual sodomy is not a right "deeply rooted in our Nation's 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 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 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 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 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 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
"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 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 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 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 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 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. 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); 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
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" (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 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. 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 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, 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 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 --after having
laid waste the foundations of our rational-basis jurisprudence--the Court
says that the present 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 "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
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. |
|
