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Cite as: 539 U. S. ____ (2003) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 02.102 _________________
JOHN GEDDES LAWRENCE AND TYRON GARNER, PETITIONERS v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
[June 26, 2003] 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 (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 (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 (1986), is very different. The need for stability and cer- tainty presents no barrier .

Most of the rest of today.s opinion has no relevance to its actual holding.that the Texas statute .furthers no le- gitimate state interest which can justify. its application to petitioners under rational-basis review. Ante, at 18 (over- ruling Bowers to the extent it sustained Georgia.s anti- sodomy statute under the rational-basis test). Though there is discussion of .fundamental proposition[s],. ante, at 4, 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 2 LAWRENCE v. TEXAS SCALIA, J., dissenting that would be appropriate (strict scrutiny) if homosexual sodomy were a .fundamental right.. Thus, while overrul- ing the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: .[R]espondent would have us announce . . . a fundamental right to en- gage in homosexual sodomy. This we are quite unwilling to do.. 478 U. S., at 191. Instead the Court simply de- scribes petitioners. conduct as .an exercise of their lib- erty..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 3 .

I I begin with the Court.s surprising readiness to recon- sider 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 Parent- hood v. Casey. There, when stare decisis meant preserva- tion 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 resolu- tion of the normal case does not carry. . . . [T]o over- rule under fire in the absence of the most compelling reason . . . would subvert the Court.s legitimacy be- yond any serious question.. 505 U. S., at 866.867 .

Today, however, the widespread opposition to Bowers, a decision resolving an issue as .intensely divisive. as the Cite as: 539 U. S. ____ (2003) 3 SCALIA, J., dissenting issue in Roe, is offered as a reason in favor of overruling it .

See ante, at 15.16. 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 .

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 15; (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 16. 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 Parent- hood v. Casey, supra, .casts some doubt. upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 10. As far as its holding is concerned, Casey provided a less expansive right to abor- tion 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 13 (. .At the heart of lib- erty 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 (1996), .eroded. the .foundations. of Bowers. rational-basis holding. See Romer, supra, at 640 .

4 LAWRENCE v. TEXAS SCALIA, J., dissenting 643 (SCALIA, J., dissenting).) But Roe and Casey have been equally .eroded. by Washington v. Glucksberg, 521 U. S. 702, 721 (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 restric- tion of abortion to heightened scrutiny without even at- tempting to establish that the freedom to abort was rooted in this Nation.s tradition .

(2) Bowers, the Court says, has been subject to .substan- tial and continuing [criticism], disapproving of its reason- ing in all respects, not just as to its historical assump- tions.. Ante, at 15. 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)).1 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 performanc[e].) .

(3) That leaves, to distinguish the rock-solid, unamend- able disposition of Roe from the readily overrulable Bow- ers, only the third factor. .[T]here has been,. the Court ..... .

1 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 .

Cite as: 539 U. S. ____ (2003) 5 SCALIA, J., dissenting says, .no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding . . . .. Ante, at 16. It seems to me that the .societal reli- ance. on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial deci- sions and legislative enactments have relied on the an- cient proposition that a governing majority.s belief that certain sexual behavior is .immoral and unacceptable .

constitutes a rational basis for regulation. See, e.g., Wil- liams 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 safeguard- ing of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny.); Mil- ner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that .[l]egislatures 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 en- gage 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 (1991), that Indiana.s public inde- cency statute furthered .a substantial government interest in protecting order and morality,. ibid., (plurality opinion); see also id., at 575 (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 6 LAWRENCE v. TEXAS SCALIA, J., dissenting 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 11 (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 distinguish- ing homosexuality from other traditional .morals. offenses is precisely why Bowers rejected the rational-basis chal- lenge. .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 U. S., at 196.2 ..... .

2 While the Court does not overrule Bowers. holding that homosexual sodomy is not a .fundamental right,. it is worth noting that the .socie- tal reliance. upon that aspect of the decision has been substantial as well. See 10 U. S. C. §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 funda- mental 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 interes[t]. 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 Cite as: 539 U. S. ____ (2003) 7 SCALIA, J., dissenting 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. .[P]eople,. 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 contracep- tion should fail.. 505 U. S., at 856. 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 prece- dent for the result-oriented expedient that it is .

..... .

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) .

8 LAWRENCE v. TEXAS SCALIA, J., dissenting 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 petition- ers, 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 mat- ter, 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 6 (.The liberty protected by the Constitu- tion allows homosexual persons the right to make this choice.); ante, at 13 (. . These matters . . . are central to the liberty protected by the Fourteenth Amendment. .); ante, at 17 (.Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct with- out intervention of the government.). The Fourteenth Amendment expressly allows States to deprive their citi- zens 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 .substan- tive due process. hold that the Due Process Clause pro- hibits States from infringing fundamental liberty inter- ests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. 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 (1993) (fundamental liberty interests must be .so rooted in the traditions and con- Cite as: 539 U. S. ____ (2003) 9 SCALIA, J., dissenting science of our people as to be ranked as fundamental .

(internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (.[W]e have insisted not merely that the interest denomi- nated 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 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects .those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is ra- tionally related to a legitimate state interest .

Bowers held, first, that criminal prohibitions of homo- sexual 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. Noting that .[p]roscriptions against that conduct have ancient roots,. id., at 192, that .[s]odomy 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., ..... .

3 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 11. An asserted .fundamental liberty inter- est. must not only be .deeply rooted in this Nation.s history and tradi- tion,. Washington v. Glucksberg, 521 U. S. 702, 721 (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. As I proceed to discuss, it is this latter principle that the Court applies in the present case .

10 LAWRENCE v. TEXAS SCALIA, J., dissenting at 193, Bowers concluded that a right to engage in homo- sexual sodomy was not . .deeply rooted in this Nation.s history and tradition,. . id., at 192 .

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a .fundamen- tal right. or a .fundamental liberty interest,. nor does it subject the Texas statute to strict scrutiny. Instead, hav- ing 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 .

.The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and pri- vate life of the individual.. Ante, at 18 .

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 5. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481.482 (1965). But that case expressly dis- claimed 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 (1972), likewise had nothing to do with .substantive due process.; it invalidated a Massachusetts law prohibiting the distri- bution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisen- stadt contains well known dictum relating to the .right to Cite as: 539 U. S. ____ (2003) 11 SCALIA, J., dissenting privacy,. but this referred to the right recognized in Gris- wold.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 un- born child was a .fundamental right. protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, how- ever, 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 .

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 (joint opinion of O.CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951.953 (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 (joint opinion of O.CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a .funda- mental right. or a .fundamental liberty interest.) .

After discussing the history of antisodomy laws, ante, at 7.10, 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 7. 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 12 LAWRENCE v. TEXAS SCALIA, J., dissenting 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 rati- fied 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 pro- vide criminal penalties for sodomy performed in pri- vate 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 (citations and footnotes omitted; emphasis added) .

It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing ho- mosexual sodomy were .directed at homosexual conduct as a distinct matter.. Ante, at 7. Whether homosexual sod- omy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homo- sexual 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 .[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.. Ante, at 8. 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 9) .

Cite as: 539 U. S. ____ (2003) 13 SCALIA, J., dissenting 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 homo- sexual 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: .[W]e 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 11 (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 14 LAWRENCE v. TEXAS SCALIA, J., dissenting the past half century,. in which there have been 134 re- ported 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 11, the Court ignores the fact that this recommendation was .a point of resistance in most of the states that con- sidered 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 tradi- tion[s],. as we have said .fundamental right. status re- quires. Constitutional entitlements do not spring into existence because some States choose to lessen or elimi- nate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bow- ers majority opinion never relied on .values we share with a wider civilization,. ante, at 16, 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 tradi- tion,. . 478 U. S., at 193.194 (emphasis added). Bowers .

rational-basis holding is likewise devoid of any reliance on the views of a .wider civilization,. see id., at 196. 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, n. (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 Cite as: 539 U. S. ____ (2003) 15 SCALIA, J., dissenting 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.the same interest furthered by criminal laws against fornica- tion, bigamy, adultery, adult incest, bestiality, and ob- scenity. 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 18 (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 17 .

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 1 (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 be- tween 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 protec- 16 LAWRENCE v. TEXAS SCALIA, J., dissenting tion, 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 antimiscegena- tion laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (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 cor- rectly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was .designed to maintain White Supremacy.. Id., at 6, 11. 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 (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 U. S., at 196. 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 Cite as: 539 U. S. ____ (2003) 17 SCALIA, J., dissenting than conduct. It is instead directed toward gay per- sons as a class.. Ante, at 5 .

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 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analy- sis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S .

432, 448.450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534.538 (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 2, are invalid even though there may be a conceivable rational basis to sup- port 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 7. 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 18 LAWRENCE v. TEXAS SCALIA, J., dissenting recast in similarly euphemistic terms: .preserving the traditional sexual mores of our society.. In the jurispru- dence 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 di- rected 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 homo- sexual conduct. See Romer, supra, at 653 .

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 homosex- ual persons to discrimination both in the public and in the private spheres.. Ante, at 14. 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 demo- cratic 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 Cite as: 539 U. S. ____ (2003) 19 SCALIA, J., dissenting as .discrimination. which it is the function of our judg- ments to deter. So imbued is the Court with the law profession.s anti-anti-homosexual culture, that it is seem- ingly 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) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosex- ual acts); and that in some cases such .discrimination. is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000) .

Let me be clear that I have nothing against homosexu- als, 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 crimi- nalize private, consensual homosexual acts. But per- suading one.s fellow citizens is one thing, and imposing one.s views in absence of democratic majority will is some- thing 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 .constitu- tional right. by a Court that is impatient of democratic 20 LAWRENCE v. TEXAS SCALIA, J., dissenting 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 18; 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 con- clusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homo- sexual marriage, but not strong enough to criminalize private homosexual acts.and may legislate accordingly .

The Court today pretends that it possesses a similar free- dom of action, so that that we need not fear judicial impo- sition 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 relation- ship that homosexual persons seek to enter.. Ante, at 17 .

Do not believe it. More illuminating than this bald, un- reasoned disclaimer is the progression of thought dis- played 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 .[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosex- ual persons do.. Ante, at 13 (emphasis added). Today.s opinion dismantles the structure of constitutional law that Cite as: 539 U. S. ____ (2003) 21 SCALIA, J., dissenting has permitted a distinction to be made between hetero- sexual and homosexual unions, insofar as formal recogni- tion in marriage is concerned. If moral disapprobation of homosexual conduct is .no legitimate state interest. for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), .[w]hen sexuality finds overt expression in intimate con- duct with another person, the conduct can be but one element in a personal bond that is more enduring,. ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising .[t]he 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 .

Agree or disagree with him, this man is a genius..

Personally, I agree with Scalia's dissent, and I also agree with Justice Thomas' 1-page dissent - now online - to the effect that while morally, gays should be able to live thier lives unmolested from the state, that does not make the Texas law violative of the federal Constitution.

WELL, SCALIA HAS IT RIGHT (AS ALWAYS)...A PRELUDE TO THE PUSH FOR FAGGOT AND DYKE MARRIAGES FOR THE MALADJUSTED. TALK ABOUT INCREASED HEALTHCARE COSTS; WAIT 'TIL YOUR MEDICAL INSURANCE COSTS ARE RAISED FOR THE AIDS-COUPLES WHEN THEY GET THE BENEFIT OF "MARRIAGE" AND "FAMILY MEDICAL COVERAGE".

Sad, but this is just the beginning of the pursuit of their agenda for medical coverage as 'families' under the guise of "homosexual marriages".

If only somehow someone could get a Constitutional Amendment on the ballot to recognize marriage as ONE MAN PLUS ONE WOMAN, I'm sure 2/3 of the states would ratify it.

If only the South had won the Civil War back in 1861, we could have saved States' Rights.....

A bit off topic, but how do you convert a pfd file to a .txt a .doc file to use external from the pdf?

Bump for evening reading.

I'm glad you posted this. I was just reading it.

Everyone should pay particular attention to the following part of Scalia's dissent. It is very frightening.

******************************************

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, 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. 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.

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 .

**************************************

From Griswold to Roe to Stenberg v. Carhart to THIS. Who says there's no such thing as a slippery slope?!?!

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in 6 LAWRENCE v. TEXAS SCALIA, J., dissenting light of Bowers. validation of laws based on moral choices .

So, Scalia thinks states can outlaw masturbation, too? Is it constititutional for a state to outlaw heterosexual missionary sex? Is it constitutional for a state to outlaw talking during sex-- like telling your partner she's good when she's frigid? What's the limit? I can't believe conservatives here at FR applaud such stupidity.

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 relation- ship that homosexual persons seek to enter. Do not believe it.

If Scalia is right, it will be about a year and a half until some US Dist. Ct. somewhere uses this opinion to justify its holding that a state's refusal to license gay marriage is both irrational and unconstitutional. Just wait.

See Thomas' dissent.

It is constitutional for the states to enact all manner of stupid and self-destructive laws, and most of them take full advantage of this.

What's the limit?

Well, it used to be called rational-basis review.

You might ought to ask yourself what is the logical limit to the new concept that "moral disapproval" is not a sufficient grounds for a state law? Are you ready to live in a world where every law justified on those grounds is ripped out of the statute books by continuous litigation?

BTW, there is a HUGE difference between saying a law is stupid and saying a law is unconstitutional. Just look at the case Griswold v. CT. The USSCT found a silly law unconstitutional there, and now look at the mess we're in.

Moral disapproval should never be the basis for laws. It's arbitrary and capricious-- tyranny of the majority. Does the legislative body have a compelling government interest? If that was the rule, we'd have 1/10th of the laws we have now.

Moral disapproval should never be the basis for laws.

Ok, what then should be the basis for our laws?

It's arbitrary and capricious-- tyranny of the majority. Does the legislative body have a compelling government interest?

Rarely have I heard so many legal catchphrases tossed around so carelessly.

Ok, what then should be the basis for our laws?

I've already said-- does the legislative body have a compelling government interest? If that test were applied, we'd all be better off.

Rarely have I heard so many legal catchphrases tossed around so carelessly.

Thanks for the non sequitur. How exactly does any point you're trying to make get made with that comment?

I can't believe conservatives here at FR applaud such stupidity.

I don't believe "conservatives" here, are applauding.

The Court (or any government agency) has no business in the homes/private property of ANYONE for purposes of invading their privacy.

In addition, NO PUBLIC INTEREST IS SERVED, AND THE PUBLIC SHOULD NOT BE REQUIRED TO BE SUBJECT TO THE FLAUNTING OF DYKES, FAGS, AND OTHER MAL-ADJUSTED SEX DEVIATES TRYING TO GAIN ACCESS TO THE ULTIMATE HOMO-AGENDA:"MARRIAGE" AND "FAMILY MEDICAL COVERAGE", ETC.

THEY BELONG IN A CLOSET, WHERE THEY CAME FROM, AND NOW THE COURT HAS ALLOWED THEM INTO PUBLIC VIEW, OFFENDING THE DECENT PEOPLE WITH IMPUNITY.

It's beyond belief that the flaunting of these sex deviates is being foisted into public debate for the furtherance of erosion of traditional family values/morals/decency.

We saw what Bull-dyke Reno did to the Injustice Department, and now we're seeing what Liberal judicial activism can do at the USSC. When the Lezbian-in-chief becomes President in 2008 (the Hildabeast), the next Civil War may soon follow.........

Moral disapproval should never be the basis for laws

Wake up over there. Does murder of your daughter constitute one of those "moral disapproval" laws you are whining about, which is called MURDER?

THE ENTIRE CONSTITUTION IS BASED ON MORAL PRINCIPLES !

I can't believe conservatives here at FR applaud such stupidity.

What conservatives support is permitting the stupid people in each state to make their own stupid laws. The framers of the Constitution supported this, too.

A bit off topic, but how do you convert a pfd file to a .txt a .doc file to use external from the pdf?

The toolbar on Adobe Acrobat 6.0 has a text tool (an image tool as well). You click on the text tool, then you can select the text in the pdf document. Just copy and paste what you have selected onto a word processing page.