[ Kennedy ]
[ OConnor ]
[ Scalia ]
[ Thomas ]
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 Courts sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U.S. 113 (1973). The Courts 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 certainty presents no barrier.
Most of the rest of todays opinion has no relevance to its actual holdingthat the Texas statute furthers no legitimate state interest which can justify its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgias 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 Courts 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: [R]espondent would have us announce a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. 478 U.S., at 191. Instead the Court simply describes petitioners conduct as an exercise of their libertywhich it undoubtedly isand proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3.
I begin with the Courts 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. Todays opinions in support of reversal do not bother to distinguishor indeed, even bother to mentionthe paean to stare decisis coauthored by three Members of todays 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:
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 1516. Gone, too, is any enquiry (of the sort conducted in Casey) into whether the decision sought to be overruled has proven unworkable,
Todays 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 itselfwhich todays majority surely has no disposition to overrulesatisfies these conditions to at least the same degree as Bowers.
(1) A preliminary digressive observation with regard to the first factor: The Courts 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 10. 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 13 (
I do not quarrel with the Courts claim that Romer v. Evans, 517 U.S. 620 (1996), eroded the foundations of Bowers rational-basis holding. See Romer, supra, at 640643 (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
(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 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 RevolutionA Firsthand Account 8184 (1991); R. Posner, Sex and Reason 341350 (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 Courts] 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, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. [T]here has been, the Court 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 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 majoritys 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 Alabamas 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 [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 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, 469473 (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 Indianas public indecency 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 light of Bowers validation of laws based on moral choices. Every single one of these laws is called into question by todays 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 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 U.S., at 196.2
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 contraception 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 Caseys extraordinary deference to precedent for the result-oriented expedient that it is.
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 todays opinion repeatedly makes that claim. Ante, at 6 (The liberty protected by the Constitution allows homosexual persons the right to make this choice); ante, at 13 (
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. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called heightened scrutiny protectionthat is, rights which are
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 191194. 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., at 193, Bowers concluded that a right to engage in homosexual sodomy was not
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
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 righteven though, as I have said, the Court does not have the boldness to reverse that conclusion.
The Courts 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, 481482 (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 (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 Griswolda 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 U.S., at 155. The Roe Court, however, made no attempt to establish that this right was
After discussing the history of antisodomy laws, ante, at 710, 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 generalregardless 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 Nations history and tradition or implicit in the concept of ordered liberty is, at best, facetious. 478 U.S., at 192194 (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 7. 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 criminalizedwhich suffices to establish that homosexual sodomy is not a right deeply rooted in our Nations 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 privatesince the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were infrequent, ante, at 9). 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 18801995. 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 Nations 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 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 Institutes 1955 recommendation not to criminalize
In any event, an emerging awareness is by definition not deeply rooted in this Nations history and tradition[s], 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 16, but rather rejected the claimed right to sodomy on the ground that such a right was not
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 jurisprudenceindeed, with the jurisprudence of any society we knowthat 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 196the 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 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.
Finally, I turn to petitioners equal-protection challenge, which no Member of the Court save Justice OConnor, 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 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 (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. 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, 241242 (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 Bowerssocietys 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 OConnor 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 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 OConnor 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 analysis, 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, 448450 (1985); Department of Agriculture v. Moreno, 413 U.S. 528, 534538 (1973). Nor does Justice OConnor explain precisely what her more searching form of rational-basis review consists of. It must at least mean, however, that laws exhibiting
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice OConnor 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 States moral disapproval of same-sex couples. Texass interest in §21.06 could be recast in similarly euphemistic terms: preserving the traditional sexual mores of our society. In the jurisprudence Justice OConnor 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).
* * *
Todays 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.
One of the most revealing statements in todays opinion is the Courts 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 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 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 childrens 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 professions 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) (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 (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 ones fellow citizens is one thing, and imposing ones views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual actsor, for that matter, display any moral disapprobation of themthan 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 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 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 actsand may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that 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 Couples Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinionafter having laid waste the foundations of our rational-basis jurisprudencethe 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 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Courts 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 heterosexual persons do. Ante, at 13 (emphasis added). Todays 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 18; and if, as the Court coos (casting aside all pretense of neutrality), [w]hen 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 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 Courts resolution are only three: Texass 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.
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 Americas history and tradition. Posner, Sex and Reason, at 343.
2. 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) (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, 640642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F.3d 789, 793794 (CA9 1995) (relying on Bowers in rejecting a grandparents claimed fundamental liberty interes[t] in the adoption of her grandchildren); Doe v. Wigginton, 21 F.3d 733, 739740 (CA6 1994) (relying on Bowers in rejecting a prisoners 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 bisexuals discharge from the armed services); Charles v. Baesler, 910 F.2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captains claimed fundamental interest in a promotion); Henne v. Wright, 904 F.2d 1208, 12141215 (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, 570571 (CA9 1988) (relying on Bowers holding that homosexual activity is not a fundamental right in rejectingon the basis of the rational-basis standardan equal-protection challenge to the Defense Departments policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearance).
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 interest must not only be deeply rooted in this Nations history and tradition, 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.