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 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 18 (overruling 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 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 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 3.
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… . [T]o
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.
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
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 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
(“ ‘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 (1996), “eroded” the “foundations” of Bowers’ rational-basis
holding. See Romer, supra, at 640—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 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 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,
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 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
“[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, 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 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 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 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 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 6
(“The liberty protected by the Constitution 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 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. 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
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
(1987) (same). See also Michael H. v. Gerald D.,
491 U.S. 110, 122
(1989) (“[W]e 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
(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 rationally related to a legitimate state
interest.
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. 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 “ ‘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 “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. “The Texas statute
furthers no legitimate state interest which can justify its intrusion into the
personal and private 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 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 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 U.S., at 155. 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. 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 “fundamental 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 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
(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 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). 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: “[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 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 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 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 “ ‘deeply rooted in this Nation’s history and tradition,’ ” 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 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 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.
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 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, 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 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 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
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,
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 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 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 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.
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 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 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)
(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
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 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 acts–and 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 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 17. 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 “[p]ersons in a homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do.” Ante, at 13 (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 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 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.
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