Text of Justice Scalia's Dissenting Opinion [to paraphrase, "epitaph for Christian civilization"]

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

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 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

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–

1This 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.

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

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

2While 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 fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793– 794 (CA9 1995) (relying on Bowers in rejecting a grandparent’s claimed "fundamental liberty 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

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).

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-

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 interest" 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.

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.

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

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

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).

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

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).

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 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.

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-

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

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

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

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

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

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.

I join JUSTICE SCALIA’s dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a mem-ber of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valu-able law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases ‘agreeably to the Constitution and laws of the United States.’" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.

"The people of Texas enacted the Law, whatever makes you think that this 97% would have lifted a finger to change a thing?"

It got somewhat close to be repealed in 1994 actually.
Openly gay legislator Glen Maxey spearheaded it.
Repeal failed because most Texans supported the law as it stood. That's the democratic process. As social mores have changed, the number of states outlawing sodomy have dropped from close to 50 down to around a dozen or so.

"Let's say that overturning Roe v. Wade could only be done by the California legislature, what would be the chances?"

Luis, grab a clue. Only the supreme court can overturn a Supreme Court decision. Even if Cali passed a law outlawing abortion 149 to 1, Supreme Court would overturn it.
Who can protect the unborn in such a case?
Who can represent the will of the people to protect the unborn in such a case of judicial tyranny?

"Citizens must have a venue where they can go and seek redress from their State government."

Redress venue of first resort: its the BALLOT BOX. Now I ask you: This Supreme Court ruling was WRONGLY DECIDED. Where do we go to seek *OUR* redress from the tyranny of the Judicial branch???

"Allowing sodomy for 97 percent of the population, while barring it for 3 percent cannot possibly be defended as a law designed to prevent or deter the immorality of sodomy. It was a law entirely constructed to stigmatize gay people. It had no other conceivable purpose. And when "morality" is simply a rubric under which to persecute a minority, then we don't really have the imposition of morality at all. We have the imposition of a prejudice." --- Andrew Sullivan

"If I said that at work, I'd get fired..." Work is not the place for you to do that, but regardless, I've said something akin to that, and I wasn't fired.

Ah, you dont work at a Fortune 50 company do you?

FR is not the public square or the whole culture. the former counter-culture wants to become the dominant culture, and knows far better than conservative movement how to impose its will. I noted cases where the power is a monpoly power if not yet a Govt law - eg the law school recruiting. if this happened to Liberals they'd scream "McCarthyism" and repression ... and they'd have a point.

Many things are imposed, if not by state or federal law (yet) to enforce the PC morality - a "diversity training" program here, a required college 'experience' there. It adds up to social conformity to the new imposed moral order. Check out the part about how they tried to politically indotrinate education students: http://www.boundless.org/2000/departments/campus_culture/a0000264.html

Ahh, yes. Polycarp has campaigned for YEARS that all adulterers, fornicators, and abortion-providers should be SHOT at STADIUMS as paid sporting events following convictions.

Ahhh,no. Polycarp has done no such thing.

If you're going to criticize him at least be honest about it.

Further, he has campaigned for removal of all locks from all doors so that he and his fellow travelers could simply walk into private residences and observe sexual activity.

Polycarp hasn't done this either...at least not that I know of. What a mean thing to say about him. You need to repent.

Get a life, Jorge. Take your meds and work at DU.

Take a reading class ninenut.

Then maybe you'll be able to articulate a halfway coherent response instead of this discombobulated nonsense.

"The fact is most sodomy laws have been removed from the books or struck down by the courts in most states FOR YEARS now."

You've completely missed the constitutional point. Or rather, you're making the point for the side you oppose.

No.. you've completely missed my point. I wasn't arguing any constitutional point one way or the other.

Rather I was addressing the naivity of those who claim this is some sort of watershed decision regarding morality in American when in fact most states have already repealed sodomy laws.

"...your the guy who is claiming that 100 years ago there were no sodomy law..." Put down the booze and read more carefully, I never said that.

Obviously, we have a failure to communicate ... here is your original Clintonesque emanation:

There was not a single law outlawing same-sex sodomy in this country 100 years ago. - Post 204.

Numerous posts since have explained to you the falsehood of the above statement, given the numerous sodomy laws on the books at the time that covered same-sex sodomy. Same-sex sodomy in the 1800s got you jail time if caught. Then you falsely say that what you were saying was:

"What I am saying is that there were no same-sex exclusive sodomy laws in the United States until the 1970's."

Okay, that's different kettle of fish. If you cant catch the distinction between the two, you really are lacking in logical faculties. Try rereading the responses to your posts and get up to speed on why they are different. and the insults are as pointless as your request: "Now, prove me wrong or go finish whatever it is that you're drinking." I've already refuted post 204 and other have many times. your latter, different statement, (yawn) what's your point? You are hankering to lock up heterosexual sodomites too?

When Dr laura said it, she lost a TV contract.

Wake and smell the coffee, Luis. The right to say homosexuality is wrong is a disappearing right in our culture. it is very close to making into law (eg sexual harrassment). Look north to canada where it already is enshrined in law.

I was and am still angry over the way gay activists intimidated advertisers to keep Dr. Laura off TV...however these things happen in America.

And I don't see how not being able to bust down bedrooms doors and arrest consenting adults for sodomy means nobody is allowed to freely and openly express their personal moral beliefs.

"Rather I was addressing the naivity of those who claim this is some sort of watershed decision regarding morality in American when in fact most states have already repealed sodomy laws."

Jorge, true that Supreme Courts dont influence as much as reflect the moral state of the country.

But this is a watershed ruling in Judicial over-reach. The practical implications will go FAR BEYOND enforcement or (already barely enforced) sodomy laws. We just dont know what's in the Pandora's box yet.

Without Griswold, which seemed innocuous, there was no Roe.

"I wasn't arguing any constitutional point one way or the other."

Why are you on this thread then? I find it curious that 380 posts in - NOT A SINGLE POST HAS DEFINITIVELY DEFENDED THE INDEFENSIBLE: THE MAJORITY RULING.

And yet, we have many posts complaining about the 'complainers'.

"I was and am still angry over the way gay activists intimidated advertisers to keep Dr. Laura off TV...however these things happen in America."

And these things happen too ... the squeeze is on against traditional morality:

http://www.antipas.org/news/news_2000/world_2000/gay_plunge.html

http://www.city-journal.org/html/7_4_a3.html

The university would be in chaos," warned Ivan Marcus, a Yale history professor, "if it bent over backward to accommodate everyone's sensitivities." The New Yorker 's David Denby quite agrees: colleges cannot "continue to humor every group's sensitivities." Are they referring, perhaps, to the antics of Yale's Bisexual/Gay/Lesbian/Trans-gender Cooperative? Making a case for defunding its African-American cultural studies house or its Latina/Latino cultural center? No, this September's crackdown on diversity came on the heads of five Orthodox Jewish students who had asked to be excused from Yale's requirement that they live in coed dorms--which they said offended their religious beliefs. As everyone by now knows, the administration denied the request. Diversity, it seems, ends where traditional morality begins.

And I don't see how not being able to bust down bedroom doors and arrest consenting adults for sodomy means nobody is allowed to freely and openly express their personal moral beliefs.

Umm...you don’t see the police busting down doors to find consensual incest, bestiality or consensual pedophilia either, do you?

I would venture to say that Our Maker is every bit as angry at heterosexual sodomites as He is at homosexual ones.

Perhaps. It's a mortal sin either way, which you already know, as a Catholic. But there is a difference between natural sins of the flesh and the extremely wacked-out perversion of homosexuality. this is clear in the OT, the NT and in the laws of the Church. The great Pope Leo XIII even said, "Homosexuality is a sin so vile that even the angels of hell are repulsed by it."

that's a fairly powerful statement, that I have not seen made about anything else. Anyway, please excuse any possible typos, I can't see if there any because I am having a migraine and can hardly see the screen.

Dominus vobiscum

Because that was not a law, it was an INS procedure.

Administrative law. So now you've abandoned Elian in your defense of sodomy and as an apologist for judicial legislation.

Dr. Pilon tells NewsMax.com that Attorney General Janet Reno is "irresponsibly and astonishingly ignoring the clear requirements of United States immigration laws that provide that any 'person' shall be entitled to an full-fledged, evidentiary asylum hearing upon immigrating to the United States from Cuba."

http://www.newsmax.com/articles/?a=2000/4/17/103543

"So now you've abandoned Elian..."

You are such an a**hole. I have done no such thing.

These are two distinct and separate causes, but there is one overall theme...freedom from oppression.

The people of Texas enacted a law that was unjust, they used their State government to legislatively support prejudice. They voted themselves absolved from the crime of sodomy, and persecuted the minority of its citizens for something they themselves could get away with scott free.

The hypocrite here is you, who while crying about the evils of sodomy, you turn a blind eye at the fact that 97% of the citizens of Texas could engage in it with impunity, placing themselves outside the laws of God and man, all the while calling the 3% who were criminalized for the very same act they regularly committ, perverts and degenerates.

Nice job Roscoe, promoting degeneracy in the majority of the people.

"Numerous posts since have explained to you the falsehood of the above statement."

Then you should have had no problem whatsoever posting a law to prove me wrong...you did not.

"Same-sex sodomy in the 1800s got you jail time."

ALL sodomy got you jail time then, not exclusively same-sex sodomy.

You knew what I meant, they knew what I meant.

Stand there exposed as a liar.

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