SUPREME COURT OF THE UNITED STATES

LAWRENCE et al. v. TEXAS

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

No. 02102. Argued March 26, 2003Decided June 26, 2003

Responding to a reported weapons disturbance in a private residence, Houston police

entered petitioner Lawrences apartment and saw him and another adult man, petitioner
Garner, engaging in a private, consensual sexual act. Petitioners were arrested and
convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons
of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of
Appeals held, inter alia, that the statute was not unconstitutional under the Due Process
Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S.
186, controlling on that point.
Held: The Texas statute making it a crime for two persons of the same sex to engage in
certain intimate sexual conduct violates the Due Process Clause. Pp. 318.
(a) Resolution of this case depends on whether petitioners were free as adults to engage
in private conduct in the exercise of their liberty under the Due Process Clause. For this
inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Courts
initial substantive statementThe issue presented is whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy , 478 U.S., at 190
discloses the Courts failure to appreciate the extent of the liberty at stake. To say that the
issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim
the individual put forward, just as it would demean a married couple were it said that
marriage is just about the right to have sexual intercourse. Although the laws involved in
Bowers and here purport to do not more than prohibit a particular sexual act, their penalties
and purposes have more far-reaching consequences, touching upon the most private
human conduct, sexual behavior, and in the most private of places, the home. They seek to
control a personal relationship that, whether or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being punished as criminals. The liberty
protected by the Constitution allows homosexual persons the right to choose to enter upon
relationships in the confines of their homes and their own private lives and still retain their
dignity as free persons. Pp. 36.
(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that
proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted,
however, that there is no longstanding history in this country of laws directed at homosexual
conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals
as such but instead sought to prohibit nonprocreative sexual activity more generally, whether
between men and women or men and men. Moreover, early sodomy laws seem not to have
been enforced against consenting adults acting in private. Instead, sodomy prosecutions
often involved predatory acts against those who could not or did not consent: relations
between men and minor girls or boys, between adults involving force, between adults
implicating disparity in status, or between men and animals. The longstanding criminal
prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent

with a general condemnation of nonprocreative sex as it is with an established tradition of

prosecuting acts because of their homosexual character. Far from possessing ancient
roots, ibid., American laws targeting same-sex couples did not develop until the last third of
the 20th century. Even now, only nine States have singled out same-sex relations for
criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex
than the majority opinion and the concurring opinion by Chief Justice Burger there indicated.
They are not without doubt and, at the very least, are overstated. The Bowers Court was, of
course, making the broader point that for centuries there have been powerful voices to
condemn homosexual conduct as immoral, but this Courts obligation is to define the liberty
of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 850. The Nations laws and traditions in the past half century are most
relevant here. They 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. See
County of Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 612.
(c) Bowers deficiencies became even more apparent in the years following its
announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are
reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those
States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual
conduct), there is a pattern of nonenforcement with respect to consenting adults acting in
private. Casey, supra, at 851which confirmed that the Due Process Clause protects
personal decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and educationand Romer v. Evans, 517 U.S. 620, 624which struck down
class-based legislation directed at homosexualscast Bowers holding into even more doubt.
The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense
is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity
of the persons charged, including notation of convictions on their records and on job
application forms, and registration as sex offenders under state law. Where a cases
foundations have sustained serious erosion, criticism from other sources is of greater
significance. In the United States, criticism of Bowers has been substantial and continuing,
disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to
the extent Bowers relied on values shared with a wider civilization, the cases reasoning and
holding have been rejected by the European Court of Human Rights, and that other nations
have taken action consistent with an affirmation of the protected right of homosexual adults
to engage in intimate, consensual conduct. There has been no showing that in this country
the governmental interest in circumscribing personal choice is somehow more legitimate or
urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U.S. 808,
828. Bowers holding has not induced detrimental reliance of the sort that could counsel
against overturning it once there are compelling reasons to do so. Casey, supra, at 855
856. Bowers causes uncertainty, for the precedents before and after it contradict its central
holding. Pp. 1217.
(d) Bowers rationale does not withstand careful analysis. In his dissenting opinion in
Bowers Justice Stevens concluded that (1) the fact a States governing majority has
traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a
law prohibiting the practice, and (2) individual decisions concerning the intimacies of
physical relationships, even when not intended to produce offspring, are a form of liberty
protected by due process. That analysis should have controlled Bowers, and it controls here.
Bowers was not correct when it was decided, is not correct today, and is hereby overruled.
This case does not involve minors, persons who might be injured or coerced, those who
might not easily refuse consent, or public conduct or prostitution. It does involve two adults
who, with full and mutual consent, engaged in sexual practices common to a homosexual
lifestyle. Petitioners right to liberty under the Due Process Clause gives them the full right to
engage in private conduct without government intervention. Casey, supra, at 847. The Texas

statute furthers no legitimate state interest which can justify its intrusion into the individuals
personal and private life. Pp. 1718.
41 S. W. 3d 349, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and
Breyer, JJ., joined. OConnor, J., filed an opinion concurring in the judgment. Scalia, J., filed
a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a
dissenting opinion.
Justice Kennedy delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or
other private places. In our tradition the State is not omnipresent in the home. And there are
other spheres of our lives and existence, outside the home, where the State should not be a
dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an
autonomy of self that includes freedom of thought, belief, expression, and certain intimate
conduct. The instant case involves liberty of the person both in its spatial and more
transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two
persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were dispatched to a
private residence in response to a reported weapons disturbance. They entered an
apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the
police to enter does not seem to have been questioned. The officers observed Lawrence
and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested,
held in custody over night, and charged and convicted before a Justice of the Peace.
The complaints described their crime as "deviate sexual intercourse, namely anal sex,
with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable
state law is Tex. Penal Code Ann. 21.06(a) (2003). It provides: "A person commits an
offense if he engages in deviate sexual intercourse with another individual of the same sex."
The statute defines "[d]eviate sexual intercourse" as follows:
"(A) any contact between any part of the genitals of one person and the mouth or anus of
another person; or
"(B) the penetration of the genitals or the anus of another person with an object." 21.01(1).
The petitioners exercised their right to a trial de novo in Harris County Criminal Court.
They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth
Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, 3a. Those
contentions were rejected. The petitioners, having entered a plea of nolo contendere, were
each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal
constitutional arguments under both the Equal Protection and Due Process Clauses of the
Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion,
rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (Tex.
App. 2001). The majority opinion indicates that the Court of Appeals considered our
decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due
process aspect of the case. Bowers then being authoritative, this was proper.
We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:
"1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law-which criminalizes sexual intimacy by same-sex couples, but not identical behavior by
different-sex couples--violate the Fourteenth Amendment guarantee of equal protection of
laws?
"2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the
home violate their vital interests in liberty and privacy protected by the Due Process Clause
of the Fourteenth Amendment?
"3. Whether Bowers v. Hardwick, 478 U. S. 186 (1986), should be overruled?" Pet. for Cert.
i.
The petitioners were adults at the time of the alleged offense. Their conduct was in
private and consensual.
II
We conclude the case should be resolved by determining whether the petitioners were
free as adults to engage in the private conduct in the exercise of their liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem
it necessary to reconsider the Court's holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due Process
Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and
Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our
decision in Griswold v. Connecticut, 381 U. S. 479 (1965).
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of
contraception and counseling or aiding and abetting the use of contraceptives. The Court
described the protected interest as a right to privacy and placed emphasis on the marriage
relation and the protected space of the marital bedroom. Id., at 485.
After Griswold it was established that the right to make certain decisions regarding sexual
conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438
(1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried
persons. The case was decided under the Equal Protection Clause, id., at 454; but with
respect to unmarried persons, the Court went on to state the fundamental proposition that
the law impaired the exercise of their personal rights, ibid. It quoted from the statement of
the Court of Appeals finding the law to be in conflict with fundamental human rights, and it
followed with this statement of its own:

"It is true that in Griswold the right of privacy in question inhered in the marital
relationship... . If the right of privacy means anything, it is the right of the individual, married
or single, to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child." Id., at 453.
The opinions in Griswold and Eisenstadt were part of the background for the decision in
Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the
Texas law prohibiting abortions, but the laws of other States were affected as well. Although
the Court held the woman's rights were not absolute, her right to elect an abortion did have
real and substantial protection as an exercise of her liberty under the Due Process Clause.
The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe
recognized the right of a woman to make certain fundamental decisions affecting her destiny
and confirmed once more that the protection of liberty under the Due Process Clause has a
substantive dimension of fundamental significance in defining the rights of the person.
In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New
York law forbidding sale or distribution of contraceptive devices to persons under 16 years of
age. Although there was no single opinion for the Court, the law was invalidated. Both
Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the
reasoning of Griswold could not be confined to the protection of rights of married adults. This
was the state of the law with respect to some of the most relevant cases when the Court
considered Bowers v. Hardwick.
The facts in Bowers had some similarities to the instant case. A police officer, whose right
to enter seems not to have been in question, observed Hardwick, in his own bedroom,
engaging in intimate sexual conduct with another adult male. The conduct was in violation of
a Georgia statute making it a criminal offense to engage in sodomy. One difference between
the two cases is that the Georgia statute prohibited the conduct whether or not the
participants were of the same sex, while the Texas statute, as we have seen, applies only to
participants of the same sex. Hardwick was not prosecuted, but he brought an action in
federal court to declare the state statute invalid. He alleged he was a practicing homosexual
and that the criminal prohibition violated rights guaranteed to him by the Constitution. The
Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and
Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four
Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall,
and Stevens, JJ.); id., at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.).
The Court began its substantive discussion in Bowers as follows: "The issue presented is
whether the Federal Constitution confers a fundamental right upon homosexuals to engage
in sodomy and hence invalidates the laws of the many States that still make such conduct
illegal and have done so for a very long time." Id., at 190. That statement, we now conclude,
discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that
the issue in Bowers was simply the right to engage in certain sexual conduct demeans the
claim the individual put forward, just as it would demean a married couple were it to be said
marriage is simply about the right to have sexual intercourse. The laws involved in Bowers
and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual
act. Their penalties and purposes, though, have more far-reaching consequences, touching
upon the most private human conduct, sexual behavior, and in the most private of places,
the home. The statutes do seek to control a personal relationship that, whether or not
entitled to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define
the meaning of the relationship or to set its boundaries absent injury to a person or abuse of
an institution the law protects. It suffices for us to acknowledge that adults may choose to
enter upon this relationship in the confines of their homes and their own private lives and still
retain their dignity as free persons. When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in a personal bond that is
more enduring. The liberty protected by the Constitution allows homosexual persons the
right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stating the
claim to be whether there is a fundamental right to engage in consensual sodomy, the
Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In
academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this
case, there are fundamental criticisms of the historical premises relied upon by the majority
and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for
American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History
et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a
definitive historical judgment, but the following considerations counsel against adopting the
definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of
laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there
were prohibitions of sodomy derived from the English criminal laws passed in the first
instance by the Reformation Parliament of 1533. The English prohibition was understood to
include relations between men and women as well as relations between men and men. See,
e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of
1533 as including women and girls). Nineteenth-century commentators similarly read
American sodomy, buggery, and crime-against-nature statutes as criminalizing certain
relations between men and women and between men and men. See, e.g., 2 J. Bishop,
Criminal Law 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A
Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes 203 (2d ed.
1893). The absence of legal prohibitions focusing on homosexual conduct may be explained
in part by noting that according to some scholars the concept of the homosexual as a
distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The
Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A
History of Sexuality in America 121 (2d ed. 1997) (" The modern terms homosexuality and
heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus
early American sodomy laws were not directed at homosexuals as such but instead sought
to prohibit nonprocreative sexual activity more generally. This does not suggest approval of
homosexual conduct. It does tend to show that this particular form of conduct was not
thought of as a separate category from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults
acting in private. A substantial number of sodomy prosecutions and convictions for which
there are surviving records were for predatory acts against those who could not or did not
consent, as in the case of a minor or the victim of an assault. As to these, one purpose for
the prohibitions was to ensure there would be no lack of coverage if a predator committed a
sexual assault that did not constitute rape as defined by the criminal law. Thus the model
sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49,
addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of
targeting relations between consenting adults in private, 19th-century sodomy prosecutions
typically involved relations between men and minor girls or minor boys, relations between
adults involving force, relations between adults implicating disparity in status, or relations
between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century
evidence rules imposed a burden that would make a conviction more difficult to obtain even
taking into account the problems always inherent in prosecuting consensual acts committed
in private. Under then-prevailing standards, a man could not be convicted of sodomy based
upon testimony of a consenting partner, because the partner was considered an accomplice.
A partner's testimony, however, was admissible if he or she had not consented to the act or
was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443
(2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part
the infrequency of these prosecutions. In all events that infrequency makes it difficult to say
that society approved of a rigorous and systematic punishment of the consensual acts
committed in private and by adults. The longstanding criminal prohibition of homosexual
sodomy upon which the Bowers decision placed such reliance is as consistent with a
general condemnation of nonprocreative sex as it is with an established tradition of
prosecuting acts because of their homosexual character.
The policy of punishing consenting adults for private acts was not much discussed in the
early legal literature. We can infer that one reason for this was the very private nature of the
conduct. Despite the absence of prosecutions, there may have been periods in which there
was public criticism of homosexuals as such and an insistence that the criminal laws be
enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478
U. S., at 192, American laws targeting same-sex couples did not develop until the last third
of the 20th century. The reported decisions concerning the prosecution of consensual,
homosexual sodomy between adults for the years 1880-1995 are not always clear in the
details, but a significant number involved conduct in a public place. See Brief for American
Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.
It was not until the 1970's that any State singled out same-sex relations for criminal
prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983
Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws
p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch.
399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated
as applied to different-sex couples). Post-Bowers even some of these States did not adhere
to the policy of suppressing homosexual conduct. Over the course of the last decades,
States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v.
Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d
112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v.
Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev.
Stat. 201.193).
In summary, the historical grounds relied upon in Bowers are more complex than the
majority opinion and the concurring opinion by Chief Justice Burger indicate. Their
historical premises are not without doubt and, at the very least, are overstated.
It must be acknowledged, of course, that the Court in Bowers was making the broader
point that for centuries there have been powerful voices to condemn homosexual conduct as
immoral. The condemnation has been shaped by religious beliefs, conceptions of right and
acceptable behavior, and respect for the traditional family. For many persons these are not
trivial concerns but profound and deep convictions accepted as ethical and moral principles
to which they aspire and which thus determine the course of their lives. These
considerations do not answer the question before us, however. The issue is whether the
majority may use the power of the State to enforce these views on the whole society through
operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our

own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850
(1992).
Chief Justice Burger joined the opinion for the Court in Bowers and further explained his
views as follows: "Decisions of individuals relating to homosexual conduct have been
subject to state intervention throughout the history of Western civilization. Condemnation of
those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S.,
at 196. As with Justice White's assumptions about history, scholarship casts some doubt on
the sweeping nature of the statement by Chief Justice Burger as it pertains to private
homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and
Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and
traditions in the past half century are of most relevance here. These references show an
emerging awareness that liberty gives substantial protection to adult persons in deciding
how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the
starting point but not in all cases the ending point of the substantive due process inquiry."
County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).
This emerging recognition should have been apparent when Bowers was decided. In
1955 the American Law Institute promulgated the Model Penal Code and made clear that it
did not recommend or provide for "criminal penalties for consensual sexual relations
conducted in private." ALI, Model Penal Code 213.2, Comment 2, p. 372 (1980). It justified
its decision on three grounds: (1) The prohibitions undermined respect for the law by
penalizing conduct many people engaged in; (2) the statutes regulated private conduct not
harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of
blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961
Illinois changed its laws to conform to the Model Penal Code. Other States soon followed.
Brief for Cato Institute as Amicus Curiae 15-16.
In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed
sodomy, and that at the time of the Court's decision 24 States and the District of Columbia
had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions
often were being ignored, however. Georgia, for instance, had not sought to enforce its law
for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund
character today of laws criminalizing this type of private, consensual conduct").
The sweeping references by Chief Justice Burger to the history of Western civilization
and to Judeo-Christian moral and ethical standards did not take account of other authorities
pointing in an opposite direction. A committee advising the British Parliament recommended
in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the
Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the
substance of those recommendations 10 years later. Sexual Offences Act 1967, 1.
Of even more importance, almost five years before Bowers was decided the European
Court of Human Rights considered a case with parallels to Bowers and to today's case. An
adult male resident in Northern Ireland alleged he was a practicing homosexual who desired
to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him
that right. He alleged that he had been questioned, his home had been searched, and he
feared criminal prosecution. The court held that the laws proscribing the conduct were
invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45
Eur. Ct. H. R. (1981) ;52. Authoritative in all countries that are members of the Council of
Europe (21 nations then, 45 nations now), the decision is at odds with the premise in
Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent
in the years following its announcement. The 25 States with laws prohibiting the relevant
conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their
laws only against homosexual conduct. In those States where sodomy is still proscribed,
whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with
respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of
that date it had not prosecuted anyone under those circumstances. State v. Morales, 869
S. W. 2d 941, 943.
Two principal cases decided after Bowers cast its holding into even more doubt. In
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court
reaffirmed the substantive force of the liberty protected by the Due Process Clause. The
Casey decision again confirmed that our laws and tradition afford constitutional protection to
personal decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and education. Id., at 851. In explaining the respect the Constitution demands
for the autonomy of the person in making these choices, we stated as follows:
" These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty protected
by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of personhood were they formed under
compulsion of the State." Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as
heterosexual persons do. The decision in Bowers would deny them this right.
The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620
(1996). There the Court struck down class-based legislation directed at homosexuals as a
violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's
constitution which named as a solitary class persons who were homosexuals, lesbians, or
bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal
quotation marks omitted), and deprived them of protection under state antidiscrimination
laws. We concluded that the provision was "born of animosity toward the class of persons
affected" and further that it had no rational relation to a legitimate governmental purpose.
Id., at 634.
As an alternative argument in this case, counsel for the petitioners and some amici
contend that Romer provides the basis for declaring the Texas statute invalid under the
Equal Protection Clause. That is a tenable argument, but we conclude the instant case
requires us to address whether Bowers itself has continuing validity. Were we to hold the
statute invalid under the Equal Protection Clause some might question whether a prohibition
would be valid if drawn differently, say, to prohibit the conduct both between same-sex and
different-sex participants.
Equality of treatment and the due process right to demand respect for conduct protected
by the substantive guarantee of liberty are linked in important respects, and a decision on
the latter point advances both interests. If protected conduct is made criminal and the law
which does so remains unexamined for its substantive validity, its stigma might remain even
if it were not enforceable as drawn for equal protection reasons. When homosexual conduct
is made criminal by the law of the State, that declaration in and of itself is an invitation to
subject homosexual persons to discrimination both in the public and in the private spheres.

The central holding of Bowers has been brought in question by this case, and it should be
addressed. Its continuance as precedent demeans the lives of homosexual persons.
The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure,
is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a
criminal offense with all that imports for the dignity of the persons charged. The petitioners
will bear on their record the history of their criminal convictions. Just this Term we rejected
various challenges to state laws requiring the registration of sex offenders. Smith v. Doe,
538 U. S. __ (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are
advised that if Texas convicted an adult for private, consensual homosexual conduct under
the statute here in question the convicted person would come within the registration laws of
a least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and
n. 12 (citing Idaho Code 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc.
Ann., 15:540-15:549 (West 2003); Miss. Code Ann. 45-33-21 to 45-33-57 (Lexis 2003);
S. C. Code Ann. 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential
nature of the punishment and the state-sponsored condemnation attendant to the criminal
prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral
consequences always following a conviction, such as notations on job application forms, to
mention but one example.
The foundations of Bowers have sustained serious erosion from our recent decisions in
Casey and Romer. When our precedent has been thus weakened, criticism from other
sources is of greater significance. In the United States criticism of Bowers has been
substantial and continuing, disapproving of its reasoning in all respects, not just as to its
historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution-A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts
of five different States have declined to follow it in interpreting provisions in their own state
constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley
v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d
18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v.
Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d
487 (Ky. 1992).
To the extent Bowers relied on values we share with a wider civilization, it should be
noted that the reasoning and holding in Bowers have been rejected elsewhere. The
European Court of Human Rights has followed not Bowers but its own decision in Dudgeon
v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ;56 (Eur.
Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland,
142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an
affirmation of the protected right of homosexual adults to engage in intimate, consensual
conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners
seek in this case has been accepted as an integral part of human freedom in many other
countries. There has been no showing that in this country the governmental interest in
circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect accorded to the judgments of the
Court and to the stability of the law. It is not, however, an inexorable command. Payne v.
Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather,
it 'is a principle of policy and not a mechanical formula of adherence to the latest decision' ")
(quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a
Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual
or societal reliance on the existence of that liberty cautions with particular strength against
reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a

jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental
reliance comparable to some instances where recognized individual rights are involved.
Indeed, there has been no individual or societal reliance on Bowers of the sort that could
counsel against overturning its holding once there are compelling reasons to do so. Bowers
itself causes uncertainty, for the precedents before and after its issuance contradict its
central holding.
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in
Bowers Justice Stevens came to these conclusions:
"Our prior cases make two propositions abundantly clear. First, the fact that the governing
majority in a State has traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice; neither history nor tradition could save a
law prohibiting miscegenation from constitutional attack. Second, individual decisions by
married persons, concerning the intimacies of their physical relationship, even when not
intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of
the Fourteenth Amendment. Moreover, this protection extends to intimate choices by
unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).
Justice Stevens' analysis, in our view, should have been controlling in Bowers and should
control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to
remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not involve persons who might be
injured or coerced or who are situated in relationships where consent might not easily be
refused. It does not involve public conduct or prostitution. It does not involve whether the
government must give formal recognition to any relationship that homosexual persons seek
to enter. The case does involve two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are
entitled to respect for their private lives. The State cannot demean their existence or control
their destiny by making their private sexual conduct a crime. Their right to liberty under the
Due Process Clause gives them the full right to engage in their conduct without intervention
of the government. "It is a promise of the Constitution that there is a realm of personal liberty
which the government may not enter." Casey, supra, at 847. The Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal and private life of the
individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the
Fourteenth Amendment known the components of liberty in its manifold possibilities, they
might have been more specific. They did not presume to have this insight. They knew times
can blind us to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress. As the Constitution endures, persons in
every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and
the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.

Justice O'Connor, concurring in the judgment.

The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers,
and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas'
statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. 21.06
(2003). Rather than relying on the substantive component of the Fourteenth Amendment's
Due Process Clause, as the Court does, I base my conclusion on the Fourteenth
Amendment's Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that
all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center,
Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our
rational basis standard of review, "legislation is presumed to be valid and will be sustained if
the classification drawn by the statute is rationally related to a legitimate state interest."
Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v.
Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996);
Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).
Laws such as economic or tax legislation that are scrutinized under rational basis review
normally pass constitutional muster, since "the Constitution presumes that even improvident
decisions will eventually be rectified by the democratic processes." Cleburne v. Cleburne
Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p.
___; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently
held, however, that some objectives, such as "a bare ... desire to harm a politically
unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno,
supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v.
Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular
group, we have applied a more searching form of rational basis review to strike down such
laws under the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law unconstitutional
under the Equal Protection Clause where, as here, the challenged legislation inhibits
personal relationships. In Department of Agriculture v. Moreno, for example, we held that a
law preventing those households containing an individual unrelated to any other member of
the household from receiving food stamps violated equal protection because the purpose of
the law was to " 'discriminate against hippies.' " 413 U. S., at 534. The asserted
governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy
rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972),
we refused to sanction a law that discriminated between married and unmarried persons by
prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v.
Cleburne Living Center, supra, we held that it was irrational for a State to require a home for
the mentally disabled to obtain a special use permit when other residences--like fraternity
houses and apartment buildings--did not have to obtain such a permit. And in Romer v.
Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability
on a single named group"--specifically, homosexuals. 517 U. S., at 632. The dissent
apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not
pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis
review that we apply. See post, at 17-18 (opinion of Scalia, J.).
The statute at issue here makes sodomy a crime only if a person "engages in deviate
sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. 21.06(a)
(2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is,

Texas treats the same conduct differently based solely on the participants. Those harmed by
this law are people who have a same-sex sexual orientation and thus are more likely to
engage in behavior prohibited by 21.06.
The Texas statute makes homosexuals unequal in the eyes of the law by making
particular conduct--and only that conduct--subject to criminal sanction. It appears that
prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941,
943 (Tex. 1994) (noting in 1994 that 21.06 "has not been, and in all probability will not be,
enforced against private consensual conduct between adults"). This case shows, however,
that prosecutions under 21.06 do occur. And while the penalty imposed on petitioners in
this case was relatively minor, the consequences of conviction are not. As the Court notes,
see ante, at 15, petitioners' convictions, if upheld, would disqualify them from or restrict their
ability to engage in a variety of professions, including medicine, athletic training, and interior
design. See, e.g., Tex. Occ. Code Ann. 164.051(a)(2)(B) (2003 Pamphlet) (physician);
451.251 (a)(1) (athletic trainer); 1053.252(2) (interior designer). Indeed, were petitioners
to move to one of four States, their convictions would require them to register as sex
offenders to local law enforcement. See, e.g., Idaho Code 18-8304 (Cum. Supp. 2002); La.
Stat. Ann. 15:542 (West Cum. Supp. 2003); Miss. Code Ann. 45-33-25 (West 2003); S. C.
Code Ann. 23-3-430 (West Cum. Supp. 2002); cf. ante, at 15.
And the effect of Texas' sodomy law is not just limited to the threat of prosecution or
consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby
making it more difficult for homosexuals to be treated in the same manner as everyone else.
Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating
in a prior challenge to this action that the law "legally sanctions discrimination against
[homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of
"employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex.
App. 1992).
Texas attempts to justify its law, and the effects of the law, by arguing that the statute
satisfies rational basis review because it furthers the legitimate governmental interest of the
promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to
homosexual couples did not violate substantive due process. We rejected the argument that
no rational basis existed to justify the law, pointing to the government's interest in promoting
morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether
the substantive component of the Due Process Clause protected a right to engage in
homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group
is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy
when heterosexual sodomy is not punished.
This case raises a different issue than Bowers: whether, under the Equal Protection
Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans
homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group,
like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis
review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno,
supra, at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that
moral disapproval, without any other asserted state interest, is a sufficient rationale under
the Equal Protection Clause to justify a law that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the
Equal Protection Clause because legal classifications must not be "drawn for the purpose of
disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral

disapproval as a legitimate state interest proves nothing more than Texas' desire to
criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from
creating "a classification of persons undertaken for its own sake." Id., at 635. And because
Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law
serves more as a statement of dislike and disapproval against homosexuals than as a tool to
stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.
Texas argues, however, that the sodomy law does not discriminate against homosexual
persons. Instead, the State maintains that the law discriminates only against homosexual
conduct. While it is true that the law applies only to conduct, the conduct targeted by this law
is conduct that is closely correlated with being homosexual. Under such circumstances,
Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay
persons as a class. "After all, there can hardly be more palpable discrimination against a
class than making the conduct that defines the class criminal." Id., at 641 (Scalia, J.,
dissenting) (internal quotation marks omitted). When a State makes homosexual conduct
criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that
declaration in and of itself is an invitation to subject homosexual persons to discrimination
both in the public and in the private spheres." Ante, at 14.
Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a
class. In Texas, calling a person a homosexual is slander per se because the word
"homosexual" "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc.,
122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d
209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being
homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d,
at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally
sanctions discrimination against them in a variety of ways unrelated to the criminal law").
Texas' sodomy law therefore results in discrimination against homosexuals as a class in an
array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction
a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The
same is true here. The Equal Protection Clause " 'neither knows nor tolerates classes
among citizens.' " Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896)
(Harlan, J. dissenting)).
A State can of course assign certain consequences to a violation of its criminal law. But
the State cannot single out one identifiable class of citizens for punishment that does not
apply to everyone else, with moral disapproval as the only asserted state interest for the law.
The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A
legislative classification that threatens the creation of an underclass ... cannot be reconciled
with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).
Whether a sodomy law that is neutral both in effect and application, see Yick Wo v.
Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process
Clause is an issue that need not be decided today. I am confident, however, that so long as
the Equal Protection Clause requires a sodomy law to apply equally to the private
consensual conduct of homosexuals and heterosexuals alike, such a law would not long
stand in our democratic society. In the words of Justice Jackson:
"The framers of the Constitution knew, and we should not forget today, that there is no more
effective practical guaranty against arbitrary and unreasonable government than to require
that the principles of law which officials would impose upon a minority be imposed generally.

Conversely, nothing opens the door to arbitrary action so effectively as to allow those
officials to pick and choose only a few to whom they will apply legislation and thus to escape
the political retribution that might be visited upon them if larger numbers were affected."
Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring
opinion).
That this law as applied to private, consensual conduct is unconstitutional under the
Equal Protection Clause does not mean that other laws distinguishing between
heterosexuals and homosexuals would similarly fail under rational basis review. Texas
cannot assert any legitimate state interest here, such as national security or preserving the
traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the
asserted state interest in this case--other reasons exist to promote the institution of marriage
beyond mere moral disapproval of an excluded group.
A law branding one class of persons as criminal solely based on the State's moral
disapproval of that class and the conduct associated with that class runs contrary to the
values of the Constitution and the Equal Protection Clause, under any standard of review. I
therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual
intercourse" between consenting adults of the same sex, but not between consenting adults
of different sexes, is unconstitutional.
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 844 (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 farreaching 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 selfdefined "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, samesex 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 rationalbasis 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 samesex 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 rationalbasis 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 oppositesex 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.
Justice Thomas, dissenting.
I join Justice Scalia's dissenting opinion. I write separately to note that the law before
the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965)
(Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal
it. Punishing someone for expressing his sexual preference through noncommercial
consensual conduct with another adult does not appear to be a worthy way to expend
valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to
help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably
to the Constitution and laws of the United States.' " Id., at 530. 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.

FOOTNOTES
Footnote 1
This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the
right to engage in homosexual acts is not deeply rooted in America's history and tradition."
Posner, Sex and Reason, at 343.

Footnote 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, 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 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).

Footnote 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
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.