No.
02—102
JOHN GEDDES
LAWRENCE and TYRON GARNER,
PETITIONERS v. TEXAS
ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF
TEXAS, FOURTEENTH DISTRICT
[June 26, 2003]
Justice
Scalia, with whom The Chief Justice
and Justice Thomas join, dissenting.
“Liberty
finds no refuge in a jurisprudence
of doubt.” Planned Parenthood of
Southeastern Pa. v. Casey,
505
U.S. 833, 844 (1992). That was
the Court’s sententious response,
barely more than a decade ago, to
those seeking to overrule Roe
v. Wade, 410
U.S. 113 (1973). The Court’s response
today, to those who have engaged in
a 17-year crusade to overrule Bowers
v. Hardwick, 478
U.S. 186 (1986), is very different.
The need for stability and certainty
presents no barrier.
Most
of the rest of today’s opinion has
no relevance to its actual holding–that
the Texas statute “furthers no legitimate
state interest which can justify”
its application to petitioners under
rational-basis review. Ante,
at 18 (overruling Bowers to
the extent it sustained Georgia’s
anti-sodomy statute under the rational-basis
test). Though there is discussion
of “fundamental proposition[s],” ante,
at 4, and “fundamental decisions,”
ibid. nowhere does the Court’s
opinion declare that homosexual sodomy
is a “fundamental right” under the
Due Process Clause; nor does it subject
the Texas law to the standard of review
that would be appropriate (strict
scrutiny) if homosexual sodomy were
a “fundamental right.” Thus, while
overruling the outcome of Bowers,
the Court leaves strangely untouched
its central legal conclusion: “[R]espondent
would have us announce … a fundamental
right to engage in homosexual sodomy.
This we are quite unwilling to do.”
478 U.S., at 191. Instead the Court
simply describes petitioners’ conduct
as “an exercise of their liberty”–which
it undoubtedly is–and proceeds to
apply an unheard-of form of rational-basis
review that will have far-reaching
implications beyond this case. Ante,
at 3.
I
I
begin with the Court’s surprising
readiness to reconsider a decision
rendered a mere 17 years ago in Bowers
v. Hardwick. I do not myself
believe in rigid adherence to stare
decisis in constitutional cases;
but I do believe that we should be
consistent rather than manipulative
in invoking the doctrine. Today’s
opinions in support of reversal do
not bother to distinguish–or indeed,
even bother to mention–the paean to
stare decisis coauthored by
three Members of today’s majority
in Planned Parenthood v. Casey.
There, when stare decisis meant
preservation of judicially invented
abortion rights, the widespread criticism
of Roe was strong reason to
reaffirm it:
“ Where,
in the performance of its judicial
duties, the Court decides a case in
such a way as to resolve the sort
of intensely divisive controversy
reflected in Roe[,] … its decision
has a dimension that the resolution
of the normal case does not carry… .
[T]o overrule under fire in the absence
of the most compelling reason … would
subvert the Court’s legitimacy beyond
any serious question.” 505 U.S., at
866—867.
Today, however,
the widespread opposition to Bowers,
a decision resolving an issue as “intensely
divisive” as the issue in Roe,
is offered as a reason in favor of
overruling it. See ante,
at 15—16. Gone, too, is any “enquiry”
(of the sort conducted in Casey)
into whether the decision sought to
be overruled has “proven ‘unworkable,’ ” Casey, supra, at 855.
Today’s
approach to stare decisis invites
us to overrule an erroneously decided
precedent (including an “intensely
divisive” decision) if: (1)
its foundations have been “eroded”
by subsequent decisions, ante,
at 15; (2) it has been subject to
“substantial and continuing” criticism,
ibid.; and (3) it has not induced
“individual or societal reliance”
that counsels against overturning,
ante, at 16. The problem is
that Roe itself–which today’s
majority surely has no disposition
to overrule–satisfies these conditions
to at least the same degree as Bowers.
(1)
A preliminary digressive observation
with regard to the first factor: The
Court’s claim that Planned Parenthood
v. Casey, supra, “casts
some doubt” upon the holding in Bowers
(or any other case, for that matter)
does not withstand analysis. Ante,
at 10. As far as its holding is concerned,
Casey provided a less
expansive right to abortion than did
Roe, which was already on
the books when Bowers was decided.
And if the Court is referring not
to the holding of Casey, but
to the dictum of its famed sweet-mystery-of-life
passage, ante, at 13 (“ ‘At
the heart of liberty is the right
to define one’s own concept of existence,
of meaning, of the universe, and of
the mystery of human life’ ”):
That “casts some doubt” upon either
the totality of our jurisprudence
or else (presumably the right answer)
nothing at all. I have never heard
of a law that attempted to restrict
one’s “right to define” certain concepts;
and if the passage calls into question
the government’s power to regulate
actions based on one’s self-defined
“concept of existence, etc.,” it is
the passage that ate the rule of law.
I
do not quarrel with the Court’s claim
that Romer v. Evans,
517
U.S. 620 (1996), “eroded” the
“foundations” of Bowers’ rational-basis
holding. See Romer, supra,
at 640—643 (Scalia, J., dissenting).)
But Roe and Casey have
been equally “eroded” by Washington
v. Glucksberg,
521 U.S. 702, 721 (1997), which
held that only fundamental
rights which are “ ‘deeply rooted in this Nation’s history and tradition’ ” qualify for anything other than rational basis scrutiny
under the doctrine of “substantive
due process.” Roe and Casey,
of course, subjected the restriction
of abortion to heightened scrutiny
without even attempting to establish
that the freedom to abort was
rooted in this Nation’s tradition.
(2)
Bowers, the Court says, has
been subject to “substantial and continuing
[criticism], disapproving of its reasoning
in all respects, not just as to its
historical assumptions.” Ante,
at 15. Exactly what those nonhistorical
criticisms are, and whether the Court
even agrees with them, are left unsaid,
although the Court does cite two books.
See ibid. (citing C. Fried,
Order and Law: Arguing the Reagan
Revolution–A Firsthand Account 81—84
(1991); R. Posner, Sex and Reason
341—350 (1992)).1
Of course, Roe too (and by
extension Casey) had been (and
still is) subject to unrelenting criticism,
including criticism from the two commentators
cited by the Court today. See Fried,
supra, at 75 (“Roe was a prime
example of twisted judging”); Posner,
supra, at 337 (“[The Court’s]
opinion in Roe … fails to measure
up to professional expectations regarding
judicial opinions”); Posner, Judicial
Opinion Writing, 62 U. Chi. L. Rev.
1421, 1434 (1995) (describing the
opinion in Roe as an “embarrassing
performanc[e]”).
(3)
That leaves, to distinguish the rock-solid,
unamendable disposition of Roe
from the readily overrulable Bowers,
only the third factor. “[T]here has
been,” the Court says, “no individual
or societal reliance on Bowers
of the sort that could counsel against
overturning its holding … .”
Ante, at 16. It seems to me
that the “societal reliance” on the
principles confirmed in Bowers
and discarded today has been overwhelming.
Countless judicial decisions and legislative
enactments have relied on the ancient
proposition that a governing majority’s
belief that certain sexual behavior
is “immoral and unacceptable” constitutes
a rational basis for regulation. See,
e.g., Williams v. Pryor,
240 F.3d 944, 949 (CA11 2001) (citing
Bowers in upholding Alabama’s
prohibition on the sale of sex toys
on the ground that “[t]he crafting
and safeguarding of public morality
… indisputably is a legitimate government
interest under rational basis scrutiny”);
Milner v. Apfel, 148
F.3d 812, 814 (CA7 1998) (citing Bowers
for the proposition that “[l]egislatures
are permitted to legislate with regard
to morality … rather than confined
to preventing demonstrable harms”);
Holmes v. California Army
National Guard 124 F.3d 1126,
1136 (CA9 1997) (relying on Bowers
in upholding the federal statute and
regulations banning from military
service those who engage in homosexual
conduct); Owens v. State,
352 Md. 663, 683, 724 A. 2d 43,
53 (1999) (relying on Bowers
in holding that “a person has no constitutional
right to engage in sexual intercourse,
at least outside of marriage”); Sherman
v. Henry, 928 S. W. 2d
464, 469—473 (Tex. 1996) (relying
on Bowers in rejecting a claimed
constitutional right to commit adultery).
We ourselves relied extensively on
Bowers when we concluded, in
Barnes v. Glen Theatre,
Inc., 501
U.S. 560, 569 (1991), that Indiana’s
public indecency statute furthered
“a substantial government interest
in protecting order and morality,”
ibid., (plurality opinion);
see also id., at 575 (Scalia,
J., concurring in judgment). State
laws against bigamy, same-sex marriage,
adult incest, prostitution, masturbation,
adultery, fornication, bestiality,
and obscenity are likewise sustainable
only in light of Bowers’ validation
of laws based on moral choices. Every
single one of these laws is called
into question by today’s decision;
the Court makes no effort to cabin
the scope of its decision to exclude
them from its holding. See ante,
at 11 (noting “an emerging awareness
that liberty gives substantial protection
to adult persons in deciding how to
conduct their private lives in
matters pertaining to sex” (emphasis
added)). The impossibility of distinguishing
homosexuality from other traditional
“morals” offenses is precisely why
Bowers rejected the rational-basis
challenge. “The law,” it said, “is
constantly based on notions of morality,
and if all laws representing essentially
moral choices are to be invalidated
under the Due Process Clause, the
courts will be very busy indeed.”
478 U.S., at 196.2
What
a massive disruption of the current
social order, therefore, the overruling
of Bowers entails. Not so the
overruling of Roe, which would
simply have restored the regime that
existed for centuries before 1973,
in which the permissibility of and
restrictions upon abortion were determined
legislatively State-by-State. Casey,
however, chose to base its stare
decisis determination on a different
“sort” of reliance. “[P]eople,” it
said, “have organized intimate relationships
and made choices that define their
views of themselves and their places
in society, in reliance on the availability
of abortion in the event that contraception
should fail.” 505 U.S., at 856. This
falsely assumes that the consequence
of overruling Roe would have
been to make abortion unlawful. It
would not; it would merely have
permitted the States to do so.
Many States would unquestionably have
declined to prohibit abortion, and
others would not have prohibited it
within six months (after which the
most significant reliance interests
would have expired). Even for persons
in States other than these, the choice
would not have been between abortion
and childbirth, but between abortion
nearby and abortion in a neighboring
State.
To
tell the truth, it does not surprise
me, and should surprise no one, that
the Court has chosen today to revise
the standards of stare decisis
set forth in Casey. It has
thereby exposed Casey’s extraordinary
deference to precedent for the result-oriented
expedient that it is.
II
Having
decided that it need not adhere to
stare decisis, the Court still
must establish that Bowers
was wrongly decided and that the Texas
statute, as applied to petitioners,
is unconstitutional.
Texas
Penal Code Ann. §21.06(a) (2003) undoubtedly
imposes constraints on liberty. So
do laws prohibiting prostitution,
recreational use of heroin, and, for
that matter, working more than 60
hours per week in a bakery. But there
is no right to “liberty” under the
Due Process Clause, though today’s
opinion repeatedly makes that claim.
Ante, at 6 (“The liberty protected
by the Constitution allows homosexual
persons the right to make this choice”);
ante, at 13 (“ ‘ These
matters … are central to the liberty
protected by the Fourteenth
Amendment’ ”); ante, at 17 (“Their right to liberty under
the Due Process Clause gives them
the full right to engage in their
conduct without intervention of the
government”). The Fourteenth
Amendment expressly allows
States to deprive their citizens of
“liberty,” so long as “due process
of law” is provided:
“No state shall
… deprive any person of life, liberty,
or property, without due process
of law.” Amdt. 14 (emphasis added).
Our
opinions applying the doctrine known
as “substantive due process” hold
that the Due Process Clause prohibits
States from infringing fundamental
liberty interests, unless the
infringement is narrowly tailored
to serve a compelling state interest.
Washington v. Glucksberg,
521 U.S., at 721. We have held repeatedly,
in cases the Court today does not
overrule, that only fundamental
rights qualify for this so-called
“heightened scrutiny” protection–that
is, rights which are “ ‘deeply rooted in this Nation’s history and tradition,’ ” ibid. See Reno v. Flores, 507
U.S. 292, 303 (1993) (fundamental
liberty interests must be “so rooted
in the traditions and conscience of
our people as to be ranked as fundamental”
(internal quotation marks and citations
omitted)); United States v.
Salerno, 481
U.S. 739, 751 (1987) (same). See
also Michael H. v. Gerald
D., 491
U.S. 110, 122 (1989) (“[W]e have
insisted not merely that the interest
denominated as a ‘liberty’ be ‘fundamental’
… but also that it be an interest
traditionally protected by our society”);
Moore v. East Cleveland,
431
U.S. 494, 503 (1977) (plurality
opinion); Meyer v. Nebraska,
262
U.S. 390, 399 (1923) (Fourteenth
Amendment protects “those privileges
long recognized at common law
as essential to the orderly pursuit
of happiness by free men” (emphasis
added)).3
All other liberty interests may be
abridged or abrogated pursuant to
a validly enacted state law if that
law is rationally related to a legitimate
state interest.
Bowers
held, first, that criminal prohibitions
of homosexual sodomy are not subject
to heightened scrutiny because they
do not implicate a “fundamental right”
under the Due Process Clause, 478
U.S., at 191—194. Noting that “[p]roscriptions
against that conduct have ancient
roots,” id., at 192, that “[s]odomy
was a criminal offense at common law
and was forbidden by the laws of the
original 13 States when they ratified
the Bill of Rights,” ibid.,
and that many States had retained
their bans on sodomy, id.,
at 193, Bowers concluded that
a right to engage in homosexual sodomy
was not “ ‘deeply
rooted in this Nation’s history and
tradition,’ ”
id., at 192.
The
Court today does not overrule this
holding. Not once does it describe
homosexual sodomy as a “fundamental
right” or a “fundamental liberty interest,”
nor does it subject the Texas statute
to strict scrutiny. Instead, having
failed to establish that the right
to homosexual sodomy is “ ‘deeply rooted in this Nation’s history and tradition,’ ” the Court concludes that the application of Texas’s
statute to petitioners’ conduct fails
the rational-basis test, and overrules
Bowers’ holding to the contrary,
see id., at 196. “The Texas
statute furthers no legitimate state
interest which can justify its intrusion
into the personal and private life
of the individual.” Ante, at
18.
I
shall address that rational-basis
holding presently. First, however,
I address some aspersions that the
Court casts upon Bowers’ conclusion
that homosexual sodomy is not a “fundamental
right”–even though, as I have said,
the Court does not have the boldness
to reverse that conclusion.
III
The
Court’s description of “the state
of the law” at the time of Bowers
only confirms that Bowers was
right. Ante, at 5. The Court
points to Griswold v. Connecticut,
381
U.S. 479, 481—482 (1965). But
that case expressly disclaimed
any reliance on the doctrine of “substantive
due process,” and grounded the so-called
“right to privacy” in penumbras of
constitutional provisions other
than the Due Process Clause. Eisenstadt
v. Baird, 405
U.S. 438 (1972), likewise had
nothing to do with “substantive due
process”; it invalidated a Massachusetts
law prohibiting the distribution of
contraceptives to unmarried persons
solely on the basis of the Equal Protection
Clause. Of course Eisenstadt
contains well known dictum relating
to the “right to privacy,” but this
referred to the right recognized in
Griswold–a right penumbral
to the specific guarantees
in the Bill of Rights, and not a “substantive
due process” right.
Roe
v. Wade recognized that the
right to abort an unborn child was
a “fundamental right” protected by
the Due Process Clause. 410 U.S.,
at 155. The Roe Court, however,
made no attempt to establish that
this right was “ ‘deeply
rooted in this Nation’s history and
tradition’ ”;
instead, it based its conclusion that
“the Fourteenth
Amendment’s concept of personal
liberty … is broad enough to encompass
a woman’s decision whether or not
to terminate her pregnancy” on its
own normative judgment that anti-abortion
laws were undesirable. See id.,
at 153. We have since rejected Roe’s
holding that regulations of abortion
must be narrowly tailored to serve
a compelling state interest, see Planned
Parenthood v. Casey, 505
U.S., at 876 (joint opinion of O’Connor,
Kennedy, and Souter, JJ.); id.,
at 951—953 (Rehnquist, C. J.,
concurring in judgment in part and
dissenting in part)–and thus, by logical
implication, Roe’s holding
that the right to abort an unborn
child is a “fundamental right.” See
505 U.S., at 843—912 (joint opinion
of O’Connor, Kennedy, and Souter,
JJ.) (not once describing abortion
as a “fundamental right” or a “fundamental
liberty interest”).
After
discussing the history of antisodomy
laws, ante, at 7—10, the Court
proclaims that, “it should be noted
that there is no longstanding history
in this country of laws directed at
homosexual conduct as a distinct matter,”
ante, at 7. This observation
in no way casts into doubt the “definitive
[historical] conclusion,” id.,
on which Bowers relied: that
our Nation has a longstanding history
of laws prohibiting sodomy in general–regardless
of whether it was performed by same-sex
or opposite-sex couples:
“It is obvious to
us that neither of these formulations
would extend a fundamental right to
homosexuals to engage in acts of consensual
sodomy. Proscriptions against that
conduct have ancient roots. Sodomy
was a criminal offense at common law
and was forbidden by the laws of the
original 13 States when they ratified
the Bill of Rights. In 1868, when
the Fourteenth
Amendment was ratified, all but
5 of the 37 States in the Union had
criminal sodomy laws. In fact,
until 1961, all 50 States outlawed
sodomy, and today, 24 States
and the District of Columbia continue
to provide criminal penalties for
sodomy performed in private
and between consenting adults. Against
this background, to claim that a right
to engage in such conduct is ‘deeply
rooted in this Nation’s history and
tradition’ or ‘implicit in the concept
of ordered liberty’ is, at best, facetious.”
478 U.S., at 192—194 (citations and
footnotes omitted; emphasis added).
It is (as Bowers
recognized) entirely irrelevant whether
the laws in our long national tradition
criminalizing homosexual sodomy were
“directed at homosexual conduct as
a distinct matter.” Ante, at
7. Whether homosexual sodomy was prohibited
by a law targeted at same-sex sexual
relations or by a more general law
prohibiting both homosexual and heterosexual
sodomy, the only relevant point is
that it was criminalized–which
suffices to establish that homosexual
sodomy is not a right “deeply rooted
in our Nation’s history and tradition.”
The Court today agrees that homosexual
sodomy was criminalized and thus does
not dispute the facts on which Bowers
actually relied.
Next
the Court makes the claim, again unsupported
by any citations, that “[l]aws prohibiting
sodomy do not seem to have been enforced
against consenting adults acting in
private.” Ante, at 8. The key
qualifier here is “acting in private”–since
the Court admits that sodomy laws
were enforced against consenting
adults (although the Court contends
that prosecutions were “infrequent,”
ante, at 9). I do not know
what “acting in private” means; surely
consensual sodomy, like heterosexual
intercourse, is rarely performed on
stage. If all the Court means by “acting
in private” is “on private premises,
with the doors closed and windows
covered,” it is entirely unsurprising
that evidence of enforcement would
be hard to come by. (Imagine the circumstances
that would enable a search warrant
to be obtained for a residence on
the ground that there was probable
cause to believe that consensual sodomy
was then and there occurring.) Surely
that lack of evidence would not sustain
the proposition that consensual sodomy
on private premises with the doors
closed and windows covered was regarded
as a “fundamental right,” even though
all other consensual sodomy was criminalized.
There are 203 prosecutions for consensual,
adult homosexual sodomy reported in
the West Reporting system and official
state reporters from the years 1880—1995.
See W. Eskridge, Gaylaw: Challenging
the Apartheid of the Closet 375 (1999)
(hereinafter Gaylaw). There are also
records of 20 sodomy prosecutions
and 4 executions during the colonial
period. J. Katz, Gay/Lesbian
Almanac 29, 58, 663 (1983). Bowers’
conclusion that homosexual sodomy
is not a fundamental right “deeply
rooted in this Nation’s history and
tradition” is utterly unassailable.
Realizing
that fact, the Court instead says:
“[W]e think that our laws and traditions
in the past half century are of most
relevance here. These references show
an emerging awareness that
liberty gives substantial protection
to adult persons in deciding how to
conduct their private lives in
matters pertaining to sex.” Ante,
at 11 (emphasis added). Apart from
the fact that such an “emerging awareness”
does not establish a “fundamental
right,” the statement is factually
false. States continue to prosecute
all sorts of crimes by adults “in
matters pertaining to sex”: prostitution,
adult incest, adultery, obscenity,
and child pornography. Sodomy laws,
too, have been enforced “in the past
half century,” in which there have
been 134 reported cases involving
prosecutions for consensual, adult,
homosexual sodomy. Gaylaw 375. In
relying, for evidence of an “emerging
recognition,” upon the American Law
Institute’s 1955 recommendation not
to criminalize “ ‘consensual sexual relations conducted in private,’ ” ante, at 11, the Court ignores the fact that
this recommendation was “a point of
resistance in most of the states that
considered adopting the Model Penal
Code.” Gaylaw 159.
In
any event, an “emerging awareness”
is by definition not “deeply rooted
in this Nation’s history and tradition[s],”
as we have said “fundamental right”
status requires. Constitutional entitlements
do not spring into existence because
some States choose to lessen or eliminate
criminal sanctions on certain behavior.
Much less do they spring into existence,
as the Court seems to believe, because
foreign nations decriminalize
conduct. The Bowers majority
opinion never relied on “values
we share with a wider civilization,”
ante, at 16, but rather rejected
the claimed right to sodomy on the
ground that such a right was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” 478 U.S., at 193—194 (emphasis added). Bowers’
rational-basis holding is likewise
devoid of any reliance on the views
of a “wider civilization,” see id.,
at 196. The Court’s discussion of
these foreign views (ignoring, of
course, the many countries that have
retained criminal prohibitions on
sodomy) is therefore meaningless dicta.
Dangerous dicta, however, since “this
Court … should not impose foreign
moods, fads, or fashions on Americans.”
Foster v. Florida, 537
U.S. 990, n. (2002) (Thomas, J.,
concurring in denial of certiorari).
IV
I
turn now to the ground on which the
Court squarely rests its holding:
the contention that there is no rational
basis for the law here under attack.
This proposition is so out of accord
with our jurisprudence–indeed, with
the jurisprudence of any society
we know–that it requires little discussion.
The
Texas statute undeniably seeks to
further the belief of its citizens
that certain forms of sexual behavior
are “immoral and unacceptable,” Bowers,
supra, at 196–the same interest
furthered by criminal laws against
fornication, bigamy, adultery, adult
incest, bestiality, and obscenity.
Bowers held that this was
a legitimate state interest. The Court
today reaches the opposite conclusion.
The Texas statute, it says, “furthers
no legitimate state interest
which can justify its intrusion into
the personal and private life of the
individual,” ante, at 18 (emphasis
addded). The Court embraces instead
Justice Stevens’ declaration in his
Bowers dissent, that “the fact
that the governing majority in a State
has traditionally viewed a particular
practice as immoral is not a sufficient
reason for upholding a law prohibiting
the practice,” ante, at 17.
This effectively decrees the end of
all morals legislation. If, as the
Court asserts, the promotion of majoritarian
sexual morality is not even a legitimate
state interest, none of the above-mentioned
laws can survive rational-basis review.
V
Finally,
I turn to petitioners’ equal-protection
challenge, which no Member of the
Court save Justice O’Connor, ante,
at 1 (opinion concurring in judgment),
embraces: On its face §21.06(a) applies
equally to all persons. Men and women,
heterosexuals and homosexuals, are
all subject to its prohibition of
deviate sexual intercourse with someone
of the same sex. To be sure, §21.06
does distinguish between the sexes
insofar as concerns the partner with
whom the sexual acts are performed:
men can violate the law only with
other men, and women only with other
women. But this cannot itself be a
denial of equal protection, since
it is precisely the same distinction
regarding partner that is drawn in
state laws prohibiting marriage with
someone of the same sex while permitting
marriage with someone of the opposite
sex.
The
objection is made, however, that the
antimiscegenation laws invalidated
in Loving v. Virginia,
388
U.S. 1, 8 (1967), similarly were
applicable to whites and blacks alike,
and only distinguished between the
races insofar as the partner
was concerned. In Loving, however,
we correctly applied heightened scrutiny,
rather than the usual rational-basis
review, because the Virginia statute
was “designed to maintain White Supremacy.”
Id., at 6, 11. A racially discriminatory
purpose is always sufficient to subject
a law to strict scrutiny, even a facially
neutral law that makes no mention
of race. See Washington v.
Davis, 426
U.S. 229, 241—242 (1976). No purpose
to discriminate against men or women
as a class can be gleaned from the
Texas law, so rational-basis review
applies. That review is readily satisfied
here by the same rational basis that
satisfied it in Bowers–society’s
belief that certain forms of sexual
behavior are “immoral and unacceptable,”
478 U.S., at 196. This is the same
justification that supports many other
laws regulating sexual behavior that
make a distinction based upon the
identity of the partner–
for example, laws against adultery,
fornication, and adult incest, and
laws refusing to recognize homosexual
marriage.
Justice
O’Connor argues that the discrimination
in this law which must be justified
is not its discrimination with regard
to the sex of the partner but its
discrimination with regard to the
sexual proclivity of the principal
actor.
“While it is true
that the law applies only to conduct,
the conduct targeted by this law is
conduct that is closely correlated
with being homosexual. Under such
circumstances, Texas’ sodomy law is
targeted at more than conduct. It
is instead directed toward gay persons
as a class.” Ante, at 5.
Of course the same
could be said of any law. A law against
public nudity targets “the conduct
that is closely correlated with being
a nudist,” and hence “is targeted
at more than conduct”; it is “directed
toward nudists as a class.” But be
that as it may. Even if the Texas
law does deny equal protection
to “homosexuals as a class,” that
denial still does not need
to be justified by anything more than
a rational basis, which our cases
show is satisfied by the enforcement
of traditional notions of sexual morality.
Justice
O’Connor simply decrees application
of “a more searching form of rational
basis review” to the Texas statute.
Ante, at 2. The cases she cites
do not recognize such a standard,
and reach their conclusions only after
finding, as required by conventional
rational-basis analysis, that no conceivable
legitimate state interest supports
the classification at issue. See Romer
v. Evans, 517 U.S., at 635;
Cleburne v. Cleburne Living
Center, Inc., 473
U.S. 432, 448—450 (1985); Department
of Agriculture v. Moreno,
413
U.S. 528, 534—538 (1973). Nor
does Justice O’Connor explain precisely
what her “more searching form” of
rational-basis review consists of.
It must at least mean, however, that
laws exhibiting “ ‘a
… desire to harm a politically unpopular
group,’ ”
ante, at 2, are invalid even
though there may be a conceivable
rational basis to support them.
This
reasoning leaves on pretty shaky grounds
state laws limiting marriage to opposite-sex
couples. Justice O’Connor seeks to
preserve them by the conclusory statement
that “preserving the traditional institution
of marriage” is a legitimate state
interest. Ante, at 7. But “preserving
the traditional institution of marriage”
is just a kinder way of describing
the State’s moral disapproval of
same-sex couples. Texas’s interest
in §21.06 could be recast in similarly
euphemistic terms: “preserving the
traditional sexual mores of our society.”
In the jurisprudence Justice O’Connor
has seemingly created, judges can
validate laws by characterizing them
as “preserving the traditions of society”
(good); or invalidate them by characterizing
them as “expressing moral disapproval”
(bad).
*
* *
Today’s
opinion is the product of a Court,
which is the product of a law-profession
culture, that has largely signed on
to the so-called homosexual agenda,
by which I mean the agenda promoted
by some homosexual activists directed
at eliminating the moral opprobrium
that has traditionally attached to
homosexual conduct. I noted in an
earlier opinion the fact that the
American Association of Law Schools
(to which any reputable law school
must seek to belong) excludes
from membership any school that refuses
to ban from its job-interview facilities
a law firm (no matter how small) that
does not wish to hire as a prospective
partner a person who openly engages
in homosexual conduct. See Romer,
supra, at 653.
One
of the most revealing statements in
today’s opinion is the Court’s grim
warning that the criminalization of
homosexual conduct is “an invitation
to subject homosexual persons to discrimination
both in the public and in the private
spheres.” Ante, at 14. It is
clear from this that the Court has
taken sides in the culture war, departing
from its role of assuring, as neutral
observer, that the democratic rules
of engagement are observed. Many Americans
do not want persons who openly engage
in homosexual conduct as partners
in their business, as scoutmasters
for their children, as teachers in
their children’s schools, or as boarders
in their home. They view this as protecting
themselves and their families from
a lifestyle that they believe to be
immoral and destructive. The Court
views it as “discrimination” which
it is the function of our judgments
to deter. So imbued is the Court with
the law profession’s anti-anti-homosexual
culture, that it is seemingly unaware
that the attitudes of that culture
are not obviously “mainstream”; that
in most States what the Court calls
“discrimination” against those who
engage in homosexual acts is perfectly
legal; that proposals to ban such
“discrimination” under Title VII have
repeatedly been rejected by Congress,
see Employment Non-Discrimination
Act of 1994, S. 2238, 103d Cong.,
2d Sess. (1994); Civil Rights Amendments,
H. R. 5452, 94th Cong., 1st Sess.
(1975); that in some cases such “discrimination”
is mandated by federal statute,
see 10
U.S.C. § 654(b)(1) (mandating
discharge from the armed forces of
any service member who engages in
or intends to engage in homosexual
acts); and that in some cases such
“discrimination” is a constitutional
right, see Boy Scouts of America
v. Dale, 530
U.S. 640 (2000).
Let
me be clear that I have nothing against
homosexuals, or any other group, promoting
their agenda through normal democratic
means. Social perceptions of sexual
and other morality change over time,
and every group has the right to persuade
its fellow citizens that its view
of such matters is the best. That
homosexuals have achieved some success
in that enterprise is attested to
by the fact that Texas is one of the
few remaining States that criminalize
private, consensual homosexual acts.
But persuading one’s fellow citizens
is one thing, and imposing one’s views
in absence of democratic majority
will is something else. I would no
more require a State to criminalize
homosexual acts–or, for that matter,
display any moral disapprobation
of them–than I would forbid it
to do so. What Texas has chosen to
do is well within the range of traditional
democratic action, and its hand should
not be stayed through the invention
of a brand-new “constitutional right”
by a Court that is impatient of democratic
change. It is indeed true that “later
generations can see that laws once
thought necessary and proper in fact
serve only to oppress,” ante,
at 18; and when that happens, later
generations can repeal those laws.
But it is the premise of our system
that those judgments are to be made
by the people, and not imposed by
a governing caste that knows best.
One
of the benefits of leaving regulation
of this matter to the people rather
than to the courts is that the people,
unlike judges, need not carry things
to their logical conclusion. The people
may feel that their disapprobation
of homosexual conduct is strong enough
to disallow homosexual marriage, but
not strong enough to criminalize private
homosexual acts–and may legislate
accordingly. The Court today pretends
that it possesses a similar freedom
of action, so that that we need not
fear judicial imposition of homosexual
marriage, as has recently occurred
in Canada (in a decision that the
Canadian Government has chosen not
to appeal). See Halpern v.
Toronto, 2003 WL 34950 (Ontario
Ct. App.); Cohen, Dozens in Canada
Follow Gay Couple’s Lead, Washington
Post, June 12, 2003, p. A25. At the
end of its opinion–after having laid
waste the foundations of our rational-basis
jurisprudence–the Court says that
the present case “does not involve
whether the government must give formal
recognition to any relationship that
homosexual persons seek to enter.”
Ante, at 17. Do not believe
it. More illuminating than this bald,
unreasoned disclaimer is the progression
of thought displayed by an earlier
passage in the Court’s opinion, which
notes the constitutional protections
afforded to “personal decisions relating
to marriage, procreation, contraception,
family relationships, child rearing,
and education,” and then declares
that “[p]ersons in a homosexual relationship
may seek autonomy for these purposes,
just as heterosexual persons do.”
Ante, at 13 (emphasis added).
Today’s opinion dismantles the
structure of constitutional law that
has permitted a distinction to be
made between heterosexual and homosexual
unions, insofar as formal recognition
in marriage is concerned. If moral
disapprobation of homosexual conduct
is “no legitimate state interest”
for purposes of proscribing that conduct,
ante, at 18; and if, as the
Court coos (casting aside all pretense
of neutrality), “[w]hen sexuality
finds overt expression in intimate
conduct with another person, the conduct
can be but one element in a personal
bond that is more enduring,” ante,
at 6; what justification could there
possibly be for denying the benefits
of marriage to homosexual couples
exercising “[t]he liberty protected
by the Constitution,” ibid.?
Surely not the encouragement of procreation,
since the sterile and the elderly
are allowed to marry. This case “does
not involve” the issue of homosexual
marriage only if one entertains the
belief that principle and logic have
nothing to do with the decisions of
this Court. Many will hope that, as
the Court comfortingly assures us,
this is so.
The
matters appropriate for this Court’s
resolution are only three: Texas’s
prohibition of sodomy neither infringes
a “fundamental right” (which the Court
does not dispute), nor is unsupported
by a rational relation to what the
Constitution considers a legitimate
state interest, nor denies the equal
protection of the laws. I dissent.
Notes
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