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.
The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. 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. The rationale of Bowers does not withstand careful analysis. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. 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. . But there is no right to ''liberty'' under the Due Process Clause, though today's opinion repeatedly makes that claim. 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. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. 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. That is, Texas treats the same conduct differently based solely on the participants. See ibid. 517 U.S., at 632. Other states soon followed.

Id., at 188, n. 2. 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. 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.

Justice Anthony Kennedy wrote the majority opinion and Justice Sandra Day O'Connor wrote a concurrence. 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.

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.

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. . The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. The need for stability and certainty presents no barrier. . 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. 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 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.
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.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The Texas sodomy statute subjects homosexuals to “a lifelong penalty and stigma. Two principal cases decided after Bowers cast its holding into even more doubt. ''[T]here has been,'' the Court says, ''no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding . A legislative classification that threatens the creation of an underclass … cannot be reconciled with” the 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). In Eisenstadt v. Baird, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. “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). 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. .

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; that in some cases such ''discrimination'' is mandated by federal statute; and that in some cases such ''discrimination'' is a constitutional right. The petitioners will bear on their record the history of their criminal convictions. The English prohibition was understood to include relations between men and women as well as relations between men and men. Bowers was not correct when it was decided, and it is not correct today. The sodomy laws in … . Texas Penal Code Ann. But Roe and Casey have been equally ''eroded'' by Washington v. Glucksberg, 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.''

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. 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. 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.

The case was decided under the Equal Protection Clause, 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. §164.051(a)(2)(B) (2003 Pamphlet) (physician); §451.251 (a)(1) (athletic trainer); §1053.252(2) (interior designer). 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. 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. We granted certiorari to consider three questions: 1. Justice Anthony Kennedy wrote the … The liberty protected by the Constitution allows homosexual persons the right to make this choice. Department of Agriculture v. Moreno, supra, at 534. . 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. 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.

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. The decision in Bowers would deny them this right.

Justice O’Connor, concurring in the judgment. 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. Their historical premises are not without doubt and, at the very least, are overstated. 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. It is not. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers's validation of laws based on moral choices. 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. Plyler v. Doe, 457 U.S., at 239 (Powell, J., concurring). Lawrence v. Texas, 539 U.S. 558 (2003), was a landmark decision of the U.S. Supreme Court in which the Court ruled that U.S. laws prohibiting private homosexual activity, sodomy, and oral sex between consenting adults are unconstitutional. Four Justices dissented. See post, at 17—18 (opinion of Scalia, J.). 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. The impossibility of distinguishing homosexuality from other traditional ''morals'' offenses is precisely why Bowers rejected the rational-basis challenge. 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. . The stigma this criminal statute imposes, moreover, is not trivial. 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.


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