OCTOBER TERM, 2002 LAWRENCE ET AL. v. TEXAS CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH
DISTRICT 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, [563] 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. [564] 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 [565] 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. [566] 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 [567] 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 opin- [568] ions in Bowers . Brief for Cato Institute as Amicus
Curiae 16-17; Brief for American Civil Liberties Union etal.
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 [569] 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 [570] 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 etal. 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 , [571] 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 [572] 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 [573] 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 [574] 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
con- [575] clude 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. 84 (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 [576] (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 [577] 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
consti- [578] tutional 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 [579] 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 [580] democratic processes." Cleburne v. Cleburne Living Center,
supra , at 440; see also Fitzgerald v. Racing Assn. of
Central Iowa, ante, p. 103; 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. [581] 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 [582] 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. [583] 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 "ho- [584] mosexual" "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 [585] 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. [586] 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.
Hard [587] wick . 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 . [588] (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 [589] 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)). [ Footnote
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 [590] 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. [ Footnote 2 ] [591] 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 [592] 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). [593] 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)). [ Footnote 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. [594] 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 [595] 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 , [596] 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. [597] 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 [598] 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). [599] 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 [600] 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 con- [601] duct. 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 [602] 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 [603] 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 [604] 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 [605] 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 [606] 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
562. Notes 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.

															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 clearances).

															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.

Summary: The Supreme Court ruled that a Texas statute criminalizing same-sex intimate conduct violated the Due Process Clause of the Fourteenth Amendment, which protects liberty and autonomy in both spatial and transcendent dimensions. The Court did not overrule the previous decision in Bowers v. Hardwick, but noted the substantial societal reliance on that decision. The Court affirmed that "history and tradition" are essential in determining substantive due process, but they are not the sole determining factors. Liberty interests, even if unsupported by history and tradition, are protected from irrational state laws.