For the Supreme Court, it was an astonishing week. That they came out with a flurry of decisions was expected, of course. They often do that in June, at the end of their term. But this court, hag-ridden with ideologues like Scalia, Thomas and Rehnquist, nevertheless came down solidly on the side of constitutional rights and fairness in nearly all the cases. They upheld affirmative action; they barred racially motivated Congressional reapportionments; they affirmed the right of the accused to effective and competent defense in a trial; they refused to entertain Nike’s bizarre notion that the company had a first amendment right to misrepresent itself (i.e., lie) in its promotional literature. They determined that no state could strike down the statute of limitations ex post facto. That was a tough one, since it indisputably let bad guys out of jail and caused heartbreak for victims. But it was nevertheless the right thing to do. Even on the most restrictive decision, that of internet filters in public libraries, the majority of the court agreed that adult patrons had the right to demand the filter be temporarily shut off while they were logged on.

And they struck down the sodomy laws on 14^th amendment grounds and to preserve the right to privacy. On this one, they didn’t just ignore stare decisis; they reversed themselves. (They did the same partially in another case, backing away from the lunatic assumption that campaign contributions were free speech.)

Now, one doesn’t normally look at Sandra Day O'Connor and think, "There goes a champion of buggery." She probably finds it a rather distasteful subject.

But, like five other members of the court, she recognized that in the privacy of your own home, it is personal, rather than criminal behavior.

It was a case that should never have happened. Texas cops broke into a private residence on an erroneous report of a crime in progress, and found two men having sex. Aside from that, nothing criminal was going on. I suspect the fact that one was white and one was black may have further affected their already poor judgement, especially if the black man was in the dominant position. Texas cops tend to be somewhat limited in some ways. An honest court could only rule one way on this case. Two thirds of this court did so.

The American right did what it always does when one of its sacred cows gets hamburgerized; it set up a steady banshee wail that should continue for about 75 or 80 years. Jerry Falwell came out with a special communique entitled "TEXAS SODOMY LAW OVERTURNED - A TRAGEDY FOR AMERICA" – yes, all caps – that consisted mostly of quotes from other right wing nutjobs, all of whom were also in hysterics. One example was from a guy named Mathew Staver, who is president and general counsel of something called Liberty Counsel. He declared the case a "wakeup call" and added, "The goal of the radical homosexual agenda is to eliminate any and all laws regulating consensual sexual conduct. This would mean the elimination of laws banning polygamy as well as those that ban sex between adults and minors." Staver didn’t explain why polygamy was necessarily a bad thing, and neither did he explain why buggering children would be legal when the regular kind of intercourse, even if not forcible, is very much against the law due to the protected status of children. But then, these right wing haters always try to equate homosexuality with pedophilia.

But by far, the most splendid eruption of rage and vitriol came from the head whack of the far right, the ranking troglojustice himself, Antonin Scalia.

Scaly is known for his vociferous dissents, which are characterized in legal parlance as being "hissy fits," "temper tantrums," and "screaming and throwing his feces at the bars of his cage."

The prospect of Americans buggering other Americans without his permission put Scaly in rare form. His written dissent, which he read from the bench, was longer than the decision itself. He starts out mildly enough, stating that "nowhere does the Court's opinion declare that homosexual sodomy is a 'fundamental right'" Fair enough. I bet the main reason nobody did was because nobody dared try it without grinning at the unfortunate phrasing. He then proceed to rant that the court as a whole was all for stare decisis (consistency in rulings by depending on previous rulings) in the case of Roe vs Wade (which alas, has nothing to do with buggery; indeed, if there was more buggery, Roe v. Wade might be moot) and now dropping it. He allowed, however, that he wasn’t a big fan of stare decisis, a timid admission from a man intent on revising the entire body of law in America.

Then he begins to become unstuck. He rhetorically inquires if the majority on the court were basing their decision on a trial referred to as "Casey," noting a phrase in it (''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'') and dismissing it as a "sweet-mystery-of-life passage." At this point, nobody knows what the man is talking about. Nobody’s mentioned Casey, not even in terms of baseball.

Casey, it turns out, is a trial dealing with abortion. But it has something to do with Roe, and 'Roe was a prime example of twisted judging' Therefore Lawrence vs. Texas must be, too, because Scaly mentioned them together. He quoted a Judge Posner as saying that Roe was bad law, and I suspect that the Posner in question is Alabama’s very own CJ "Hang Ten" Posner, who tried to put the ten commandments up in his court room and once ruled that secular humanism was a religion. (Much the way "barefoot" is a type of shoe, or "bald" is a hair color, yessss).

Well, birds of a feather.

Scaly then wades into the thicket of privacy, noting that consensual sodomy performed in the privacy of one’s home rarely results in persecution anyway. It seems to have escaped Scaly that he was ruling on a case where that privacy was violated, and the two men were arrested for no other reason then that they were engaged in consensual sexual activity.

From there, he launches an attack on the right to privacy, saying "the right recognized in

Griswold--a right penumbral to the specific guarantees in the Bill of Rights, and not a 'substantive due process' right." In other words, it’s the tired old right wing wheeze that a right not directly stipulated in the bill of rights carries no weight. Scaly has apparently never heard of the ninth amendment, which says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Penumbral rights aren’t difficult to grasp. They are rights that the government must respect, even if they aren’t mentioned directly, because failure to do so would essentially eliminate rights. The right to privacy isn’t mentioned, but without it, the rest of the rights that ARE listed don’t amount to much. The right to avoid self-incrimination would mean nothing if the government watched you constantly in the privacy of your own home. Even the first amendment rights, viewed as absolute, are actually penumbral. "CONGRESS shall make no law..." A fundamentalist interpretation of the constitution means that when it comes to freedom of speech, religion or assembly, any OTHER governmental body can pass any damn law they please, leaving only Congress as the only body in America unable to violate rights of speech, religion, or assembly.

The problem is apparent to anyone except Scaly.

He broke away from ranting about Roe (and nobody except Scaly knows what abortion has to do with sodomy) to equate sodomy to "prostitution, recreational use of heroin,

and, for that matter, working more than 60 hours per week in a bakery." None of these, in Scaly’s opinion, were rights, or due process. At which point, reporters and spectators all just sort of blinked at one another. Nobody knew what the man was talking about.

In one of his few lucid moments, Scaly remarked, "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."

In other words, the law was valid because it was nearly unenforceable. If it could be enforced, then it might not be good law.

Scaly wrapped up with this howler: "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."

Translated: Scaly feels that rights should be subject to popular vote, and that 51% of the population can decide if a given group is entitled to rights or not. The entire purpose of the constitution appears to have escaped him, and its insistence that rights exist independently of plebiscite or the wishes of government.

After Scaly sat down, Clarence "Slappy" Thomas, court slug, added this addendum: "I write separately to note that the law before the Court today 'is ... uncommonly silly.'"

I’m not joking. That was the man’s considered legal opinion. He stands on the shoulders of giants.

I was thinking about why the six members of the court ruled as they did. Two of them, Kennedy and O'Connor, have been distinctly pro civil rights of late, and I can’t help but wonder if they feel a sense of shame for their role in Bush vs. Gore. Knowing, as retirement nears, that you will be remembered as being in the majority in a decision that was among the worst in court history and might well have destroyed your country must not feel very good.

If they are being shamed into being decent, that’s fine. I’ll take that over empty apologies any day.

But I think it was the recent example of the Canadian high court, which struck down Ontario law establishing marriage as being between "a man and a woman" only, that may have provided the impetus.

America, after all, has long considered herself the guardian of personal rights, and the court the thin black line that protected those rights. They haven’t done a very good job lately, and the results are becoming apparent.

Perhaps the Canadian court, daring to stand for the right of Canada’s citizenry, is what shamed this court.

In any event, the court showed that freedom in America isn’t dead.

While showing, once again, why Scalia and Thomas shouldn’t be panelists on a game show, let alone the Supreme Court.

[Zeppnote: Here, in all its glory, is Scaly’s dissent. It was posted on Usenet by a fellow who is often subject to ridicule because it was noticed that he was posting personal ads in another public section of Usenet, offering his services to perform analingus on the ladies. He was morally outraged by this week’s Supreme Court decision. His sanity has been often called into question.]

Lawrence et al v. Texas

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 begin with the Court's surprising readiness to reconsider a decision

rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe

in rigid adherence to stare decisis in constitutional cases; but I do

believe that we should be consistent rather than manipulative in invoking

the doctrine. Today's opinions in support of reversal do not bother to

distinguish--or indeed, even bother to mention--the paean to stare decisis

coauthored by three Members of today's majority in Planned Parenthood v.

Casey. There, when stare decisis meant preservation of judicially invented

abortion rights, the widespread criticism of Roe was strong reason to

reaffirm it:

' Where, in the performance of its judicial duties, the Court decides a case

in such a way as to resolve the sort of intensely divisive controversy

reflected in Roe[,] ... its decision has a dimension that the resolution of

the normal case does not carry... . [T]o overrule under fire in the absence

of the most compelling reason ... would subvert the Court's legitimacy

beyond any serious question.' 505 U. S., at 866-867.

Today, however, the widespread opposition to Bowers, a decision resolving an

issue as 'intensely divisive' as the issue in Roe, is offered as a reason in

favor of overruling it. See ante, at 15-16. Gone, too, is any 'enquiry' (of

the sort conducted in Casey) into whether the decision sought to be

overruled has 'proven 'unworkable,' ' Casey, supra, at 855.

Today's approach to stare decisis invites us to overrule an erroneously

decided precedent (including an 'intensely divisive' decision) if: (1) its

foundations have been 'eroded' by subsequent decisions, ante, at 15; (2) it

has been subject to 'substantial and continuing' criticism, ibid.; and (3)

it has not induced 'individual or societal reliance' that counsels against

overturning, ante, at 16. The problem is that Roe itself--which today's

majority surely has no disposition to overrule--satisfies these conditions

to at least the same degree as Bowers.

(1) A preliminary digressive observation with regard to the first factor:

The Court's claim that Planned Parenthood v. Casey, supra, 'casts some

doubt' upon the holding in Bowers (or any other case, for that matter) does

not withstand analysis. Ante, at 10. As far as its holding is concerned,

Casey provided a less expansive right to abortion than did Roe, which was

already on the books when Bowers was decided. And if the Court is referring

not to the holding of Casey, but to the dictum of its famed

sweet-mystery-of-life passage, ante, at 13 (' 'At the heart of liberty is

the right to define one's own concept of existence, of meaning, of the

universe, and of the mystery of human life' '): That 'casts some doubt' upon

either the totality of our jurisprudence or else (presumably the right

answer) nothing at all. I have never heard of a law that attempted to

restrict one's 'right to define' certain concepts; and if the passage calls

into question the government's power to regulate actions based on one's

self-defined 'concept of existence, etc.,' it is the passage that ate the

rule of law.

I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620

(1996), 'eroded' the 'foundations' of Bowers' rational-basis holding. See

Romer, supra, at 640-643 (SCALIA, J., dissenting).) But Roe and Casey have

been equally 'eroded' by Washington v. Glucksberg, 521 U. S. 702, 721

(1997), which held that only fundamental rights which are ' 'deeply rooted

in this Nation's history and tradition' ' qualify for anything other than

rational basis scrutiny under the doctrine of 'substantive due process.' Roe

and Casey, of course, subjected the restriction of abortion to heightened

scrutiny without even attempting to establish that the freedom to abort was

rooted in this Nation's tradition.

(2) Bowers, the Court says, has been subject to 'substantial and continuing

[criticism], disapproving of its reasoning in all respects, not just as to

its historical assumptions.' Ante, at 15. Exactly what those nonhistorical

criticisms are, and whether the Court even agrees with them, are left

unsaid, although the Court does cite two books. See ibid. (citing C. Fried,

Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84

(1991); R. Posner, Sex and Reason 341-350 (1992)). [FN1] Of course, Roe too

(and by extension Casey) had been (and still is) subject to unrelenting

criticism, including criticism from the two commentators cited by the Court

today. See Fried, supra, at 75 ('Roe was a prime example of twisted

judging'); Posner, supra, at 337 ('[The Court's] opinion in Roe ... fails to

measure up to professional expectations regarding judicial opinions');

Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995)

(describing the opinion in Roe as an 'embarrassing performanc[e]').

(3) That leaves, to distinguish the rock-solid, unamendable disposition of

Roe from the readily overrulable Bowers, only the third factor. '[T]here has

been,' the Court says, 'no individual or societal reliance on Bowers of the

sort that could counsel against overturning its holding ... .' Ante, at 16.

It seems to me that the 'societal reliance' on the principles confirmed in

Bowers and discarded today has been overwhelming. Countless judicial

decisions and legislative enactments have relied on the ancient proposition

that a governing majority's belief that certain sexual behavior is 'immoral

and unacceptable' constitutes a rational basis for regulation. See, e.g.,

Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in

upholding Alabama's prohibition on the sale of sex toys on the ground that

'[t]he crafting and safeguarding of public morality ... indisputably is a

legitimate government interest under rational basis scrutiny'); Milner v.

Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that

'[l]egislatures are permitted to legislate with regard to morality ...

rather than confined to preventing demonstrable harms'); Holmes v.

California Army National Guard 124 F. 3d 1126, 1136 (CA9 1997) (relying on

Bowers in upholding the federal statute and regulations banning from

military service those who engage in homosexual conduct); Owens v. State,

352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that

'a person has no constitutional right to engage in sexual intercourse, at

least outside of marriage'); Sherman v. Henry, 928 S. W. 2d 464, 469-473

(Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right

to commit adultery). We ourselves relied extensively on Bowers when we

concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that

Indiana's public indecency statute furthered 'a substantial government

interest in protecting order and morality,' ibid., (plurality opinion); see

also id., at 575 (SCALIA, J., concurring in judgment). State laws against

bigamy, same-sex marriage, adult incest, prostitution, masturbation,

adultery, fornication, bestiality, and obscenity are likewise sustainable

only in light of Bowers' validation of laws based on moral choices. Every

single one of these laws is called into question by today's decision; the

Court makes no effort to cabin the scope of its decision to exclude them

from its holding. See ante, at 11 (noting 'an emerging awareness that

liberty gives substantial protection to adult persons in deciding how to

conduct their private lives in matters pertaining to sex' (emphasis added)).

The impossibility of distinguishing homosexuality from other traditional

'morals' offenses is precisely why Bowers rejected the rational-basis

challenge. 'The law,' it said, 'is constantly based on notions of morality,

and if all laws representing essentially moral choices are to be invalidated

under the Due Process Clause, the courts will be very busy indeed.' 478 U.

S., at 196. [FN2]

What a massive disruption of the current social order, therefore, the

overruling of Bowers entails. Not so the overruling of Roe, which would

simply have restored the regime that existed for centuries before 1973, in

which the permissibility of and restrictions upon abortion were determined

legislatively State-by-State. Casey, however, chose to base its stare

decisis determination on a different 'sort' of reliance. '[P]eople,' it

said, 'have organized intimate relationships and made choices that define

their views of themselves and their places in society, in reliance on the

availability of abortion in the event that contraception should fail.' 505

U. S., at 856. This falsely assumes that the consequence of overruling Roe

would have been to make abortion unlawful. It would not; it would merely

have permitted the States to do so. Many States would unquestionably have

declined to prohibit abortion, and others would not have prohibited it

within six months (after which the most significant reliance interests would

have expired). Even for persons in States other than these, the choice would

not have been between abortion and childbirth, but between abortion nearby

and abortion in a neighboring State.

To tell the truth, it does not surprise me, and should surprise no one, that

the Court has chosen today to revise the standards of stare decisis set

forth in Casey. It has thereby exposed Casey's extraordinary deference to

precedent for the result-oriented expedient that it is.

Having decided that it need not adhere to stare decisis, the Court still

must establish that Bowers was wrongly decided and that the Texas statute,

as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on

liberty. So do laws prohibiting prostitution, recreational use of heroin,

and, for that matter, working more than 60 hours per week in a bakery. But

there is no right to 'liberty' under the Due Process Clause, though today's

opinion repeatedly makes that claim. Ante, at 6 ('The liberty protected by

the Constitution allows homosexual persons the right to make this choice');

ante, at 13 (' ' These matters ... are central to the liberty protected by

the Fourteenth Amendment' '); ante, at 17 ('Their right to liberty under the

Due Process Clause gives them the full right to engage in their conduct

without intervention of the government'). The Fourteenth Amendment expressly

allows States to deprive their citizens of 'liberty,' so long as 'due

process of law' is provided:

'No state shall ... deprive any person of life, liberty, or property,

without due process of law.' Amdt. 14 (emphasis added).

Our opinions applying the doctrine known as 'substantive due process' hold

that the Due Process Clause prohibits States from infringing fundamental

liberty interests, unless the infringement is narrowly tailored to serve a

compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We

have held repeatedly, in cases the Court today does not overrule, that only

fundamental rights qualify for this so-called 'heightened scrutiny'

protection--that is, rights which are ' 'deeply rooted in this Nation's

history and tradition,' ' ibid. See Reno v. Flores, 507 U. S. 292, 303

(1993) (fundamental liberty interests must be 'so rooted in the traditions

and conscience of our people as to be ranked as fundamental' (internal

quotation marks and citations omitted)); United States v. Salerno, 481 U. S.

739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122

(1989) ( '[W]e have insisted not merely that the interest denominated as a

'liberty' be 'fundamental' ... but also that it be an interest traditionally

protected by our society'); Moore v. East Cleveland, 431 U. S. 494, 503

(1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923)

(Fourteenth Amendment protects 'those privileges long recognized at common

law as essential to the orderly pursuit of happiness by free men' (emphasis

added)). [FN3] All other liberty interests may be abridged or abrogated

pursuant to a validly enacted state law if that law is rationally related to

a legitimate state interest.

Bowers held, first, that criminal prohibitions of homosexual sodomy are not

subject to heightened scrutiny because they do not implicate a 'fundamental

right' under the Due Process Clause, 478 U. S., at 191-194. Noting that

'[p]roscriptions against that conduct have ancient roots,' id., at 192, that

'[s]odomy was a criminal offense at common law and was forbidden by the laws

of the original 13 States when they ratified the Bill of Rights,' ibid., and

that many States had retained their bans on sodomy, id., at 193, Bowers

concluded that a right to engage in homosexual sodomy was not ' 'deeply

rooted in this Nation's history and tradition,' ' id., at 192.

The Court today does not overrule this holding. Not once does it describe

homosexual sodomy as a 'fundamental right' or a 'fundamental liberty

interest,' nor does it subject the Texas statute to strict scrutiny.

Instead, having failed to establish that the right to homosexual sodomy is '

'deeply rooted in this Nation's history and tradition,' ' the Court

concludes that the application of Texas's statute to petitioners' conduct

fails the rational-basis test, and overrules Bowers' holding to the

contrary, see id., at 196. 'The Texas statute furthers no legitimate state

interest which can justify its intrusion into the personal and private life

of the individual.' Ante, at 18.

I shall address that rational-basis holding presently. First, however, I

address some aspersions that the Court casts upon Bowers' conclusion that

homosexual sodomy is not a 'fundamental right'--even though, as I have said,

the Court does not have the boldness to reverse that conclusion.

III

The Court's description of 'the state of the law' at the time of Bowers only

confirms that Bowers was right. Ante, at 5. The Court points to Griswold v.

Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly

disclaimed any reliance on the doctrine of 'substantive due process,' and

grounded the so- called 'right to privacy' in penumbras of constitutional

provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S.

438 (1972), likewise had nothing to do with 'substantive due process'; it

invalidated a Massachusetts law prohibiting the distribution of

contraceptives to unmarried persons solely on the basis of the Equal

Protection Clause. Of course Eisenstadt contains well known dictum relating

to the 'right to privacy,' but this referred to the right recognized in

Griswold--a right penumbral to the specific guarantees in the Bill of

Rights, and not a 'substantive due process' right.

Roe v. Wade recognized that the right to abort an unborn child was a

'fundamental right' protected by the Due Process Clause. 410 U. S., at 155.

The Roe Court, however, made no attempt to establish that this right was '

'deeply rooted in this Nation's history and tradition' '; instead, it based

its conclusion that 'the Fourteenth Amendment's concept of personal liberty

... is broad enough to encompass a woman's decision whether or not to

terminate her pregnancy' on its own normative judgment that anti-abortion

laws were undesirable. See id., at 153. We have since rejected Roe's holding

that regulations of abortion must be narrowly tailored to serve a compelling

state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 (joint

opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (REHNQUIST,

C. J., concurring in judgment in part and dissenting in part)--and thus, by

logical implication, Roe's holding that the right to abort an unborn child

is a 'fundamental right.' See 505 U. S., at 843-912 (joint opinion of

O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a

'fundamental right' or a 'fundamental liberty interest').

After discussing the history of antisodomy laws, ante, at 7-10, the Court

proclaims that, 'it should be noted that there is no longstanding history in

this country of laws directed at homosexual conduct as a distinct matter,'

ante, at 7. This observation in no way casts into doubt the 'definitive

[historical] conclusion,' id., on which Bowers relied: that our Nation has a

longstanding history of laws prohibiting sodomy in general--regardless of

whether it was performed by same-sex or opposite-sex couples:

'It is obvious to us that neither of these formulations would extend a

fundamental right to homosexuals to engage in acts of consensual sodomy.

Proscriptions against that conduct have ancient roots. Sodomy was a criminal

offense at common law and was forbidden by the laws of the original 13

States when they ratified the Bill of Rights. In 1868, when the Fourteenth

Amendment was ratified, all but 5 of the 37 States in the Union had criminal

sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today,

24 States and the District of Columbia continue to provide criminal

penalties for sodomy performed in private and between consenting adults.

Against this background, to claim that a right to engage in such conduct is

'deeply rooted in this Nation's history and tradition' or 'implicit in the

concept of ordered liberty' is, at best, facetious.' 478 U. S., at 192-194

(citations and footnotes omitted; emphasis added).

It is (as Bowers recognized) entirely irrelevant whether the laws in our

long national tradition criminalizing homosexual sodomy were 'directed at

homosexual conduct as a distinct matter.' Ante, at 7. Whether homosexual

sodomy was prohibited by a law targeted at same-sex sexual relations or by a

more general law prohibiting both homosexual and heterosexual sodomy, the

only relevant point is that it was criminalized--which suffices to establish

that homosexual sodomy is not a right 'deeply rooted in our Nation's history

and tradition.' The Court today agrees that homosexual sodomy was

criminalized and thus does not dispute the facts on which Bowers actually

relied.

Next the Court makes the claim, again unsupported by any citations, that

'[l]aws prohibiting sodomy do not seem to have been enforced against

consenting adults acting in private.' Ante, at 8. The key qualifier here is

'acting in private'--since the Court admits that sodomy laws were enforced

against consenting adults (although the Court contends that prosecutions

were 'infrequent,' ante, at 9). I do not know what 'acting in private'

means; surely consensual sodomy, like heterosexual intercourse, is rarely

performed on stage. If all the Court means by 'acting in private' is 'on

private premises, with the doors closed and windows covered,' it is entirely

unsurprising that evidence of enforcement would be hard to come by. (Imagine

the circumstances that would enable a search warrant to be obtained for a

residence on the ground that there was probable cause to believe that

consensual sodomy was then and there occurring.) Surely that lack of

evidence would not sustain the proposition that consensual sodomy on private

premises with the doors closed and windows covered was regarded as a

'fundamental right,' even though all other consensual sodomy was

criminalized. There are 203 prosecutions for consensual, adult homosexual

sodomy reported in the West Reporting system and official state reporters

from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid

of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20

sodomy prosecutions and 4 executions during the colonial period. J. Katz,

Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual

sodomy is not a fundamental right 'deeply rooted in this Nation's history

and tradition' is utterly unassailable.

Realizing that fact, the Court instead says: '[W]e think that our laws and

traditions in the past half century are of most relevance here. These

references show an emerging awareness that liberty gives substantial

protection to adult persons in deciding how to conduct their private lives

in matters pertaining to sex.' Ante, at 11 (emphasis added). Apart from the

fact that such an 'emerging awareness' does not establish a 'fundamental

right,' the statement is factually false. States continue to prosecute all

sorts of crimes by adults 'in matters pertaining to sex': prostitution,

adult incest, adultery, obscenity, and child pornography. Sodomy laws, too,

have been enforced 'in the past half century,' in which there have been 134

reported cases involving prosecutions for consensual, adult, homosexual

sodomy. Gaylaw 375. In relying, for evidence of an 'emerging recognition,'

upon the American Law Institute's 1955 recommendation not to criminalize '

'consensual sexual relations conducted in private,' ' ante, at 11, the Court

ignores the fact that this recommendation was 'a point of resistance in most

of the states that considered adopting the Model Penal Code.' Gaylaw 159.

In any event, an 'emerging awareness' is by definition not 'deeply rooted in

this Nation's history and tradition[s],' as we have said 'fundamental right'

status requires. Constitutional entitlements do not spring into existence

because some States choose to lessen or eliminate criminal sanctions on

certain behavior. Much less do they spring into existence, as the Court

seems to believe, because foreign nations decriminalize conduct. The Bowers

majority opinion never relied on 'values we share with a wider

civilization,' ante, at 16, but rather rejected the claimed right to sodomy

on the ground that such a right was not ' 'deeply rooted in this Nation's

history and tradition,' ' 478 U. S., at 193-194 (emphasis added). Bowers'

rational-basis holding is likewise devoid of any reliance on the views of a

'wider civilization,' see id., at 196. The Court's discussion of these

foreign views (ignoring, of course, the many countries that have retained

criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous

dicta, however, since 'this Court ... should not impose foreign moods, fads,

or fashions on Americans.' Foster v. Florida, 537 U. S. 990, n. (2002)

(THOMAS, J., concurring in denial of certiorari).

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.

Finally, I turn to petitioners' equal-protection challenge, which no Member

of the Court save JUSTICE O'CONNOR, ante, at 1 (opinion concurring in

judgment), embraces: On its face § 21.06(a) applies equally to all persons.

Men and women, heterosexuals and homosexuals, are all subject to its

prohibition of deviate sexual intercourse with someone of the same sex. To

be sure, § 21.06 does distinguish between the sexes insofar as concerns the

partner with whom the sexual acts are performed: men can violate the law

only with other men, and women only with other women. But this cannot itself

be a denial of equal protection, since it is precisely the same distinction

regarding partner that is drawn in state laws prohibiting marriage with

someone of the same sex while permitting marriage with someone of the

opposite sex.

The objection is made, however, that the antimiscegenation laws invalidated

in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to

whites and blacks alike, and only distinguished between the races insofar as

the partner was concerned. In Loving, however, we correctly applied

heightened scrutiny, rather than the usual rational-basis review, because

the Virginia statute was 'designed to maintain White Supremacy.' Id., at 6,

11. A racially discriminatory purpose is always sufficient to subject a law

to strict scrutiny, even a facially neutral law that makes no mention of

race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to

discriminate against men or women as a class can be gleaned from the Texas

law, so rational- basis review applies. That review is readily satisfied

here by the same rational basis that satisfied it in Bowers--society's

belief that certain forms of sexual behavior are 'immoral and unacceptable,'

478 U. S., at 196. This is the same justification that supports many other

laws regulating sexual behavior that make a distinction based upon the

identity of the partner-- for example, laws against adultery, fornication,

and adult incest, and laws refusing to recognize homosexual marriage.

JUSTICE O'CONNOR argues that the discrimination in this law which must be

justified is not its discrimination with regard to the sex of the partner

but its discrimination with regard to the sexual proclivity of the principal

actor.

'While it is true that the law applies only to conduct, the conduct targeted

by this law is conduct that is closely correlated with being homosexual.

Under such circumstances, Texas' sodomy law is targeted at more than

conduct. It is instead directed toward gay persons as a class.' Ante, at 5.

Of course the same could be said of any law. A law against public nudity

targets 'the conduct that is closely correlated with being a nudist,' and

hence 'is targeted at more than conduct'; it is 'directed toward nudists as

a class.' But be that as it may. Even if the Texas law does deny equal

protection to 'homosexuals as a class,' that denial still does not need to

be justified by anything more than a rational basis, which our cases show is

satisfied by the enforcement of traditional notions of sexual morality.

JUSTICE O'CONNOR simply decrees application of 'a more searching form of

rational basis review' to the Texas statute. Ante, at 2. The cases she cites

do not recognize such a standard, and reach their conclusions only after

finding, as required by conventional rational-basis analysis, that no

conceivable legitimate state interest supports the classification at issue.

See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center,

Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno,

413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely

what her 'more searching form' of rational-basis review consists of. It must

at least mean, however, that laws exhibiting ' 'a ... desire to harm a

politically unpopular group,' ' ante, at 2, are invalid even though there

may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage

to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the

conclusory statement that 'preserving the traditional institution of

marriage' is a legitimate state interest. Ante, at 7. But 'preserving the

traditional institution of marriage' is just a kinder way of describing the

State's moral disapproval of same-sex couples. Texas's interest in § 21.06

could be recast in similarly euphemistic terms: 'preserving the traditional

sexual mores of our society.' In the jurisprudence JUSTICE O'CONNOR has

seemingly created, judges can validate laws by characterizing them as

'preserving the traditions of society' (good); or invalidate them by

characterizing them as 'expressing moral disapproval' (bad).

* * *

Today's opinion is the product of a Court, which is the product of a law-

profession culture, that has largely signed on to the so-called homosexual

agenda, by which I mean the agenda promoted by some homosexual activists

directed at eliminating the moral opprobrium that has traditionally attached

to homosexual conduct. I noted in an earlier opinion the fact that the

American Association of Law Schools (to which any reputable law school must

seek to belong) excludes from membership any school that refuses to ban from

its job- interview facilities a law firm (no matter how small) that does not

wish to hire as a prospective partner a person who openly engages in

homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today's opinion is the Court's grim

warning that the criminalization of homosexual conduct is 'an invitation to

subject homosexual persons to discrimination both in the public and in the

private spheres.' Ante, at 14. It is clear from this that the Court has

taken sides in the culture war, departing from its role of assuring, as

neutral observer, that the democratic rules of engagement are observed. Many

Americans do not want persons who openly engage in homosexual conduct as

partners in their business, as scoutmasters for their children, as teachers

in their children's schools, or as boarders in their home. They view this as

protecting themselves and their families from a lifestyle that they believe

to be immoral and destructive. The Court views it as 'discrimination' which

it is the function of our judgments to deter. So imbued is the Court with

the law profession's anti-anti-homosexual culture, that it is seemingly

unaware that the attitudes of that culture are not obviously 'mainstream';

that in most States what the Court calls 'discrimination' against those who

engage in homosexual acts is perfectly legal; that proposals to ban such

'discrimination' under Title VII have repeatedly been rejected by Congress,

see Employment Non- Discrimination Act of 1994, S. 2238, 103d Cong., 2d

Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess.

(1975); that in some cases such 'discrimination' is mandated by federal

statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the armed

forces of any service member who engages in or intends to engage in

homosexual acts); and that in some cases such 'discrimination' is a

constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640

(2000).

Let me be clear that I have nothing against homosexuals, or any other group,

promoting their agenda through normal democratic means. Social perceptions

of sexual and other morality change over time, and every group has the right

to persuade its fellow citizens that its view of such matters is the best.

That homosexuals have achieved some success in that enterprise is attested

to by the fact that Texas is one of the few remaining States that

criminalize private, consensual homosexual acts. But persuading one's fellow

citizens is one thing, and imposing one's views in absence of democratic

majority will is something else. I would no more require a State to

criminalize homosexual acts--or, for that matter, display any moral

disapprobation of them--than I would forbid it to do so. What Texas has

chosen to do is well within the range of traditional democratic action, and

its hand should not be stayed through the invention of a brand-new

'constitutional right' by a Court that is impatient of democratic change. It

is indeed true that 'later generations can see that laws once thought

necessary and proper in fact serve only to oppress,' ante, at 18; and when

that happens, later generations can repeal those laws. But it is the premise

of our system that those judgments are to be made by the people, and not

imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people

rather than to the courts is that the people, unlike judges, need not carry

things to their logical conclusion. The people may feel that their

disapprobation of homosexual conduct is strong enough to disallow homosexual

marriage, but not strong enough to criminalize private homosexual acts--and

may legislate accordingly. The Court today pretends that it possesses a

similar freedom of action, so that that we need not fear judicial imposition

of homosexual marriage, as has recently occurred in Canada (in a decision

that the Canadian Government has chosen not to appeal). See Halpern v.

Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow

Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its

opinion--after having laid waste the foundations of our rational-basis

jurisprudence--the Court says that the present case 'does not involve

whether the government must give formal recognition to any relationship that

homosexual persons seek to enter.' Ante, at 17. Do not believe it. More

illuminating than this bald, unreasoned disclaimer is the progression of

thought displayed by an earlier passage in the Court's opinion, which notes

the constitutional protections afforded to 'personal decisions relating to

marriage, procreation, contraception, family relationships, child rearing,

and education,' and then declares that '[p]ersons in a homosexual

relationship may seek autonomy for these purposes, just as heterosexual

persons do.' Ante, at 13 (emphasis added). Today's opinion dismantles the

structure of constitutional law that has permitted a distinction to be made

between heterosexual and homosexual unions, insofar as formal recognition in

marriage is concerned. If moral disapprobation of homosexual conduct is 'no

legitimate state interest' for purposes of proscribing that conduct, ante,

at 18; and if, as the Court coos (casting aside all pretense of neutrality),

'[w]hen sexuality finds overt expression in intimate conduct with another

person, the conduct can be but one element in a personal bond that is more

enduring,' ante, at 6; what justification could there possibly be for

denying the benefits of marriage to homosexual couples exercising '[t]he

liberty protected by the Constitution,' ibid.? Surely not the encouragement

of procreation, since the sterile and the elderly are allowed to marry. This

case 'does not involve' the issue of homosexual marriage only if one

entertains the belief that principle and logic have nothing to do with the

decisions of this Court. Many will hope that, as the Court comfortingly

assures us, this is so.

The matters appropriate for this Court's resolution are only three: Texas's

prohibition of sodomy neither infringes a 'fundamental right' (which the

Court does not dispute), nor is unsupported by a rational relation to what

the Constitution considers a legitimate state interest, nor denies the equal

protection of the laws. I dissent.

FN1. 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.

FN2. While the Court does not overrule Bowers' holding that homosexual

sodomy is not a 'fundamental right,' it is worth noting that the 'societal

reliance' upon that aspect of the decision has been substantial as well. See

10 U. S. C. § 654(b)(1) ('A member of the armed forces shall be separated

from the armed forces ... if ... the member has engaged in ... a homosexual

act or acts'); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002)

(relying on Bowers in rejecting a claimed fundamental right to commit

adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on

Bowers in rejecting a grandparent's claimed 'fundamental liberty interes

[t]' in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733,

739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed

'fundamental right' to on-demand HIV testing); Schowengerdt v. United

States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a

bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d

1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department

captain's claimed 'fundamental' interest in a promotion); Henne v. Wright,

904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim

that state law restricting surnames that could be given to children at birth

implicates a 'fundamental right'); Walls v. Petersburg, 895 F. 2d 188, 193

(CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge

to a police department questionnaire that asked prospective employees about

homosexual activity); High Tech Gays v. Defense Industrial Security

Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers'

holding that homosexual activity is not a fundamental right in rejecting--on

the basis of the rational-basis standard--an equal-protection challenge to

the Defense Department's policy of conducting expanded investigations into

backgrounds of gay and lesbian applicants for secret and top-secret security

clearance).

FN3. 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.

JUSTICE THOMAS, dissenting.

I join JUSTICE SCALIA's dissenting opinion. I write separately to note that

the law before the Court today 'is ... uncommonly silly.' Griswold v.

Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were

a member of the Texas Legislature, I would vote to repeal it. Punishing

someone for expressing his sexual preference through noncommercial

consensual conduct with another adult does not appear to be a worthy way to

expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not

empowered to help petitioners and others similarly situated. My duty,

rather, is to 'decide cases 'agreeably to the Constitution and laws of the

United States.' ' Id., at 530. And, just like Justice Stewart, I 'can find

[neither in the Bill of Rights nor any other part of the Constitution a]

general right of privacy,' ibid., or as the Court terms it today, the

'liberty of the person both in its spatial and more transcendent

dimensions,' ante, at 1.

[Zeppnote: Falwell’s sanity, too, is sometimes open to question]

FALWELL CONFIDENTIAL

DATE: June 26, 2003

FROM: Jerry Falwell

TEXAS SODOMY LAW OVERTURNED - A TRAGEDY FOR AMERICA

In a stunning reversal from its 1986 decision upholding the rights of states to enact anti-sodomy laws, the Supreme Court, by a 6-3 vote, ruled to overturn a Texas law that banned same-sex sodomy, saying that it violated a right to privacy.

Justice Anthony Kennedy wrote the opinion for the majority, citing a "right to privacy" in his decision. Joining him in the decision were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Sandra Day O'Connor agreed with the ruling, but differed in the rationale for her decision. (Sadly, four of the six Justices voting for the majority ... O'Connor, Souter, Kennedy and Stevens ... were appointed by Republican presidents.)

Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Justice Scalia, who chose to read his dissent aloud from the bench, said that the Court "has largely signed on to the so-called homosexual agenda."

"The court has taken sides in the culture war," Scalia said. He further noted that this ruling would invite laws allowing same-sex marriage.

"This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples," Scalia wrote.

Mathew Staver, President and General Counsel of Liberty Counsel called the decision a "wakeup call" to the majority of Americans who believe in traditional marriage.

"The goal of the radical homosexual agenda is to eliminate any and all laws regulating consensual sexual conduct," Staver said. "This would mean the elimination of laws banning polygamy as well as those that ban sex between adults and minors."

As recently as 1960, every state had an anti-sodomy law on the books. Today 13 states, including Texas, Kansas, Oklahoma, Missouri, Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia have laws prohibiting sodomy.