v.
TEXAS
No. 02-102
United States Supreme Court.
Argued March 26, 2003
Decided June 26, 2003
Syllabus [FN*]
FN* The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Timber & Lumber Co., 200 U. S.
321, 337.
Responding to a reported weapons disturbance
in a private residence, Houston police entered petitioner Lawrence's apartment
and saw him and another adult man, petitioner Garner, engaging in a private,
consensual sexual act. Petitioners were arrested and convicted of deviate
sexual intercourse in violation of a Texas
statute forbidding two persons of the same sex to engage in certain intimate
sexual conduct. In affirming, the State
Court of Appeals held, inter alia, that the statute was not
unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick,
478 U. S. 186, controlling on that point.
Held: The Texas statute making it a
crime for two persons of the same sex to engage in certain intimate sexual
conduct violates the Due Process Clause.
Pp. 3-18.
(a) Resolution of this case depends on
whether petitioners were free as adults to engage in private conduct in the
exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary
to reconsider its Bowers holding.
The Bowers Court's initial substantive statement--'The issue
presented is whether the Federal Constitution confers a fundamental right upon
homosexuals to engage in sodomy ... ,' 478 U. S., at 190--discloses the Court's
failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was
simply the right to engage in certain sexual conduct demeans the claim the
individual put forward, just as it would demean a married couple were it said
that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers
and here purport to do not more than prohibit a particular sexual act, their
penalties and purposes have more far-reaching consequences, touching upon the
most private human conduct, sexual behavior,
and in the most private of places, the home.
They seek to control a personal relationship that, whether or not
entitled to formal recognition in the law, is within the liberty of persons to
choose without being punished as criminals.
The liberty protected by the Constitution allows homosexual persons the
right to choose to enter upon relationships in the confines of their homes and
their own private lives and still retain their dignity as free persons. Pp. 3-6.
(b) Having misapprehended the liberty claim
presented to it, the Bowers Court stated that proscriptions against
sodomy have ancient roots. 478 U. S.,
at 192. It should be noted, however,
that there is no longstanding history in this country of laws directed at
homosexual conduct as a distinct matter. Early American sodomy laws were not
directed at homosexuals as such but instead sought to prohibit nonprocreative
sexual activity more generally, whether between men and women or men and
men. Moreover, early sodomy laws seem
not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved
predatory acts against those who could not or did not consent: relations
between men and minor girls or boys, between adults involving force, between
adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of
homosexual sodomy upon which Bowers placed such reliance is as
consistent with a general condemnation of nonprocreative sex as it is with an
established tradition of prosecuting acts
because of their homosexual character.
Far from possessing 'ancient roots,' ibid., American laws
targeting same-sex couples did not develop until the last third of the 20th
century. Even now, only nine States
have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers
are more complex than the majority opinion and the concurring opinion by Chief
Justice Burger there indicated. They are not without doubt and, at the very
least, are overstated. The Bowers Court
was, of course, making the broader point that for centuries there have been
powerful voices to condemn homosexual conduct as immoral, but this Court's
obligation is to define the liberty of all, not to mandate its own moral code, Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past
half century are most relevant here. They show an emerging awareness that
liberty gives substantial protection to adult persons in deciding how to
conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis,
523 U. S. 833, 857. Pp. 6-12.
(c) Bowers' deficiencies became even
more apparent in the years following its announcement. The 25 States with laws prohibiting the
conduct referenced in Bowers are reduced now to 13, of which 4 enforce
their laws only against homosexual conduct.
In those States, including Texas, that still proscribe sodomy (whether
for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults
acting in private. Casey, supra,
at 851--which confirmed that the Due Process Clause protects personal decisions
relating to marriage, procreation, contraception, family relationships, child
rearing, and education--and Romer v. Evans, 517 U. S. 620, 624--which
struck down class-based legislation directed at homosexuals--cast Bowers'
holding into even more doubt. The
stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor
misdemeanor, it remains a criminal offense with all that imports for the
dignity of the persons charged, including notation of convictions on their
records and on job application forms, and registration as sex offenders under
state law. Where a case's foundations
have sustained serious erosion, criticism from other sources is of greater
significance. In the United States,
criticism of Bowers has been substantial and continuing, disapproving of
its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on
values shared with a wider civilization, the case's reasoning and holding have
been rejected by the European Court of Human Rights, and that other nations
have taken action consistent with an affirmation of the protected right of
homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this
country the governmental interest in circumscribing personal choice is somehow
more legitimate or urgent. Stare
decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828.
Bowers' holding has not induced detrimental reliance of the sort
that could counsel against overturning it once there are compelling reasons to
do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the
precedents before and after it contradict its central holding. Pp. 12-17.
(d) Bowers' rationale does not
withstand careful analysis. In his
dissenting opinion in Bowers JUSTICE STEVENS concluded that (1) the fact
a State's governing majority has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the
practice, and (2) individual decisions concerning the intimacies of physical
relationships, even when not intended to produce offspring, are a form of
'liberty' protected by due process.
That analysis should have controlled Bowers, and it controls
here. Bowers was not correct
when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons
who might be injured or coerced, those who might not easily refuse consent, or
public conduct or prostitution. It does
involve two adults who, with full and mutual consent, engaged in sexual
practices common to a homosexual lifestyle. Petitioners' right to liberty under
the Due Process Clause gives them the full right to engage in private conduct
without government intervention. Casey,
supra, at 847. The Texas statute
furthers no legitimate state interest which can justify its intrusion into the
individual's personal and private life.
Pp. 17-18.
41
S. W. 3d 349, reversed and remanded.
KENNEDY, J., delivered the opinion of the
Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in
the judgment. SCALIA, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined. THOMAS, J., filed a dissenting opinion.
ON WRIT OF 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, resided.
The right of the police to enter does not seem to have been
questioned. The officers observed
Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in
custody over night, and charged and convicted before a Justice of the Peace.
The complaints described their crime as
'deviate sexual intercourse, namely anal sex, with a member of the same sex
(man).' App. to Pet. for Cert. 127a,
139a. The applicable state law is Tex.
Penal Code Ann. § 21.06(a) (2003). It provides: 'A person commits an offense if
he engages in deviate sexual intercourse with another individual of the same
sex.' The statute defines '[d]eviate
sexual intercourse' as follows:
'(A) any contact between any part of the genitals of one
person and the mouth or anus of another person; or
'(B) the penetration of the genitals or the anus of another
person with an object.' § 21.01(1).
The petitioners exercised their right to a
trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal
Protection Clause of the Fourteenth Amendment and of a like provision of the
Texas Constitution. Tex. Const., Art.
1, § 3a. Those contentions were rejected.
The petitioners, having entered a plea of nolo contendere, were
each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a- 110a.
The Court of Appeals for the Texas Fourteenth
District considered the petitioners' federal constitutional arguments under
both the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. After hearing the case en
banc the court, in a divided opinion, rejected the constitutional arguments and
affirmed the convictions. 41 S. W. 3d
349 (Tex. App. 2001). The majority
opinion indicates that the Court of Appeals considered our decision in Bowers
v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due
process aspect of the case. Bowers
then being authoritative, this was proper.
We granted certiorari, 537 U. S. 1044 (2002),
to consider three questions:
'1. Whether Petitioners' criminal convictions under the
Texas 'Homosexual Conduct' law--which criminalizes sexual intimacy by same-sex
couples, but not identical behavior by different-sex couples--violate the
Fourteenth Amendment guarantee of equal protection of laws?
'2. Whether Petitioners' criminal convictions for adult
consensual sexual intimacy in the home violate their vital interests in liberty
and privacy protected by the Due Process Clause of the Fourteenth Amendment?
'3. Whether Bowers v. Hardwick, 478 U. S. 186
(1986), should be overruled?' Pet. for Cert. i.
The petitioners were adults at the time of the alleged
offense. Their conduct was in private
and consensual.
II
We conclude the case should be resolved by
determining whether the petitioners were free as adults to engage in the
private conduct in the exercise of their liberty under the Due Process Clause
of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's
holding in Bowers.
There are broad statements of the substantive
reach of liberty under the Due Process Clause in earlier cases, including Pierce
v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska,
262 U. S. 390 (1923); but the most pertinent beginning point is our decision in
Griswold v. Connecticut, 381 U. S. 479 (1965).
In Griswold the Court invalidated a
state law prohibiting the use of drugs or devices of contraception and
counseling or aiding and abetting the use of contraceptives. The Court described the protected interest
as a right to privacy and placed emphasis on the marriage relation and the
protected space of the marital bedroom.
Id., at 485.
After Griswold it was established that
the right to make certain decisions regarding sexual conduct extends beyond the
marital relationship. In Eisenstadt
v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives
to unmarried persons. The case was
decided under the Equal Protection Clause, id., at 454; but with respect
to unmarried persons, the Court went on to state the fundamental proposition
that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of
Appeals finding the law to be in conflict with fundamental human rights, and it
followed with this statement of its own:
'It is true that in Griswold the right of privacy in
question inhered in the marital relationship... . If the right of privacy means
anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.' Id., at 453.
The opinions in Griswold and Eisenstadt
were part of the background for the decision in Roe v. Wade, 410 U. S.
113 (1973). As is well known, the case
involved a challenge to the Texas law prohibiting abortions, but the laws of
other States were affected as well.
Although the Court held the woman's rights were not absolute, her right
to elect an abortion did have real and substantial protection as an exercise of
her liberty under the Due Process Clause.
The Court cited cases that protect spatial freedom and cases that go
well beyond it. Roe recognized
the right of a woman to make certain fundamental decisions affecting her
destiny and confirmed once more that the protection of liberty under the Due
Process Clause has a substantive dimension of fundamental significance in defining the rights of the
person.
In Carey v. Population Services Int'l,
431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or
distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the
Court, the law was invalidated. Both Eisenstadt
and Carey, as well as the holding and rationale in Roe, confirmed
that the reasoning of Griswold could not be confined to the protection
of rights of married adults. This was
the state of the law with respect to some of the most relevant cases when the
Court considered Bowers v. Hardwick.
The facts in Bowers had some
similarities to the instant case. A
police officer, whose right to enter seems not to have been in question,
observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with
another adult male. The conduct was in
violation of a Georgia statute making it a criminal offense to engage in
sodomy. One difference between the two
cases is that the Georgia statute prohibited the conduct whether or not the
participants were of the same sex, while the Texas statute, as we have seen,
applies only to participants of the same sex.
Hardwick was not prosecuted, but he brought an action in federal court
to declare the state statute invalid.
He alleged he was a practicing homosexual and that the criminal
prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White,
sustained the Georgia law. Chief
Justice Burger and Justice Powell joined the
opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J.,
joined by Brennan, Marshall, and STEVENS, JJ.); id., at 214 (opinion of
STEVENS, J., joined by Brennan and Marshall, JJ.).
The Court began its substantive discussion in
Bowers as follows: 'The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in sodomy
and hence invalidates the laws of the many States that still make such conduct
illegal and have done so for a very long time.' Id., at 190. That
statement, we now conclude, discloses the Court's own failure to appreciate the
extent of the liberty at stake. To say
that the issue in Bowers was simply the right to engage in certain
sexual conduct demeans the claim the individual put forward, just as it would
demean a married couple were it to be said marriage is simply about the right
to have sexual intercourse. The laws
involved in Bowers and here are, to be sure, statutes that purport to do
no more than prohibit a particular sexual act.
Their penalties and purposes, though, have more far-reaching
consequences, touching upon the most private human conduct, sexual behavior,
and in the most private of places, the home.
The statutes do seek to control a personal relationship that, whether or
not entitled to formal recognition in the law, is within the liberty of persons
to choose without being punished as criminals.
This, as a general rule, should counsel against
attempts by the State, or a court, to define
the meaning of the relationship or to set its boundaries absent injury to a
person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter
upon this relationship in the confines of their homes and their own private
lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is
more enduring. The liberty protected by
the Constitution allows homosexual persons the right to make this choice.
Having misapprehended the claim of liberty
there presented to it, and thus stating the claim to be whether there is a
fundamental right to engage in consensual sodomy, the Bowers Court said:
'Proscriptions against that conduct have ancient roots.' Id., at 192. In academic writings, and in many of the
scholarly amicus briefs filed to assist the Court in this case, there
are fundamental criticisms of the historical premises relied upon by the
majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for
American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for
Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt
to reach a definitive historical judgment, but the following considerations
counsel against adopting the definitive conclusions upon which Bowers
placed such reliance.
At the outset it should be noted that there
is no longstanding history in this country
of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were
prohibitions of sodomy derived from the English criminal laws passed in the first
instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations
between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92
Eng. Rep. 774, 775 (K. B. 1718) (interpreting 'mankind' in Act of 1533 as
including women and girls).
Nineteenth-century commentators similarly read American sodomy, buggery,
and crime-against-nature statutes as criminalizing certain relations between
men and women and between men and men. See, e.g., 2 J. Bishop, Criminal
Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R.
Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law
of Crimes § 203 (2d ed. 1893). The
absence of legal prohibitions focusing on homosexual conduct may be explained
in part by noting that according to some scholars the concept of the homosexual
as a distinct category of person did not emerge until the late 19th
century. See, e.g., J. Katz, The
Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate
Matters: A History of Sexuality in America 121 (2d ed. 1997) (' The modern
terms homosexuality and heterosexuality do not apply to an era
that had not yet articulated these distinctions'). Thus early American sodomy laws were not directed at homosexuals
as such but instead sought to prohibit nonprocreative sexual activity more
generally. This does not suggest
approval of homosexual conduct. It does tend to show that this particular
form of conduct was not thought of as a separate category from like conduct
between heterosexual persons.
Laws prohibiting sodomy do not seem to have
been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions
and convictions for which there are surviving records were for predatory acts
against those who could not or did not consent, as in the case of a minor or
the victim of an assault. As to these,
one purpose for the prohibitions was to ensure there would be no lack of
coverage if a predator committed a sexual assault that did not constitute rape
as defined by the criminal law. Thus
the model sodomy indictments presented in a 19th-century treatise, see 2
Chitty, supra, at 49, addressed the predatory acts of an adult man
against a minor girl or minor boy.
Instead of targeting relations between consenting adults in private,
19th-century sodomy prosecutions typically involved relations between men and
minor girls or minor boys, relations between adults involving force, relations
between adults implicating disparity in status, or relations between men and
animals.
To the extent that there were any
prosecutions for the acts in question, 19th- century evidence rules imposed a
burden that would make a conviction more difficult to obtain even taking into
account the problems always inherent in prosecuting consensual acts committed
in private. Under then-prevailing standards, a man could not be convicted of
sodomy based upon testimony of a consenting partner, because the partner was
considered an accomplice. A partner's
testimony, however, was admissible if he or she had not consented to the act or
was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1
F. Wharton, Criminal Law 512 (8th ed. 1880).
The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it
difficult to say that society approved of a rigorous and systematic punishment
of the consensual acts committed in private and by adults. The longstanding
criminal prohibition of homosexual sodomy upon which the Bowers decision
placed such reliance is as consistent with a general condemnation of
nonprocreative sex as it is with an established tradition of prosecuting acts because
of their homosexual character.
The policy of punishing consenting adults for
private acts was not much discussed in the early legal literature. We can infer that one reason for this was
the very private nature of the conduct.
Despite the absence of prosecutions, there may have been periods in
which there was public criticism of homosexuals as such and an insistence that
the criminal laws be enforced to discourage their practices. But far from possessing 'ancient roots,' Bowers,
478 U. S., at 192, American laws targeting same-sex couples did not develop
until the last third of the 20th century.
The reported decisions concerning the
prosecution of consensual, homosexual sodomy between adults for the years
1880-1995 are not always clear in the details, but a significant number
involved conduct in a public place. See
Brief for American Civil Liberties Union et al. as Amici Curiae 14-15,
and n. 18.
It was not until the 1970's that any State
singled out same-sex relations for criminal prosecution, and only nine States
have done so. See 1977 Ark. Gen. Acts
no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p.
687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch.
591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105
(Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex
couples). Post-Bowers even some
of these States did not adhere to the policy of suppressing homosexual
conduct. Over the course of the last
decades, States with same-sex prohibitions have moved toward abolishing
them. See, e.g., Jegley v.
Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283
Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250
(Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992);
see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).
In summary, the historical grounds relied
upon in Bowers are more complex than the majority opinion and the concurring
opinion by Chief Justice Burger indicate.
Their historical premises are not without doubt and, at the very least,
are overstated.
It
must be acknowledged, of course, that the Court in Bowers was making the
broader point that for centuries there have been powerful voices to condemn
homosexual conduct as immoral. The
condemnation has been shaped by religious beliefs, conceptions of right and
acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns
but profound and deep convictions accepted as ethical and moral principles to
which they aspire and which thus determine the course of their lives. These considerations do not answer the
question before us, however. The issue
is whether the majority may use the power of the State to enforce these views
on the whole society through operation of the criminal law. 'Our obligation is to define the liberty of
all, not to mandate our own moral code.'
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833,
850 (1992).
Chief Justice Burger joined the opinion for
the Court in Bowers and further explained his views as follows:
'Decisions of individuals relating to homosexual conduct have been subject to
state intervention throughout the history of Western civilization. Condemnation of those practices is firmly
rooted in Judeao-Christian moral and ethical standards.' 478 U. S., at 196. As with Justice White's
assumptions about history, scholarship casts some doubt on the sweeping nature
of the statement by Chief Justice Burger as it pertains to private homosexual
conduct between consenting adults. See,
e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631,
656. In all events we think that our laws and traditions in the past
half century are of most relevance here.
These references show an emerging awareness that liberty gives
substantial protection to adult persons in deciding how to conduct their
private lives in matters pertaining to sex.
'[H]istory and tradition are the starting point but not in all cases the
ending point of the substantive due process inquiry.' County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998)
(KENNEDY, J., concurring).
This emerging recognition should have been
apparent when Bowers was decided.
In 1955 the American Law Institute promulgated the Model Penal Code and
made clear that it did not recommend or provide for 'criminal penalties for
consensual sexual relations conducted in private.' ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds:
(1) The prohibitions undermined respect for the law by penalizing conduct many
people engaged in; (2) the statutes regulated private conduct not harmful to
others; and (3) the laws were arbitrarily enforced and thus invited the danger
of blackmail. ALI, Model Penal Code,
Commentary 277-280 (Tent. Draft No. 4, 1955).
In 1961 Illinois changed its laws to conform to the Model Penal Code. Other
States soon followed. Brief for Cato
Institute as Amicus Curiae 15-16.
In Bowers the Court referred to the
fact that before 1961 all 50 States had outlawed sodomy, and that at the time
of the Court's decision 24 States and the District of Columbia had sodomy laws.
478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were
being ignored, however. Georgia, for instance, had not sought to enforce its
law for decades. Id., at
197-198, n. 2 ('The history of nonenforcement suggests the moribund character
today of laws criminalizing this type of private, consensual conduct').
The sweeping references by Chief Justice
Burger to the history of Western civilization and to Judeo-Christian moral and
ethical standards did not take account of other authorities pointing in an
opposite direction. A committee advising
the British Parliament recommended in 1957 repeal of laws punishing homosexual
conduct. The Wolfenden Report: Report
of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those
recommendations 10 years later. Sexual
Offences Act 1967, § 1.
Of even more importance, almost five years
before Bowers was decided the European Court of Human Rights considered
a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland
alleged he was a practicing homosexual who desired to engage in consensual
homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his
home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the
conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur.
Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that are
members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers
that the claim put forward was insubstantial in our Western civilization.
In our own constitutional system the
deficiencies in Bowers became
even more apparent in the years following its announcement. The 25 States with laws prohibiting the
relevant conduct referenced in the Bowers decision are reduced now to
13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still
proscribed, whether for same-sex or heterosexual conduct, there is a pattern of
nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as
of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941,
943.
Two principal cases decided after Bowers
cast its holding into even more doubt.
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833
(1992), the Court reaffirmed the substantive force of the liberty protected by
the Due Process Clause. The Casey
decision again confirmed that our laws and tradition afford constitutional
protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, we stated as
follows:
' These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty
protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define
the attributes of personhood were they formed under compulsion of the
State.' Ibid.
Persons in a homosexual relationship may seek
autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny
them this right.
The second post-Bowers case of
principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based
legislation directed at homosexuals as a violation of the Equal Protection
Clause. Romer invalidated an
amendment to Colorado's constitution which named as a solitary class persons
who were homosexuals, lesbians, or bisexual either by 'orientation, conduct,
practices or relationships,' id., at 624 (internal quotation marks
omitted), and deprived them of protection under state antidiscrimination
laws. We concluded that the provision
was 'born of animosity toward the class of persons affected' and further that
it had no rational relation to a legitimate governmental purpose. Id., at 634.
As an alternative argument in this case,
counsel for the petitioners and some amici contend that Romer
provides the basis for declaring the Texas statute invalid under the Equal
Protection Clause. That is a tenable
argument, but we conclude the instant case
requires us to address whether Bowers itself has continuing
validity. Were we to hold the statute
invalid under the Equal Protection Clause some might question whether a
prohibition would be valid if drawn differently, say, to prohibit the conduct
both between same-sex and different-sex participants.
Equality of treatment and the due process
right to demand respect for conduct protected by the substantive guarantee of
liberty are linked in important respects, and a decision on the latter point
advances both interests. If protected
conduct is made criminal and the law which does so remains unexamined for its
substantive validity, its stigma might remain even if it were not enforceable
as drawn for equal protection reasons.
When homosexual conduct is made criminal by the law of the State, that
declaration in and of itself is an invitation to subject homosexual persons to
discrimination both in the public and in the private spheres. The central holding of Bowers has
been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the
lives of homosexual persons.
The stigma this criminal statute imposes,
moreover, is not trivial. The offense, to
be sure, is but a class C misdemeanor, a minor offense in the Texas legal
system. Still, it remains a criminal
offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record
the history of their criminal convictions.
Just this Term we rejected various challenges
to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. __ (2003); Connecticut
Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an
adult for private, consensual homosexual conduct under the statute here in
question the convicted person would come within the registration laws of a
least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho
Code § § 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann., § §
15:540-15:549 (West 2003); Miss. Code Ann. § § 45-33-21 to 45-33-57 (Lexis
2003); S. C. Code Ann. § § 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of
the punishment and the state-sponsored condemnation attendant to the criminal
prohibition. Furthermore, the Texas
criminal conviction carries with it the other collateral consequences always
following a conviction, such as notations on job application forms, to mention
but one example.
The foundations of Bowers have
sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened,
criticism from other sources is of greater significance. In the United States criticism of Bowers
has been substantial and continuing, disapproving of its reasoning in all
respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan
Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350
(1992). The courts of five different States have declined to follow
it in interpreting provisions in their own state constitutions parallel to the
Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado,
349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510
S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112
(1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth
v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
To the extent Bowers relied on values
we share with a wider civilization, it should be noted that the reasoning and
holding in Bowers have been rejected elsewhere. The European Court of Human Rights has
followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom,
App. No. 00044787/98, ¶ ;56
(Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R.
(1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action
consistent with an affirmation of the protected right of homosexual adults to
engage in intimate, consensual conduct.
See Brief for Mary Robinson et al. as Amici Curiae 11-12. The
right the petitioners seek in this case has been accepted as an integral part
of human freedom in many other countries.
There has been no showing that in this country the governmental interest
in circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is
essential to the respect accorded to the judgments of the Court and to the
stability of the law. It is not,
however, an inexorable command. Payne v.
Tennessee, 501 U. S. 808, 828 (1991) ('Stare decisis is not an inexorable
command; rather, it 'is a principle of policy and not a mechanical formula of
adherence to the latest decision' ') (quoting Helvering v. Hallock, 309
U. S. 106, 119 (1940))). In Casey
we noted that when a Court is asked to overrule a precedent recognizing a
constitutional liberty interest, individual or societal reliance on the
existence of that liberty cautions with particular strength against reversing
course. 505 U. S., at 855- 856; see
also id., at 844 ('Liberty finds no refuge in a jurisprudence of doubt
'). The holding in Bowers,
however, has not induced detrimental reliance comparable to some instances
where recognized individual rights are involved. Indeed, there has been no
individual or societal reliance on Bowers of the sort that could counsel
against overturning its holding once there are compelling reasons to do
so. Bowers itself causes
uncertainty, for the precedents before and after its issuance contradict its
central holding.
The rationale of Bowers does not
withstand careful analysis. In his
dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions:
'Our prior cases make two propositions abundantly
clear. First, the fact that the
governing majority in a State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the
practice; neither history nor tradition could save a law prohibiting
miscegenation from constitutional attack.
Second, individual decisions by married
persons, concerning the intimacies of their physical relationship, even when
not intended to produce offspring, are a form of 'liberty' protected by the Due
Process Clause of the Fourteenth Amendment.
Moreover, this protection extends to intimate choices by unmarried as
well as married persons.' 478 U. S., at
216 (footnotes and citations omitted).
JUSTICE STEVENS' analysis, in our view,
should have been controlling in Bowers and should control here.
Bowers was not correct when it was
decided, and it is not correct today.
It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve
minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where consent
might not easily be refused. It does
not involve public conduct or prostitution.
It does not involve whether the government must give formal recognition
to any relationship that homosexual persons seek to enter. The case does involve two adults who, with
full and mutual consent from each other, engaged in sexual practices common to
a homosexual lifestyle. The petitioners
are entitled to respect for their private lives. The State cannot demean their existence or control their destiny
by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention of the
government. 'It is a promise of the Constitution that there is
a realm of personal liberty which the government may not enter.' Casey, supra, at 847. The Texas statute furthers no legitimate
state interest which can justify its intrusion into the personal and private
life of the individual.
Had those who drew and ratified the Due
Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the
components of liberty in its manifold possibilities, they might have been more
specific. They did not presume to have
this insight. They knew times can blind
us to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can
invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the
Texas Fourteenth District is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
The Court today overrules Bowers v.
Hardwick, 478 U. S. 186 (1986). I
joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that
Texas' statute banning same-sex sodomy is unconstitutional. See Tex.
Penal Code Ann. § 21.06 (2003). Rather
than relying on the substantive component of the Fourteenth Amendment's Due
Process Clause, as the Court does, I base my conclusion on the Fourteenth
Amendment's Equal Protection Clause.
The Equal Protection Clause of the Fourteenth
Amendment 'is essentially a direction that all persons similarly situated
should be treated alike.' Cleburne v. Cleburne Living Center, Inc., 473
U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216
(1982). Under our rational basis
standard of review, 'legislation is presumed to be valid and will be sustained
if the classification drawn by the statute is rationally related to a
legitimate state interest.' Cleburne
v. Cleburne Living Center, supra, at 440; see also Department of
Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans,
517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12
(1992).
Laws such as economic or tax legislation that
are scrutinized under rational basis review normally pass constitutional
muster, since 'the Constitution presumes that even improvident decisions will
eventually be rectified by the democratic processes.' Cleburne v. Cleburne Living Center, supra, at 440;
see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson
v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that
some objectives, such as 'a bare ... desire to harm a politically unpopular
group,' are not legitimate state interests.
Department of Agriculture v.
Moreno, supra, at 534. See
also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer
v. Evans, supra, at 632.
When a law exhibits such a desire to harm a politically unpopular group,
we have applied a more searching form of rational basis review to strike down
such laws under the Equal Protection Clause.
We have been most likely to apply rational
basis review to hold a law unconstitutional under the Equal Protection Clause
where, as here, the challenged legislation inhibits personal
relationships. In Department of
Agriculture v. Moreno, for example, we held that a law preventing those
households containing an individual unrelated to any other member of the
household from receiving food stamps violated equal protection because the
purpose of the law was to ' 'discriminate against hippies.' ' 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud
was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S.
438, 447-455 (1972), we refused to sanction a law that discriminated between
married and unmarried persons by prohibiting the distribution of contraceptives
to single persons. Likewise, in Cleburne
v. Cleburne Living Center, supra, we held that it was irrational for a
State to require a home for the mentally disabled to obtain a special use
permit when other residences--like fraternity houses and apartment
buildings--did not have to obtain such a
permit. And in Romer v. Evans, we
disallowed a state statute that 'impos[ed] a broad and undifferentiated
disability on a single named group'--specifically, homosexuals. 517 U. S., at 632. The dissent apparently agrees that if these cases have stare
decisis effect, Texas' sodomy law would not pass scrutiny under the Equal
Protection Clause, regardless of the type of rational basis review that we
apply. See post, at 17-18
(opinion of SCALIA, J.).
The statute at issue here makes sodomy a
crime only if a person 'engages in deviate sexual intercourse with another
individual of the same sex.' Tex. Penal
Code Ann. § 21.06(a) (2003). Sodomy
between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct
differently based solely on the participants.
Those harmed by this law are people who have a same-sex sexual
orientation and thus are more likely to engage in behavior prohibited by §
21.06.
The Texas statute makes homosexuals unequal
in the eyes of the law by making particular conduct--and only that
conduct--subject to criminal sanction.
It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d
941, 943 (Tex. 1994) (noting in 1994 that § 21.06 'has not been, and in all
probability will not be, enforced against private consensual conduct between
adults'). This case shows, however,
that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners
in this case was relatively minor, the consequences of conviction are not. As the Court notes, see ante, at 15,
petitioners' convictions, if upheld, would disqualify them from or restrict their
ability to engage in a variety of professions, including medicine, athletic
training, and interior design. See, e.g.,
Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251
(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of
four States, their convictions would require them to register as sex offenders
to local law enforcement. See, e.g.,
Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum.
Supp. 2003); Miss. Code Ann. § 45-33- 25 (West 2003); S. C. Code Ann. §
23-3-430 (West Cum. Supp. 2002); cf. ante, at 15.
And the effect of Texas' sodomy law is not
just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as
criminals, thereby making it more difficult for homosexuals to be treated in
the same manner as everyone else.
Indeed, Texas itself has previously acknowledged the collateral effects
of the law, stipulating in a prior challenge to this action that the law
'legally sanctions discrimination against [homosexuals] in a variety of ways
unrelated to the criminal law,' including in the areas of 'employment, family
issues, and housing.' State v. Morales, 826 S. W. 2d 201, 203 (Tex. App.
1992).
Texas attempts to justify its law, and the
effects of the law, by arguing that the statute satisfies rational basis review
because it furthers the legitimate governmental interest of the promotion of
morality. In Bowers, we held
that a state law criminalizing sodomy as applied to homosexual couples did not
violate substantive due process. We
rejected the argument that no rational basis existed to justify the law,
pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was
whether the substantive component of the Due Process Clause protected a right
to engage in homosexual sodomy. Id.,
at 188, n. 2. Bowers did not
hold that moral disapproval of a group is a rational basis under the Equal
Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is
not punished.
This case raises a different issue than Bowers:
whether, under the Equal Protection Clause, moral disapproval is a legitimate
state interest to justify by itself a statute that bans homosexual sodomy, but
not heterosexual sodomy. It is not.
Moral disapproval of this group, like a bare desire to harm the group,
is an interest that is insufficient to satisfy rational basis review under the
Equal Protection Clause. See, e.g.,
Department of Agriculture v. Moreno, supra, at 534; Romer v.
Evans, 517 U. S., at 634-635.
Indeed, we have never held that moral
disapproval, without any other asserted state interest, is a sufficient
rationale under the Equal Protection Clause to justify a law that discriminates
among groups of persons.
Moral disapproval of a group cannot be a
legitimate governmental interest under the Equal Protection Clause because
legal classifications must not be 'drawn for the purpose of disadvantaging the
group burdened by the law.' Id.,
at 633. Texas' invocation of moral
disapproval as a legitimate state interest proves nothing more than Texas'
desire to criminalize homosexual sodomy.
But the Equal Protection Clause prevents a State from creating 'a
classification of persons undertaken for its own sake.' Id., at 635. And because Texas so rarely enforces its
sodomy law as applied to private, consensual acts, the law serves more as a
statement of dislike and disapproval against homosexuals than as a tool to stop
criminal behavior. The Texas sodomy law
'raise[s] the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected.' Id., at 634.
Texas argues, however, that the sodomy law
does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only
against homosexual conduct. While it is
true that the law applies only to conduct, the conduct targeted by this law is
conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law
is targeted at more than conduct. It is instead directed toward gay persons as
a class. 'After all, there can hardly
be more palpable discrimination against a class than making the conduct that
defines the class criminal.' Id., at 641 (SCALIA, J., dissenting)
(internal quotation marks omitted).
When a State makes homosexual conduct criminal, and not 'deviate sexual
intercourse' committed by persons of different sexes, 'that declaration in and
of itself is an invitation to subject homosexual persons to discrimination both
in the public and in the private spheres.'
Ante, at 14.
Indeed, Texas law confirms that the sodomy
statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se
because the word 'homosexual' 'impute[s] the commission of a crime.' Plumley
v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas
law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980).
The State has admitted that because of the sodomy law, being homosexual
carries the presumption of being a criminal.
See State v. Morales, 826 S. W. 2d, at 202-203 ('[T]he statute
brands lesbians and gay men as criminals and thereby legally sanctions
discrimination against them in a variety of ways unrelated to the criminal
law'). Texas' sodomy law therefore
results in discrimination against homosexuals as a class in an array of areas
outside the criminal law. See ibid.
In Romer v. Evans, we refused to sanction a law that singled out homosexuals 'for disfavored legal status.' 517 U. S., at 633. The same is true here.
The Equal Protection Clause ' 'neither knows nor tolerates classes among
citizens.' ' Id., at 623
(quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J.
dissenting)).
A State can of course assign certain
consequences to a violation of its criminal law. But the State cannot single out one identifiable class of
citizens for punishment that does not apply to everyone else, with moral
disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects
homosexuals to 'a lifelong penalty and stigma.
A legislative classification that threatens the creation of an
underclass ... cannot be reconciled with' the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239
(Powell, J., concurring).
Whether a sodomy law that is neutral both in
effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would
violate the substantive component of the Due Process Clause is an issue that
need not be decided today. I am
confident, however, that so long as the Equal Protection Clause requires a
sodomy law to apply equally to the private consensual conduct of homosexuals
and heterosexuals alike, such a law would not long stand in our democratic
society. In the words of Justice
Jackson:
'The framers of the Constitution knew, and we should not
forget today, that there is no more
effective practical guaranty against arbitrary and unreasonable government than
to require that the principles of law which officials would impose upon a
minority be imposed generally.
Conversely, nothing opens the door to arbitrary action so effectively as
to allow those officials to pick and choose only a few to whom they will apply
legislation and thus to escape the political retribution that might be visited
upon them if larger numbers were affected.' Railway Express Agency, Inc. v.
New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).
That this law as applied to private,
consensual conduct is unconstitutional under the Equal Protection Clause does
not mean that other laws distinguishing between heterosexuals and homosexuals
would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as
national security or preserving the traditional institution of marriage. Unlike
the moral disapproval of same-sex relations--the asserted state interest in
this case--other reasons exist to promote the institution of marriage beyond
mere moral disapproval of an excluded group.
A law branding one class of persons as
criminal solely based on the State's moral disapproval of that class and the
conduct associated with that class runs contrary to the values of the
Constitution and the Equal Protection Clause, under any standard of
review. I therefore concur in the
Court's judgment that Texas' sodomy law
banning 'deviate sexual intercourse' between consenting adults of the same sex,
but not between consenting adults of different sexes, is unconstitutional.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE
and JUSTICE THOMAS join, dissenting.
'Liberty finds no refuge in a jurisprudence
of doubt.' Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response,
barely more than a decade ago, to those seeking to overrule Roe v. Wade,
410 U. S. 113 (1973). The Court's
response today, to those who have engaged in a 17-year crusade to overrule Bowers
v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty
presents no barrier.
Most of the rest of today's opinion has no
relevance to its actual holding-- that the Texas statute 'furthers no
legitimate state interest which can justify' its application to petitioners
under rational-basis review. Ante,
at 18 (overruling Bowers to the extent it sustained Georgia's
anti-sodomy statute under the rational-basis test). Though there is discussion of 'fundamental proposition[s],' ante,
at 4, and 'fundamental decisions,' ibid. nowhere does the Court's
opinion declare that homosexual sodomy is a 'fundamental right' under the Due Process Clause; nor does it
subject the Texas law to the standard of review that would be appropriate (strict
scrutiny) if homosexual sodomy were a 'fundamental right.' Thus, while overruling the outcome of
Bowers, the Court leaves strangely untouched its central legal
conclusion: '[R]espondent would have us announce ... a fundamental right to
engage in homosexual sodomy. This we
are quite unwilling to do.' 478 U. S.,
at 191. Instead the Court simply
describes petitioners' conduct as 'an exercise of their liberty'--which it
undoubtedly is--and proceeds to apply an unheard-of form of rational-basis
review that will have far-reaching implications beyond this case. Ante, at 3.
I
I begin with the Court's surprising readiness
to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence
to stare decisis in constitutional cases; but I do believe that we
should be consistent rather than manipulative in invoking the doctrine. Today's
opinions in support of reversal do not bother to distinguish--or indeed, even
bother to mention--the paean to stare decisis coauthored by three
Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant
preservation of judicially invented abortion rights, the widespread criticism
of Roe was strong reason to reaffirm it:
' Where, in the performance of its judicial duties, the
Court decides a case in such a way as to
resolve the sort of intensely divisive controversy reflected in Roe[,]
... its decision has a dimension that the resolution of the normal case does
not carry... . [T]o overrule under fire in the absence of the most compelling
reason ... would subvert the Court's legitimacy beyond any serious
question.' 505 U. S., at 866-867.
Today, however, the widespread opposition to Bowers,
a decision resolving an issue as 'intensely divisive' as the issue in Roe,
is offered as a reason in favor of overruling it. See ante, at 15-16. Gone, too, is any 'enquiry' (of the sort
conducted in Casey) into whether the decision sought to be overruled has
'proven 'unworkable,' ' Casey, supra, at 855.
Today's approach to stare decisis
invites us to overrule an erroneously decided precedent (including an
'intensely divisive' decision) if:
(1) its foundations have been 'eroded' by subsequent decisions, ante,
at 15; (2) it has been subject to 'substantial and continuing' criticism, ibid.;
and (3) it has not induced 'individual or societal reliance' that counsels
against overturning, ante, at 16.
The problem is that Roe itself--which today's majority surely has
no disposition to overrule--satisfies these conditions to at least the same
degree as Bowers.
(1) A preliminary digressive observation with
regard to the first factor: The Court's claim that Planned Parenthood v.
Casey, supra, 'casts some doubt' upon the holding in Bowers (or any other
case, for that matter) does not withstand analysis. Ante, at 10. As
far as its holding is concerned, Casey provided a less expansive
right to abortion than did Roe, which was already on the books when
Bowers was decided. And if the
Court is referring not to the holding of Casey, but to the dictum of its
famed sweet-mystery-of-life passage, ante, at 13 (' 'At the heart of
liberty is the right to define one's own concept of existence, of meaning, of
the universe, and of the mystery of human life' '): That 'casts some doubt'
upon either the totality of our jurisprudence or else (presumably the right
answer) nothing at all. I have never
heard of a law that attempted to restrict one's 'right to define' certain
concepts; and if the passage calls into question the government's power to
regulate actions based on one's self-defined 'concept of existence,
etc.,' it is the passage that ate the rule of law.
I do not quarrel with the Court's claim that Romer
v. Evans, 517 U. S. 620 (1996),
'eroded' the 'foundations' of Bowers' rational-basis holding. See Romer, supra, at 640-643
(SCALIA, J., dissenting).) But Roe
and Casey have been equally 'eroded' by Washington v. Glucksberg,
521 U. S. 702, 721 (1997), which held that only fundamental rights which
are ' 'deeply rooted in this Nation's history and tradition' ' qualify for
anything other than rational basis scrutiny under the doctrine of 'substantive
due process.' Roe and Casey,
of course, subjected the restriction of
abortion to heightened scrutiny without even attempting to establish that the
freedom to abort was rooted in this Nation's tradition.
(2) Bowers, the Court says, has been
subject to 'substantial and continuing
[criticism], disapproving of its reasoning in all respects, not just as
to its historical assumptions.' Ante,
at 15. Exactly what those nonhistorical
criticisms are, and whether the Court even agrees with them, are left unsaid,
although the Court does cite two books.
See ibid. (citing C. Fried, Order and Law: Arguing the Reagan
Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350
(1992)). [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]').