Does a Texas statute criminalizing consensual same-sex sodomy between adults in private violate the liberty protected by the Due Process Clause of the Fourteenth Amendment?

Houston police officers were dispatched to a private residence in response to a reported weapons disturbance. They entered the apartment of John Geddes Lawrence and observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The right of the police to enter was not questioned. Both men were arrested, held overnight, and charged and convicted before a Justice of the Peace under Tex. Penal Code Ann. § 21.06(a), which made it an offense to engage in "deviate sexual intercourse with another individual of the same sex." The statute defined deviate sexual intercourse as contact between the genitals of one person and the mouth or anus of another, or penetration of the genitals or anus with an object. Opposite-sex couples engaging in the same conduct were not criminally liable. The petitioners were adults, and their conduct was private and consensual. Each pleaded nolo contendere and was fined $200 and assessed court costs of $141.25.

Lawrence and Garner were convicted before a Justice of the Peace and exercised their right to a trial de novo in Harris County Criminal Court. There they challenged the statute under the Equal Protection Clause of the Fourteenth Amendment and the Texas Constitution's equal rights provision. The trial court rejected those contentions, and the petitioners pleaded nolo contendere and were fined. They appealed to the Court of Appeals of Texas, Fourteenth District, which considered their federal Equal Protection and Due Process arguments. Sitting en banc, a divided court rejected the constitutional claims and affirmed the convictions, treating Bowers v. Hardwick, 478 U.S. 186 (1986), as controlling on the due process question. The United States Supreme Court granted certiorari to consider the equal protection question, the due process question, and whether Bowers should be overruled.

(Kennedy, J.)

Yes. The Texas statute violates the liberty protected by the Due Process Clause, and Bowers v. Hardwick is overruled.

Bowers misapprehended the liberty at stake. Framing the issue as a right to engage in certain sexual conduct demeans the claim, just as describing marriage as only the right to have sexual intercourse would demean a married couple. Such laws touch the most private human conduct, sexual behavior, in the most private of places, the home. Adults may choose to enter a personal relationship in their homes and retain their dignity as free persons.

The historical premises of Bowers are overstated. Early American sodomy laws were not directed at homosexuals as such but at nonprocreative sex generally, and they were rarely enforced against consenting adults in private. Laws targeting same-sex conduct did not arise until the last third of the 20th century. In any event, history and tradition are the starting point but not the ending point of the substantive due process inquiry. County of Sacramento v. Lewis, 523 U.S. 833 (1998). Over the past half century, the Model Penal Code, state repeals, the Wolfenden Report, and Dudgeon v. United Kingdom show an emerging recognition of the liberty of adults in private sexual conduct.

Bowers' foundations were eroded by Planned Parenthood v. Casey, 505 U.S. 833 (1992), which protects the most intimate and personal choices central to dignity and autonomy, and by Romer v. Evans, 517 U.S. 620 (1996). Stare decisis is not an inexorable command, and Bowers induced no reliance interests that counsel against overruling it. Moral disapproval does not justify using the criminal law to enforce one view on all of society. Casey, 505 U.S. at 850.

The statute furthers no legitimate state interest that justifies its intrusion into private life, and its criminal stigma carries collateral consequences. The ruling does not involve minors, coercion, public conduct, prostitution, or formal recognition of same-sex relationships. The judgment is reversed and remanded.

Concurring in the judgment (O'Connor, J.) Bowers should not be overruled, but the Texas statute is unconstitutional under the Equal Protection Clause. A law that criminalizes sodomy only between same-sex partners treats the same conduct differently based solely on the participants. Moral disapproval of a group, like a bare desire to harm a politically unpopular group, is not a legitimate state interest under rational basis review, and laws that inhibit personal relationships warrant a more searching form of that review. Romer v. Evans; Department of Agriculture v. Moreno. The law targets gay persons as a class because the conduct is closely correlated with being homosexual, and it carries collateral consequences in employment, housing, and licensing. This reasoning does not invalidate other laws distinguishing heterosexuals and homosexuals, such as those preserving the institution of marriage.

Dissent (Scalia, J.) The majority abandons stare decisis in overruling Bowers while leaving its central holding intact: it never declares homosexual sodomy a fundamental right and applies an unprecedented form of rational-basis review. Bowers was correct that any such right is not deeply rooted in the Nation's history and tradition. Moral disapproval is a legitimate state interest, and the decision calls into question laws against bigamy, adult incest, prostitution, adultery, fornication, bestiality, and obscenity. The opinion also undermines the legal basis for distinguishing same-sex marriage from opposite-sex marriage. The majority answers that the case does not involve prostitution, public conduct, or formal recognition of any relationship. The dissent adds that the Court has taken sides in the culture war rather than leaving the matter to the democratic process. The equal protection claim fails because the law applies equally to all and survives rational-basis review.

Dissent (Thomas, J.) The Texas law is uncommonly silly, and he would vote to repeal it as a legislator. But the Court is not empowered to strike it down because he finds no general right of privacy in the Bill of Rights or any other part of the Constitution.