Right of Privacy - Includes Marital relationship decisions.
The right of privacy includes the right to make decisions
regarding the marital relationship.
Right to Marry - Expanded past procreation
That right has been expanded beyond marital relations to include
the right of unmarried individuals to decide whether to conceive
Liberty Interests - Unwarranted government intrusion into
At its core, the right of privacy involves the right to be free
from unwarranted government intrusion into fundamental personal
decisions and liberty interests.
Statutes prohibiting a certain type of sexual expression deprive
individuals of more than a chosen sexual behavior.
Consenting rights of adults
They infringe upon fundamental personal relationships in private
homes between consenting adults.
The Constitution protects individual choices to express their
personal relationship with intimate conduct.
No ancient roots
Laws against homosexual behavior do not have "ancient roots"
that make homosexual contact any less of a fundamental right
than intimate conduct in general.
Sodomy enforced on society in general, not just homosexuals
Historical sodomy laws were not enforced against homosexuals in
particular, but against society in general.
Sodomy not enforced against consenting adults in private
Further, sodomy laws have not historically been enforced against
consenting adults acting in private.
Not until relatively recently in our country's history have
states sought to specifically prohibit homosexual activity, and
the more recent trend is toward abolishing such laws.
Bowers v. Hardwick
Although in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court
held that state laws prohibiting homosexual relations withstand
constitutional scrutiny, the Court should have acknowledged this
growing recognition of homosexual rights.
In 1955, the Model Penal Code stated that "criminal penalties
for consensual sexual relations conducted in private" were not
Many states followed this guidance in their statutory schemes.
Similarly, other nations had abandoned sodomy laws, indicating
the growing tolerance of homosexual liberty interests throughout
May survive equal protection scrutiny, violate due process
While an appropriately tailored statute prohibiting homosexual
relations may survive equal-protection scrutiny, the inevitable
violations of individual liberty interests violate due process.
The criminalization of homosexual conduct creates a public
stigma and promotes discrimination.
Convictions requires mandatory disclosure
conviction in some states falls within the registration laws and
mandatory disclosure on future job applications.
Bears on the liberty of consenting adults
Because these consequences bear an important relationship to the
liberty interests of consenting adults, Bowers is overruled, and
state laws criminalizing homosexual contact between consenting
adults in private violate the Due Process Clause.
Concurring - Justice OConnor
Violates the Equal Protection Clause
The statute in Bowers presented a different issue than presented
in this case.
In Bowers, the statute criminalized
sodomy for ALL individuals, while the Texas
statute here punishes ONLY
Because the statute targets
one class of individuals over another, it suffices to
strike down the Texas statute as violating the Equal Protection
Clause. Bowers, however, should not be overruled.
Dissent - Justice Scalia
Stare Decisis - Eroded by subsequent decision
Under the majority's approach to stare decisis, an erroneous
decision should be overruled if its foundation has been eroded
by subsequent decisions, there has been "substantial
and continuing" criticism of the decision, and
there has been no societal reliance on
the decision counseling against overruling it.
Using this logic, lets overrule Roe v. Wade
Accepting those factors, the Court should overrule Roe v. Wade,
which the Court has vehemently declined to do.
Still Reliance on Bower
Even accepting this approach, there has been overwhelming
societal reliance on Bowers' direction that moral offenses
involving sexual behavior are supported by the Constitution.
We still sustain laws against bigamy
Courts have accepted this approach to sustain laws proscribing
bigamy, same-sex marriages, adultery, and obscenity, among
Reliance on the Bowers decision thus supports stare decisis even
under the majority's misguided approach.
Undoubtedly deprives individual liberty interests
While the Texas statute undoubtedly deprives individual liberty
interests, the Due Process
Clause does not prohibit denials of liberty, but rather protects
such denials absent due process of law.
Compelling interest - deeply rooted in nations history and
Under a due process review, only those rights that are "deeply
rooted in this Nation's history and tradition" are fundamental
and raise compelling state interests.
Court ignores that sodomy has been criminalized in general
Although the Court points to the lack of historical targeting of
homosexual sodomy, the Court ignores
that sodomy has been criminalized in general throughout American
history, and it matters not whether those laws specifically
targeted one class of citizens.
Emerging awareness does not establish a fundamental right
Because sodomy has long been criminalized, there is no
historical right to such conduct that is deeply rooted in
American history and tradition.
Moreover, an "emerging awareness" of a protected liberty
interest to engage in sexual activity by consenting adults in
private does not establish a
Other laws support the same moral agenda
In concluding that the Texas law is not rationally related to a
legitimate state interest, the majority surmises that the state
has no legitimate interest in regulating immoral and
unacceptable sexual activity.
Yet, laws against bigamy,
fornication, adultery, and incest support the same
moral agenda, and one cannot imagine successful constitutional
challenges to such regulations.
Dissent - Justice Thomas
The Constitution contains no general
right of privacy that compels the Court to strike
down the Texas statute.
Nonetheless, the law at issue should be legislatively repealed
because it "does not appear to be a worthy way to expend
valuable law enforcement resources."