TX statute makes a crime "deviate sexual intercourse, namely anal sex, with a member of the same sex."
D was having homosexual sex with his partner when the police found him and arrested him.
Procedural History
SCOTUS held law unconstitutional.
Issues
Does the DPC of the 14th Amendment protect the private, consensual conduct of homosexuals.
Holding/Rule
The private, consensual conduct of homosexuals is protected by the DPC of the 14th Amendment.
Reasoning
In Bowers v. Hardwick, the Court held an anti-sodomy law constitutional.
Said that the rational basis for the law was the upholding of morals and that the law was reasonably related to this end.
However, our obligation is to define the liberty of all, not to mandate our own moral code.
Two decisions post-Bowers case it into more doubt.
Planned Parenthood v. Casey
"These matters, involving the most intimate and personal choices a person may make in a lifetime are central to the liberty protected by the 14th Amendment.
Romer v. Evans
Court struck down legislation aimed at homosexuals under the Equal Protection Clause.
We overrule Bowers now.
The Constitution protects the liberty of homosexuals to make this intimate choice.
There is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. (So, if no laws against the conduct, can find it as a tradition to protect, give fundamental right status?)
The old anti-sodomy laws outlawed conduct of both man-man couples and woman-man couples.
These early laws were meant to prohibit non-procreative sexual activity and were not directly pointed at homosexuals.
Prosecutions are almost unheard of against homosexuals. Instead the laws were used against men who raped young girls and boys, men who assaulted women, and men who committed bestiality.
The infrequency of prosecutions makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults.
It was not until the last third of the 20th century that states singled out same-sex relations for criminal prosecutions. Most of these laws have been repealed by this point.
Thus, 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.
Dissent
O'Connor (concurring)
Bowers should not be overruled; this case should be decided on Equal Protection grounds.
We have held that some objectives such as a bare desire to harm a politically unpopular group are not legitimate state interests.
When a law exhibits such a desire, we have applied a more searching form of rational basis review to strike down such laws.
Texas seeks to justify its law on the basis that it furthers the legitimate gov't interest of the promotion of morality.
However, moral disapproval by itself has never been held sufficient to survive rational basis review for a law that discriminates among groups of persons.
A law branding one class of persons as criminal solely based on that state's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the EPC under any standard of review.
Scalia
Nowhere does the Court's opinion declare that homosexual sodomy is a fundamental right under the DPC; nor does it subject the TX law to strict scrutiny.
Instead, it describes the conduct as "an exercise of their liberty" and proceeds to apply an unheard-of form of rational-basis review.
The Court's approach to stare decisis invites us to overrule precedent if…
Its foundations have been eroded by subsequent decisions,
It has been subject to substantial and continuing criticism, and
It has not induced individual or societal reliance that counsels against overturning.
Roe satisfies all of these factors and was not overruled in Casey.
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.
The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the DPC, the courts will be very busy.
The TX law puts constraints on liberty, but so do laws against prostitution, heroin use, or working more than 60 hours/week in a bakery.
The conduct in question has not been labeled a fundamental right.
Homosexual sodomy is not a right deeply rooted in our Nation's history and tradition.
Emerging awareness is not acceptable to confer fundamental right status on conduct.
This law should pass rational basis review since the promotion of majoritarian sexual morality is a legitimate state interest.
Under EPC, this is the same type of distinction used in marriage laws that the Court has upheld.
So if this law is bad under the EPC, so are anti-gay marriage laws.
What TX 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.
Thomas
This law is "uncommonly silly" and seems like a waste of police resources. It should be repealed by the legislature.
However, I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy.
