In this decision the Court overruled its earlier decision in “Bower vs. Hardwick” that had upheld the constitutionality of the anti-sodomy law in Georgia, and became supporting precedent for laws based on moral choices.
In these excerpts from Lawrence vs. Texas, Justice Anthony Kennedy argues against the validity of anti-sodomy laws (majority opinion) and Justice Antonin Scalia argues for the validity of these laws (dissenting opinion).
Justice Kennedy (right): “When homosexual conduct is made criminal by the law of the State, that declaration … is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres… The laws… 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.”
Justice Scalia: “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." … It is clear from this that the Court has taken sides in the culture war… 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" … Let me be clear that I have nothing against homosexuals … promoting their agenda through normal democratic means… But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else… 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" … 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.”
Justice Kennedy: “The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Justice Scalia: “The Texas Penal Code … 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… The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided…”
“We have held repeatedly, in cases the Court today does not overrule, that … fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" … “an interest traditionally protected by our society” … Bowers concluded that a right to engage in homosexual sodomy was not "deeply rooted in this Nation's history and tradition…“
Justice Kennedy: “Old US laws were derived from English criminal laws passed in the 1533 Reformation Parliament. They didn’t specify homosexuality as a distinct category. They included male-female relationships … according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century… Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative 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.”
Justice Scalia (below): “This observation in no way casts into doubt the "definitive [historical] conclusion," … 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… 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."
“Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense … 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' … is, at best, facetious."
Justice Kennedy: “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 … did not consent… 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… far from possessing “ancient roots,” … American laws targeting same-sex couples did not develop until the last third of the 20th century.”
Justice Scalia: “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," … 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.”
“There are 203 prosecutions for consensual, adult homosexual sodomy reported … from the years 1880-1995… There are also records of 20 sodomy prosecutions and 4 executions during the colonial period.”
In Bowers, Chief Justice Burger wrote in the majority opinion (supporting anti-sodomy laws), “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.”
Justice Kennedy: “…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… 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.”
Justice Scalia: “the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex" … in the past half century… there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy.”
Justice Kennedy: “… 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.”
Justice Scalia: “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… the crafting and safeguarding of public morality ... indisputably is a legitimate government interest”
Justice Kennedy: “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.”
In Bowers, Justice Stevens had declared in his dissent (opposing anti-sodomy laws), “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,"
Justice Scalia: “I turn now to the ground … that there is no rational basis for the law here under attack… The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," … 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… This (overturning of Bowers) effectively decrees the end of all morals legislation.”
“State laws against (objectionable sexual practices) 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… What a massive disruption of the current social order, therefore, the overruling of Bowers entails.”