Antonin Scalia

“ Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. ”

“ It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. 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 objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8 (1967) , similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. ”

“ Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable.
Realizing that fact, the Court instead says: “ [W] e 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.” ”

“ Nor does Justice O’Connor explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “ ‘a ... desire to harm a politically unpopular group,’ ” ante, at 2, are invalid even though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. ”

“ States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. ”

“ If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
V Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor, ante, at 1 (opinion concurring in judgment) , embraces: On its face §21.06 (a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. ”

“ 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. ”

“ 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. ”

“ Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added) ) . ”

“ 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 ”

“ California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct) ; Owens v. State, 352 Md. 663, 683, 724 A.2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage”) ; Sherman v. Henry, 928 S.W.2d 464, 469—473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery) . ”