LAWRENCE et al. v. TEXAS

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558 OCTOBER TERM, 2002
Syllabus
LAWRENCE et al. v. TEXAS
certiorari to the court of appeals of texas,
fourteenth district
No. 02–102. Argued March 26, 2003—Decided June 26, 2003
Responding to a reported weapons disturbance in a private residence,
Houston police entered petitioner Lawrence’s apartment and saw him
and another adult man, petitioner Garner, engaging in a private, consen-
sual sexual act. Petitioners were arrested and convicted of deviate sex-
ual intercourse in violation of a Texas statute forbidding two persons of
the same sex to engage in certain intimate sexual conduct. In affirm-
ing, the State Court of Appeals held, inter alia, that the statute was
not unconstitutional under the Due Process Clause of the Fourteenth
Amendment. The court considered Bowers v. Hardwick, 478 U. S. 186,
controlling on that point.
Held: The Texas statute making it a crime for two persons of the same
sex to engage in certain intimate sexual conduct violates the Due Proc-
ess Clause. Pp. 564–579.
(a) Resolution of this case depends on whether petitioners were free
as adults to engage in private conduct in the exercise of their liberty
under the Due Process Clause. For this inquiry the Court deems it
necessary to reconsider its Bowers holding. The Bowers Court’s initial
substantive statement—“The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage
in sodomy . . . ,” 478 U. S., at 190—discloses the Court’s failure to ap-
preciate the extent of the liberty at stake. To say that the issue in
Bowers was simply the right to engage in certain sexual conduct de-
means the claim the individual put forward, just as it would demean a
married couple were it said that marriage is just about the right to have
sexual intercourse. Although the laws involved in Bowers and here
purport to do no more than prohibit a particular sexual act, their penal-
ties and purposes have more far-reaching consequences, touching upon
the most private human conduct, sexual behavior, and in the most pri-
vate of places, the home. They seek to control a personal relationship
that, whether or not entitled to formal recognition in the law, is within
the liberty of persons to choose without being punished as criminals.
The liberty protected by the Constitution allows homosexual persons
the right to choose to enter upon relationships in the confines of their
homes and their own private lives and still retain their dignity as free
persons. Pp. 564–567.

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(b) Having misapprehended the liberty claim presented to it, the
Bowers Court stated that proscriptions against sodomy have ancient
roots. 478 U. S., at 192. It should be noted, however, that there is no
longstanding history in this country of laws directed at homosexual con-
duct as a distinct matter. Early American sodomy laws were not di-
rected at homosexuals as such but instead sought to prohibit nonprocre-
ative sexual activity more generally, whether between men and women
or men and men. Moreover, early sodomy laws seem not to have been
enforced against consenting adults acting in private. Instead, sodomy
prosecutions often involved predatory acts against those who could not
or did not consent: relations between men and minor girls or boys, be-
tween adults involving force, between adults implicating disparity in
status, or between men and animals. The longstanding criminal prohi-
bition of homosexual sodomy upon which Bowers placed such reliance is
as consistent with a general condemnation of nonprocreative sex as it is
with an established tradition of prosecuting acts because of their homo-
sexual character. Far from possessing “ancient roots,” ibid., American
laws targeting same-sex couples did not develop until the last third of
the 20th century. Even now, only nine States have singled out same-
sex relations for criminal prosecution. Thus, the historical grounds re-
lied upon in Bowers are more complex than the majority opinion and
the concurring opinion by Chief Justice Burger there indicated. They
are not without doubt and, at the very least, are overstated. The Bow-
ers Court was, of course, making the broader point that for centuries
there have been powerful voices to condemn homosexual conduct as im-
moral, but this Court’s obligation is to define the liberty of all, not to
mandate its own moral code, Planned Parenthood of Southeastern Pa.
v. Casey, 505 U. S. 833, 850. The Nation’s laws and traditions in the
past half century are most relevant here. They 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.
See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 567–573.
(c) Bowers’ deficiencies became even more apparent in the years fol-
lowing its announcement. The 25 States with laws prohibiting the con-
duct referenced in Bowers are reduced now to 13, of which 4 enforce
their laws only against homosexual conduct. In those States, including
Texas, that still proscribe sodomy (whether for same-sex or heterosex-
ual conduct), there is a pattern of nonenforcement with respect to con-
senting adults acting in private. Casey, supra, at 851—which con-
firmed that the Due Process Clause protects personal decisions relating
to marriage, procreation, contraception, family relationships, child rear-
ing, and education—and Romer v. Evans, 517 U. S. 620, 624—which
struck down class-based legislation directed at homosexuals—cast Bow-

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560 LAWRENCE v. TEXAS
Syllabus
ers’ holding into even more doubt. The stigma the Texas criminal stat-
ute imposes, moreover, is not trivial. Although the offense is but a
minor misdemeanor, it remains a criminal offense with all that imports
for the dignity of the persons charged, including notation of convictions
on their records and on job application forms, and registration as sex
offenders under state law. Where a case’s foundations have sustained
serious erosion, criticism from other sources is of greater significance.
In the United States, criticism of Bowers has been substantial and con-
tinuing, disapproving of its reasoning in all respects, not just as to its
historical assumptions. And, to the extent Bowers relied on values
shared with a wider civilization, the case’s reasoning and holding have
been rejected by the European Court of Human Rights, and that other
nations have taken action consistent with an affirmation of the protected
right of homosexual adults to engage in intimate, consensual conduct.
There has been no showing that in this country the governmental inter-
est in circumscribing personal choice is somehow more legitimate or
urgent. Stare decisis is not an inexorable command. Payne v. Tennes-
see, 501 U. S. 808, 828. Bowers’ holding has not induced detrimental
reliance of the sort that could counsel against overturning it once there
are compelling reasons to do so. Casey, supra, at 855–856. Bowers
causes uncertainty, for the precedents before and after it contradict its
central holding. Pp. 573–577.
(d) Bowers’ rationale does not withstand careful analysis. In his dis-
senting opinion in Bowers Justice Stevens concluded that (1) the fact
that a State’s governing majority has traditionally viewed a particular
practice as immoral is not a sufficient reason for upholding a law prohib-
iting the practice, and (2) individual decisions concerning the intimacies
of physical relationships, even when not intended to produce offspring,
are a form of “liberty” protected by due process. That analysis should
have controlled Bowers, and it controls here. Bowers was not correct
when it was decided, is not correct today, and is hereby overruled. This
case does not involve minors, persons who might be injured or coerced,
those who might not easily refuse consent, or public conduct or prostitu-
tion. It does involve two adults who, with full and mutual consent,
engaged in sexual practices common to a homosexual lifestyle. Peti-
tioners’ right to liberty under the Due Process Clause gives them the
full right to engage in private conduct without government interven-
tion. Casey, supra, at 847. The Texas statute furthers no legitimate
state interest which can justify its intrusion into the individual’s per-
sonal and private life. Pp. 577–579.
41 S. W. 3d 349, reversed and remanded.

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Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opin-
ion concurring in the judgment, post, p. 579. Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 586.
Thomas, J., filed a dissenting opinion, post, p. 605.
Paul M. Smith argued the cause for petitioners. With
him on the briefs were William M. Hohengarten, Daniel
Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue,
and Susan L. Sommer.
Charles A. Rosenthal, Jr., argued the cause for respond-
ent. With him on the brief were William J. Delmore III
and Scott A. Durfee.*
*Briefs of amici curiae urging reversal were filed for the Alliance of
Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the
American Psychological Association et al. by David W. Ogden, Paul R. Q.
Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Po-
lowy; for the American Public Health Association et al. by Jeffrey S.
Trachtman and Norman C. Simon; for the Cato Institute by Robert A.
Levy; for Constitutional Law Professors by Pamela S. Karlan and Wil-
liam B. Rubenstein; for the Human Rights Campaign et al. by Walter
Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin
Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and
Education Fund by David C. Codell, Laura W. Brill, and Wendy R.
Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner,
and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by
Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and
Joseph F. Tringali.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama,
Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the
Attorneys General for their respective States as follows: Henry D. Mc-
Master of South Carolina and Mark L. Shurtleff of Utah; for Agudath
Israel of America by David Zwiebel; for the American Center for Law
and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James
M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the Ameri-
can Family Association, Inc., et al. by Stephen M. Crampton, Brian Fah-
ling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by
Len L. Munsil; for the Center for Law and Justice International by
Thomas Patrick Monaghan and John P. Tuskey; for the Center for Mar-
riage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center

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562 LAWRENCE v. TEXAS
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
Liberty protects the person from unwarranted govern-
ment intrusions into a dwelling or other private places. In
our tradition the State is not omnipresent in the home. And
there are other spheres of our lives and existence, outside
the home, where the State should not be a dominant pres-
ence. Freedom extends beyond spatial bounds. Liberty
presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct.
The instant case involves liberty of the person both in its
spatial and in its more transcendent dimensions.
I
The question before the Court is the validity of a Texas
statute making it a crime for two persons of the same sex to
engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police De-
partment were dispatched to a private residence in response
to a reported weapons disturbance. They entered an apart-
ment where one of the petitioners, John Geddes Lawrence,
for the Original Intent of the Constitution by Michael P. Farris and Jor-
dan W. Lorence; for Concerned Women for America by Janet M. LaRue;
for the Family Research Council, Inc., by Robert P. George; for First Prin-
ciples, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver
and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Rich-
ard D. Ackerman and Gary G. Kreep; for Public Advocate of the United
States et al. by Herbert W. Titus and William J. Olson; for the Texas
Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren
Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physi-
cians Resource Council et al. by Glen Lavy; and for United Families Inter-
national by Paul Benjamin Linton.
Briefs of amici curiae were filed for the American Bar Association by
Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for
the American Civil Liberties Union et al. by Laurence H. Tribe, James D.
Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for
Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy
E. Barnett; and for the National Lesbian and Gay Law Association et al.
by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.

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resided. The right of the police to enter does not seem to
have been questioned. The officers observed Lawrence and
another man, Tyron Garner, engaging in a sexual act. The
two petitioners were arrested, held in custody overnight, and
charged and convicted before a Justice of the Peace.
The complaints described their crime as “deviate sexual
intercourse, namely anal sex, with a member of the same sex
(man).” App. to Pet. for Cert. 127a, 139a. The applicable
state law is Tex. Penal Code Ann. § 21.06(a) (2003). It pro-
vides: “A person commits an offense if he engages in deviate
sexual intercourse with another individual of the same sex.”
The statute defines “[d]eviate sexual intercourse” as follows:
“(A) any contact between any part of the genitals of one
person and the mouth or anus of another person; or
“(B) the penetration of the genitals or the anus of an-
other person with an object.” § 21.01(1).
The petitioners exercised their right to a trial de novo in
Harris County Criminal Court. They challenged the stat-
ute as a violation of the Equal Protection Clause of the Four-
teenth Amendment and of a like provision of the Texas Con-
stitution. Tex. Const., Art. 1, § 3a. Those contentions were
rejected. The petitioners, having entered a plea of nolo
contendere, were each fined $200 and assessed court costs of
$141.25. App. to Pet. for Cert. 107a–110a.
The Court of Appeals for the Texas Fourteenth District
considered the petitioners’ federal constitutional arguments
under both the Equal Protection and Due Process Clauses
of the Fourteenth Amendment. After hearing the case en
banc the court, in a divided opinion, rejected the constitu-
tional arguments and affirmed the convictions. 41 S. W. 3d
349 (2001). The majority opinion indicates that the Court of
Appeals considered our decision in Bowers v. Hardwick, 478
U. S. 186 (1986), to be controlling on the federal due process
aspect of the case. Bowers then being authoritative, this
was proper.

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Opinion of the Court
We granted certiorari, 537 U. S. 1044 (2002), to consider
three questions:
1. Whether petitioners’ criminal convictions under the
Texas “Homosexual Conduct” law—which criminalizes
sexual intimacy by same-sex couples, but not identical
behavior by different-sex couples—violate the Four-
teenth Amendment guarantee of equal protection of
the laws.
2. Whether petitioners’ criminal convictions for adult
consensual sexual intimacy in the home violate their
vital interests in liberty and privacy protected by the
Due Process Clause of the Fourteenth Amendment.
3. Whether Bowers v. Hardwick, supra, should be over-
ruled? See Pet. for Cert. i.
The petitioners were adults at the time of the alleged of-
fense. Their conduct was in private and consensual.
II
We conclude the case should be resolved by determining
whether the petitioners were free as adults to engage in the
private conduct in the exercise of their liberty under the
Due Process Clause of the Fourteenth Amendment to the
Constitution. For this inquiry we deem it necessary to re-
consider the Court’s holding in Bowers.
There are broad statements of the substantive reach of
liberty under the Due Process Clause in earlier cases, includ-
ing Pierce v. Society of Sisters, 268 U. S. 510 (1925), and
Meyer v. Nebraska, 262 U. S. 390 (1923); but the most perti-
nent beginning point is our decision in Griswold v. Connecti-
cut, 381 U. S. 479 (1965).
In Griswold the Court invalidated a state law prohibiting
the use of drugs or devices of contraception and counseling
or aiding and abetting the use of contraceptives. The Court
described the protected interest as a right to privacy and

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placed emphasis on the marriage relation and the protected
space of the marital bedroom. Id., at 485.
After Griswold it was established that the right to make
certain decisions regarding sexual conduct extends beyond
the marital relationship. In Eisenstadt v. Baird, 405 U. S.
438 (1972), the Court invalidated a law prohibiting the distri-
bution of contraceptives to unmarried persons. The case
was decided under the Equal Protection Clause, id., at 454;
but with respect to unmarried persons, the Court went on
to state the fundamental proposition that the law impaired
the exercise of their personal rights, ibid. It quoted from
the statement of the Court of Appeals finding the law to be
in conflict with fundamental human rights, and it followed
with this statement of its own:
“It is true that in Griswold the right of privacy in ques-
tion inhered in the marital relationship. . . . If the right
of privacy means anything, it is the right of the individ-
ual, married or single, to be free from unwarranted gov-
ernmental intrusion into matters so fundamentally af-
fecting a person as the decision whether to bear or beget
a child.” Id., at 453.
The opinions in Griswold and Eisenstadt were part of the
background for the decision in Roe v. Wade, 410 U. S. 113
(1973). As is well known, the case involved a challenge to
the Texas law prohibiting abortions, but the laws of other
States were affected as well. Although the Court held the
woman’s rights were not absolute, her right to elect an abor-
tion did have real and substantial protection as an exercise
of her liberty under the Due Process Clause. The Court
cited cases that protect spatial freedom and cases that go
well beyond it. Roe recognized the right of a woman to
make certain fundamental decisions affecting her destiny
and confirmed once more that the protection of liberty under
the Due Process Clause has a substantive dimension of fun-
damental significance in defining the rights of the person.

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In Carey v. Population Services Int’l, 431 U. S. 678 (1977),
the Court confronted a New York law forbidding sale or dis-
tribution of contraceptive devices to persons under 16 years
of age. Although there was no single opinion for the Court,
the law was invalidated. Both Eisenstadt and Carey, as
well as the holding and rationale in Roe, confirmed that the
reasoning of Griswold could not be confined to the protection
of rights of married adults. This was the state of the law
with respect to some of the most relevant cases when the
Court considered Bowers v. Hardwick.
The facts in Bowers had some similarities to the instant
case. A police officer, whose right to enter seems not to
have been in question, observed Hardwick, in his own bed-
room, engaging in intimate sexual conduct with another
adult male. The conduct was in violation of a Georgia stat-
ute making it a criminal offense to engage in sodomy. One
difference between the two cases is that the Georgia statute
prohibited the conduct whether or not the participants were
of the same sex, while the Texas statute, as we have seen,
applies only to participants of the same sex. Hardwick was
not prosecuted, but he brought an action in federal court
to declare the state statute invalid. He alleged he was a
practicing homosexual and that the criminal prohibition vio-
lated rights guaranteed to him by the Constitution. The
Court, in an opinion by Justice White, sustained the Georgia
law. Chief Justice Burger and Justice Powell joined the
opinion of the Court and filed separate, concurring opinions.
Four Justices dissented. 478 U. S., at 199 (opinion of Black-
mun, J., joined by Brennan, Marshall, and Stevens, JJ.);
id., at 214 (opinion of Stevens, J., joined by Brennan and
Marshall, JJ.).
The Court began its substantive discussion in Bowers as
follows: “The issue presented is whether the Federal Consti-
tution confers a fundamental right upon homosexuals to en-
gage in sodomy and hence invalidates the laws of the many
States that still make such conduct illegal and have done so

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for a very long time.” Id., at 190. That statement, we now
conclude, discloses the Court’s own failure to appreciate the
extent of the liberty at stake. To say that the issue in Bow-
ers was simply the right to engage in certain sexual conduct
demeans the claim the individual put forward, just as it
would demean a married couple were it to be said marriage
is simply about the right to have sexual intercourse. The
laws involved in Bowers and here are, to be sure, statutes
that 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. The statutes do seek to control a personal
relationship that, whether or not entitled to formal recogni-
tion in the law, is within the liberty of persons to choose
without being punished as criminals.
This, as a general rule, should counsel against attempts by
the State, or a court, to define the meaning of the relation-
ship or to set its boundaries absent injury to a person or
abuse of an institution the law protects. It suffices for us
to acknowledge that adults may choose to enter upon this
relationship in the confines of their homes and their own pri-
vate lives and still retain their dignity as free persons.
When sexuality finds overt expression in intimate conduct
with another person, the conduct can be but one element in
a personal bond that is more enduring. The liberty pro-
tected by the Constitution allows homosexual persons the
right to make this choice.
Having misapprehended the claim of liberty there pre-
sented to it, and thus stating the claim to be whether there
is a fundamental right to engage in consensual sodomy, the
Bowers Court said: “Proscriptions against that conduct have
ancient roots.” Id., at 192. In academic writings, and in
many of the scholarly amicus briefs filed to assist the Court
in this case, there are fundamental criticisms of the historical
premises relied upon by the majority and concurring opin-

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ions in Bowers. Brief for Cato Institute as Amicus Curiae
16–17; Brief for American Civil Liberties Union et al. as
Amici Curiae 15–21; Brief for Professors of History et al.
as Amici Curiae 3–10. We need not enter this debate in
the attempt to reach a definitive historical judgment, but
the following considerations counsel against adopting the de-
finitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstand-
ing history in this country of laws directed at homosexual
conduct as a distinct matter. Beginning in colonial times
there were prohibitions of sodomy derived from the English
criminal laws passed in the first instance by the Reformation
Parliament of 1533. The English prohibition was under-
stood to include relations between men and women as well
as relations between men and men. See, e. g., King v. Wise-
man, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting
“mankind” in Act of 1533 as including women and girls).
Nineteenth-century commentators similarly read American
sodomy, buggery, and crime-against-nature statutes as crimi-
nalizing certain relations between men and women and be-
tween men and men. See, e. g., 2 J. Bishop, Criminal Law
§ 1028 (1858); 2 J. Chitty, Criminal Law 47–50 (5th Am. ed.
1847); R. Desty, A Compendium of American Criminal Law
143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893).
The absence of legal prohibitions focusing on homosexual
conduct may be explained in part by noting that according
to some scholars the concept of the homosexual as a distinct
category of person did not emerge until the late 19th century.
See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995);
J. D’Emilio & E. Freedman, Intimate Matters: A History of
Sexuality in America 121 (2d ed. 1997) (“The modern terms
homosexuality and heterosexuality do not apply to an era
that had not yet articulated these distinctions”). Thus early
American sodomy laws were not directed at homosexuals as
such but instead sought to prohibit nonprocreative sexual
activity more generally. This does not suggest approval of

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homosexual conduct. It does tend to show that this particu-
lar form of conduct was not thought of as a separate category
from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been en-
forced against consenting adults acting in private. A sub-
stantial number of sodomy prosecutions and convictions for
which there are surviving records were for predatory acts
against those who could not or did not consent, as in the case
of a minor or the victim of an assault. As to these, one pur-
pose for the prohibitions was to ensure there would be no
lack of coverage if a predator committed a sexual assault that
did not constitute rape as defined by the criminal law. Thus
the model sodomy indictments presented in a 19th-century
treatise, see 2 Chitty, supra, at 49, addressed the predatory
acts of an adult man against a minor girl or minor boy. In-
stead of targeting relations between consenting adults in pri-
vate, 19th-century sodomy prosecutions typically involved
relations between men and minor girls or minor boys, re-
lations between adults involving force, relations between
adults implicating disparity in status, or relations between
men and animals.
To the extent that there were any prosecutions for the
acts in question, 19th-century evidence rules imposed a bur-
den that would make a conviction more difficult to obtain
even taking into account the problems always inherent in
prosecuting consensual acts committed in private. Under
then-prevailing standards, a man could not be convicted of
sodomy based upon testimony of a consenting partner, be-
cause the partner was considered an accomplice. A part-
ner’s testimony, however, was admissible if he or she had not
consented to the act or was a minor, and therefore incapable
of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed.
1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The
rule may explain in part the infrequency of these prose-
cutions. In all events that infrequency makes it difficult
to say that society approved of a rigorous and systematic

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punishment of the consensual acts committed in private
and by adults. The longstanding criminal prohibition of ho-
mosexual sodomy upon which the Bowers decision placed
such reliance is as consistent with a general condemnation of
nonprocreative sex as it is with an established tradition of
prosecuting acts because of their homosexual character.
The policy of punishing consenting adults for private acts
was not much discussed in the early legal literature. We
can infer that one reason for this was the very private nature
of the conduct. Despite the absence of prosecutions, there
may have been periods in which there was public criticism
of homosexuals as such and an insistence that the criminal
laws be enforced to discourage their practices. But far from
possessing “ancient roots,” Bowers, 478 U. S., at 192, Ameri-
can laws targeting same-sex couples did not develop until
the last third of the 20th century. The reported decisions
concerning the prosecution of consensual, homosexual sod-
omy between adults for the years 1880–1995 are not always
clear in the details, but a significant number involved con-
duct in a public place. See Brief for American Civil Liber-
ties Union et al. as Amici Curiae 14–15, and n. 18.
It was not until the 1970’s that any State singled out
same-sex relations for criminal prosecution, and only nine
States have done so. See 1977 Ark. Gen. Acts no. 828; 1983
Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws
p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632;
1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399;
see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986)
(sodomy law invalidated as applied to different-sex couples).
Post-Bowers even some of these States did not adhere to the
policy of suppressing homosexual conduct. Over the course
of the last decades, States with same-sex prohibitions have
moved toward abolishing them. See, e. g., Jegley v. Picado,
349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283
Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926
S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson,

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571 Cite as: 539 U. S. 558 (2003)
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842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518
(repealing Nev. Rev. Stat. § 201.193).
In summary, the historical grounds relied upon in Bowers
are more complex than the majority opinion and the concur-
ring opinion by Chief Justice Burger indicate. Their histori-
cal premises are not without doubt and, at the very least,
are overstated.
It must be acknowledged, of course, that the Court in Bow-
ers was making the broader point that for centuries there
have been powerful voices to condemn homosexual conduct
as immoral. The condemnation has been shaped by reli-
gious beliefs, conceptions of right and acceptable behavior,
and respect for the traditional family. For many persons
these are not trivial concerns but profound and deep convic-
tions accepted as ethical and moral principles to which they
aspire and which thus determine the course of their lives.
These considerations do not answer the question before us,
however. The issue is whether the majority may use the
power of the State to enforce these views on the whole soci-
ety through operation of the criminal law. “Our obligation
is to define the liberty of all, not to mandate our own moral
code.” Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833, 850 (1992).
Chief Justice Burger joined the opinion for the Court in
Bowers and further explained his views as follows: “Deci-
sions 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 stand-
ards.” 478 U. S., at 196. As with Justice White’s assump-
tions about history, scholarship casts some doubt on the
sweeping nature of the statement by Chief Justice Burger
as it pertains to private homosexual conduct between con-
senting adults. See, e. g., Eskridge, Hardwick and Histori-
ography, 1999 U. Ill. L. Rev. 631, 656. In all events we think
that our laws and traditions in the past half century are of

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572 LAWRENCE v. TEXAS
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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 mat-
ters pertaining to sex. “[H]istory and tradition are the
starting point but not in all cases the ending point of the
substantive due process inquiry.” County of Sacramento
v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).
This emerging recognition should have been apparent
when Bowers was decided. In 1955 the American Law In-
stitute promulgated the Model Penal Code and made clear
that it did not recommend or provide for “criminal penalties
for consensual sexual relations conducted in private.” ALI,
Model Penal Code § 213.2, Comment 2, p. 372 (1980). It jus-
tified its decision on three grounds: (1) The prohibitions un-
dermined respect for the law by penalizing conduct many
people engaged in; (2) the statutes regulated private conduct
not harmful to others; and (3) the laws were arbitrarily
enforced and thus invited the danger of blackmail. ALI,
Model Penal Code, Commentary 277–280 (Tent. Draft No. 4,
1955). In 1961 Illinois changed its laws to conform to the
Model Penal Code. Other States soon followed. Brief for
Cato Institute as Amicus Curiae 15–16.
In Bowers the Court referred to the fact that before 1961
all 50 States had outlawed sodomy, and that at the time of
the Court’s decision 24 States and the District of Columbia
had sodomy laws. 478 U. S., at 192–193. Justice Powell
pointed out that these prohibitions often were being ignored,
however. Georgia, for instance, had not sought to enforce
its law for decades. Id., at 197–198, n. 2 (“The history of
nonenforcement suggests the moribund character today of
laws criminalizing this type of private, consensual conduct”).
The sweeping references by Chief Justice Burger to the
history of Western civilization and to Judeo-Christian moral
and ethical standards did not take account of other authori-
ties pointing in an opposite direction. A committee advising
the British Parliament recommended in 1957 repeal of laws

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punishing homosexual conduct. The Wolfenden Report: Re-
port of the Committee on Homosexual Offenses and Prostitu-
tion (1963). Parliament enacted the substance of those rec-
ommendations 10 years later. Sexual Offences Act 1967, § 1.
Of even more importance, almost five years before Bowers
was decided the European Court of Human Rights consid-
ered a case with parallels to Bowers and to today’s case. An
adult male resident in Northern Ireland alleged he was a
practicing homosexual who desired to engage in consensual
homosexual conduct. The laws of Northern Ireland forbade
him that right. He alleged that he had been questioned, his
home had been searched, and he feared criminal prosecution.
The court held that the laws proscribing the conduct were
invalid under the European Convention on Human Rights.
Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52.
Authoritative in all countries that are members of the Coun-
cil of Europe (21 nations then, 45 nations now), the decision
is at odds with the premise in Bowers that the claim put
forward was insubstantial in our Western civilization.
In our own constitutional system the deficiencies in Bow-
ers became even more apparent in the years following its
announcement. The 25 States with laws prohibiting the rel-
evant conduct referenced in the Bowers decision are reduced
now to 13, of which 4 enforce their laws only against homo-
sexual conduct. In those States where sodomy is still pro-
scribed, whether for same-sex or heterosexual conduct, there
is a pattern of nonenforcement with respect to consent-
ing adults acting in private. The State of Texas admitted
in 1994 that as of that date it had not prosecuted anyone
under those circumstances. State v. Morales, 869 S. W. 2d
941, 943.
Two principal cases decided after Bowers cast its holding
into even more doubt. In Planned Parenthood of South-
eastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaf-
firmed the substantive force of the liberty protected by the
Due Process Clause. The Casey decision again confirmed

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574 LAWRENCE v. TEXAS
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that our laws and tradition afford constitutional protection
to personal decisions relating to marriage, procreation, con-
traception, family relationships, child rearing, and education.
Id., at 851. In explaining the respect the Constitution de-
mands for the autonomy of the person in making these
choices, we stated as follows:
“These matters, involving the most intimate and per-
sonal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to
the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one’s own
concept of existence, of meaning, of the universe, and of
the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they
formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do. The deci-
sion in Bowers would deny them this right.
The second post-Bowers case of principal relevance is
Romer v. Evans, 517 U. S. 620 (1996). There the Court
struck down class-based legislation directed at homosexuals
as a violation of the Equal Protection Clause. Romer invali-
dated an amendment to Colorado’s Constitution which named
as a solitary class persons who were homosexuals, lesbians,
or bisexual either by “orientation, conduct, practices or rela-
tionships,” id., at 624 (internal quotation marks omitted), and
deprived them of protection under state antidiscrimination
laws. We concluded that the provision was “born of animos-
ity toward the class of persons affected” and further that it
had no rational relation to a legitimate governmental pur-
pose. Id., at 634.
As an alternative argument in this case, counsel for the
petitioners and some amici contend that Romer provides the
basis for declaring the Texas statute invalid under the Equal
Protection Clause. That is a tenable argument, but we con-

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clude the instant case requires us to address whether Bowers
itself has continuing validity. Were we to hold the statute
invalid under the Equal Protection Clause some might ques-
tion whether a prohibition would be valid if drawn differ-
ently, say, to prohibit the conduct both between same-sex
and different-sex participants.
Equality of treatment and the due process right to demand
respect for conduct protected by the substantive guarantee
of liberty are linked in important respects, and a decision on
the latter point advances both interests. If protected con-
duct is made criminal and the law which does so remains
unexamined for its substantive validity, its stigma might re-
main even if it were not enforceable as drawn for equal pro-
tection reasons. When homosexual conduct is made crimi-
nal by the law of the State, that declaration in and of itself
is an invitation to subject homosexual persons to discrimina-
tion both in the public and in the private spheres. The cen-
tral holding of Bowers has been brought in question by this
case, and it should be addressed. Its continuance as prece-
dent demeans the lives of homosexual persons.
The stigma this criminal statute imposes, moreover, is not
trivial. The offense, to be sure, is but a class C misde-
meanor, a minor offense in the Texas legal system. Still, it
remains a criminal offense with all that imports for the dig-
nity of the persons charged. The petitioners will bear on
their record the history of their criminal convictions. Just
this Term we rejected various challenges to state laws re-
quiring the registration of sex offenders. Smith v. Doe, 538
U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe,
538 U. S. 1 (2003). We are advised that if Texas convicted
an adult for private, consensual homosexual conduct under
the statute here in question the convicted person would come
within the registration laws of at least four States were he
or she to be subject to their jurisdiction. Pet. for Cert. 13,
and n. 12 (citing Idaho Code §§ 18–8301 to 18–8326 (Cum.
Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540–15:549

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576 LAWRENCE v. TEXAS
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(West 2003); Miss. Code Ann. §§ 45–33–21 to 45–33–57 (Lexis
2003); S. C. Code Ann. §§ 23–3–400 to 23–3–490 (West 2002)).
This underscores the consequential nature of the punishment
and the state-sponsored condemnation attendant to the crim-
inal prohibition. Furthermore, the Texas criminal convic-
tion carries with it the other collateral consequences always
following a conviction, such as notations on job application
forms, to mention but one example.
The foundations of Bowers have sustained serious erosion
from our recent decisions in Casey and Romer. When our
precedent has been thus weakened, criticism from other
sources is of greater significance. In the United States criti-
cism of Bowers has been substantial and continuing, disap-
proving of its reasoning in all respects, not just as to its
historical assumptions. See, e. g., C. Fried, Order and Law:
Arguing the Reagan Revolution—A Firsthand Account
81–84 (1991); R. Posner, Sex and Reason 341–350 (1992).
The courts of five different States have declined to follow it
in interpreting provisions in their own state constitutions
parallel to the Due Process Clause of the Fourteenth Amend-
ment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332
(2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998);
Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Camp-
bell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Com-
monwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
To the extent Bowers relied on values we share with a
wider civilization, it should be noted that the reasoning and
holding in Bowers have been rejected elsewhere. The Eu-
ropean Court of Human Rights has followed not Bowers
but its own decision in Dudgeon v. United Kingdom. See
P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56
(Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur.
Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988).
Other nations, too, have taken action consistent with an af-
firmation of the protected right of homosexual adults to en-
gage in intimate, consensual conduct. See Brief for Mary

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Opinion of the Court
Robinson et al. as Amici Curiae 11–12. The right the peti-
tioners seek in this case has been accepted as an integral
part of human freedom in many other countries. There has
been no showing that in this country the governmental inter-
est in circumscribing personal choice is somehow more legiti-
mate or urgent.
The doctrine of stare decisis is essential to the respect
accorded to the judgments of the Court and to the stability
of the law. It is not, however, an inexorable command.
Payne v. Tennessee, 501 U. S. 808, 828 (1991) (“Stare decisis
is not an inexorable command; rather, it ‘is a principle of
policy and not a mechanical formula of adherence to the lat-
est decision’ ” (quoting Helvering v. Hallock, 309 U. S. 106,
119 (1940))). In Casey we noted that when a court is asked
to overrule a precedent recognizing a constitutional liberty
interest, individual or societal reliance on the existence of
that liberty cautions with particular strength against revers-
ing course. 505 U. S., at 855–856; see also id., at 844 (“Lib-
erty finds no refuge in a jurisprudence of doubt”). The hold-
ing in Bowers, however, has not induced detrimental reliance
comparable to some instances where recognized individual
rights are involved. Indeed, there has been no individual or
societal reliance on Bowers of the sort that could counsel
against overturning its holding once there are compelling
reasons to do so. Bowers itself causes uncertainty, for the
precedents before and after its issuance contradict its cen-
tral holding.
The rationale of Bowers does not withstand careful analy-
sis. In his dissenting opinion in Bowers Justice Stevens
came to these conclusions:
“Our prior cases make two propositions abundantly
clear. First, 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; neither history nor tradition
could save a law prohibiting miscegenation from consti-

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578 LAWRENCE v. TEXAS
Opinion of the Court
tutional attack. Second, individual decisions by mar-
ried persons, concerning the intimacies of their physical
relationship, even when not intended to produce off-
spring, are a form of ‘liberty’ protected by the Due Proc-
ess Clause of the Fourteenth Amendment. Moreover,
this protection extends to intimate choices by unmarried
as well as married persons.” 478 U. S., at 216 (footnotes
and citations omitted).
Justice Stevens’ analysis, in our view, should have been
controlling in Bowers and should control here.
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.
The present case does not involve minors. It does not in-
volve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be
refused. It does not involve public conduct or prostitution.
It does not involve whether the government must give for-
mal recognition to any relationship that homosexual persons
seek to enter. The case does involve two adults who, with
full and mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle. The petitioners
are entitled to respect for their private lives. The State
cannot demean their existence or control their destiny by
making their private sexual conduct a crime. Their right to
liberty under the Due Process Clause gives them the full
right to engage in their conduct without intervention of the
government. “It is a promise of the Constitution that there
is a realm of personal liberty which the government may not
enter.” Casey, supra, at 847. The Texas statute furthers
no legitimate state interest which can justify its intrusion
into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses
of the Fifth Amendment or the Fourteenth Amendment
known the components of liberty in its manifold possibilities,
they might have been more specific. They did not presume

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579 Cite as: 539 U. S. 558 (2003)
O’Connor, J., concurring in judgment
to have this insight. They knew times can blind us to cer-
tain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress.
As the Constitution endures, persons in every generation can
invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Four-
teenth District is reversed, and the case is remanded for fur-
ther proceedings not inconsistent with this opinion.
It is so ordered.
Justice O’Connor, concurring in the judgment.
The Court today overrules Bowers v. Hardwick, 478 U. S.
186 (1986). I joined Bowers, and do not join the Court in
overruling it. Nevertheless, I agree with the Court that
Texas’ statute banning same-sex sodomy is unconstitutional.
See Tex. Penal Code Ann. § 21.06 (2003). Rather than rely-
ing on the substantive component of the Fourteenth Amend-
ment’s Due Process Clause, as the Court does, I base my
conclusion on the Fourteenth Amendment’s Equal Protec-
tion Clause.
The Equal Protection Clause of the Fourteenth Amend-
ment “is essentially a direction that all persons similarly
situated should be treated alike.” Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler
v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis
standard of review, “legislation is presumed to be valid and
will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.” Cleburne
v. Cleburne Living Center, supra, at 440; see also Depart-
ment of Agriculture v. Moreno, 413 U. S. 528, 534 (1973);
Romer v. Evans, 517 U. S. 620, 632–633 (1996); Nordlinger
v. Hahn, 505 U. S. 1, 11–12 (1992).
Laws such as economic or tax legislation that are scruti-
nized under rational basis review normally pass constitu-
tional muster, since “the Constitution presumes that even
improvident decisions will eventually be rectified by the

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580 LAWRENCE v. TEXAS
O’Connor, J., concurring in judgment
democratic processes.” Cleburne v. Cleburne Living Cen-
ter, supra, at 440; see also Fitzgerald v. Racing Assn. of
Central Iowa, ante, p. 103; Williamson v. Lee Optical of
Okla., Inc., 348 U. S. 483 (1955). We have consistently held,
however, that some objectives, such as “a bare . . . desire to
harm a politically unpopular group,” are not legitimate state
interests. Department of Agriculture v. Moreno, supra, at
534. See also Cleburne v. Cleburne Living Center, supra,
at 446–447; Romer v. Evans, supra, at 632. When a law
exhibits such a desire to harm a politically unpopular group,
we have applied a more searching form of rational basis re-
view to strike down such laws under the Equal Protection
Clause.
We have been most likely to apply rational basis review
to hold a law unconstitutional under the Equal Protection
Clause where, as here, the challenged legislation inhibits
personal relationships. In Department of Agriculture v.
Moreno, for example, we held that a law preventing those
households containing an individual unrelated to any other
member of the household from receiving food stamps vio-
lated equal protection because the purpose of the law was
to “ ‘discriminate against hippies.’ ” 413 U. S., at 534. The
asserted governmental interest in preventing food stamp
fraud was not deemed sufficient to satisfy rational basis re-
view. Id., at 535–538. In Eisenstadt v. Baird, 405 U. S.
438, 447–455 (1972), we refused to sanction a law that dis-
criminated between married and unmarried persons by pro-
hibiting the distribution of contraceptives to single persons.
Likewise, in Cleburne v. Cleburne Living Center, supra, we
held that it was irrational for a State to require a home for
the mentally disabled to obtain a special use permit when
other residences—like fraternity houses and apartment
buildings—did not have to obtain such a permit. And in
Romer v. Evans, we disallowed a state statute that “im-
pos[ed] a broad and undifferentiated disability on a single
named group”—specifically, homosexuals. 517 U. S., at 632.

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O’Connor, J., concurring in judgment
The statute at issue here makes sodomy a crime only if a
person “engages in deviate sexual intercourse with another
individual of the same sex.” Tex. Penal Code Ann. § 21.06(a)
(2003). Sodomy between opposite-sex partners, however, is
not a crime in Texas. That is, Texas treats the same con-
duct differently based solely on the participants. Those
harmed by this law are people who have a same-sex sexual
orientation and thus are more likely to engage in behavior
prohibited by § 21.06.
The Texas statute makes homosexuals unequal in the eyes
of the law by making particular conduct—and only that con-
duct—subject to criminal sanction. It appears that prosecu-
tions under Texas’ sodomy law are rare. See State v. Mo-
rales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that
§ 21.06 “has not been, and in all probability will not be, en-
forced against private consensual conduct between adults”).
This case shows, however, that prosecutions under § 21.06 do
occur. And while the penalty imposed on petitioners in this
case was relatively minor, the consequences of conviction are
not. It appears that petitioners’ convictions, if upheld,
would disqualify them from or restrict their ability to engage
in a variety of professions, including medicine, athletic train-
ing, and interior design. See, e. g., Tex. Occ. Code Ann.
§ 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1)
(athletic trainer); § 1053.252(2) (interior designer). Indeed,
were petitioners to move to one of four States, their convic-
tions would require them to register as sex offenders to local
law enforcement. See, e. g., Idaho Code § 18–8304 (Cum.
Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003);
Miss. Code Ann. § 45–33–25 (West 2003); S. C. Code Ann.
§ 23–3–430 (West Cum. Supp. 2002); cf. ante, at 575–576.
And the effect of Texas’ sodomy law is not just limited
to the threat of prosecution or consequence of conviction.
Texas’ sodomy law brands all homosexuals as criminals,
thereby making it more difficult for homosexuals to be
treated in the same manner as everyone else. Indeed, Texas

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O’Connor, J., concurring in judgment
itself has previously acknowledged the collateral effects of
the law, stipulating in a prior challenge to this action that
the law “legally sanctions discrimination against [homosexu-
als] in a variety of ways unrelated to the criminal law,” in-
cluding in the areas of “employment, family issues, and hous-
ing.” State v. Morales, 826 S. W. 2d 201, 203 (Tex. App.
1992).
Texas attempts to justify its law, and the effects of the law,
by arguing that the statute satisfies rational basis review
because it furthers the legitimate governmental interest of
the promotion of morality. In Bowers, we held that a state
law criminalizing sodomy as applied to homosexual couples
did not violate substantive due process. We rejected the
argument that no rational basis existed to justify the law,
pointing to the government’s interest in promoting morality.
478 U. S., at 196. The only question in front of the Court in
Bowers was whether the substantive component of the Due
Process Clause protected a right to engage in homosexual
sodomy. Id., at 188, n. 2. Bowers did not hold that moral
disapproval of a group is a rational basis under the Equal
Protection Clause to criminalize homosexual sodomy when
heterosexual sodomy is not punished.
This case raises a different issue than Bowers: whether,
under the Equal Protection Clause, moral disapproval is a
legitimate state interest to justify by itself a statute that
bans homosexual sodomy, but not heterosexual sodomy. It
is not. Moral disapproval of this group, like a bare desire
to harm the group, is an interest that is insufficient to satisfy
rational basis review under the Equal Protection Clause.
See, e. g., Department of Agriculture v. Moreno, 413 U. S.,
at 534; Romer v. Evans, 517 U. S., at 634–635. Indeed, we
have never held that moral disapproval, without any other
asserted state interest, is a sufficient rationale under the
Equal Protection Clause to justify a law that discriminates
among groups of persons.

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O’Connor, J., concurring in judgment
Moral disapproval of a group cannot be a legitimate gov-
ernmental interest under the Equal Protection Clause be-
cause legal classifications must not be “drawn for the purpose
of disadvantaging the group burdened by the law.” Id., at
633. Texas’ invocation of moral disapproval as a legitimate
state interest proves nothing more than Texas’ desire to
criminalize homosexual sodomy. But the Equal Protection
Clause prevents a State from creating “a classification of per-
sons undertaken for its own sake.” Id., at 635. And be-
cause Texas so rarely enforces its sodomy law as applied to
private, consensual acts, the law serves more as a statement
of dislike and disapproval against homosexuals than as a tool
to stop criminal behavior. The Texas sodomy law “raise[s]
the inevitable inference that the disadvantage imposed is
born of animosity toward the class of persons affected.”
Id., at 634.
Texas argues, however, that the sodomy law does not dis-
criminate against homosexual persons. Instead, the State
maintains that the law discriminates only against homosex-
ual conduct. While it is true that the law applies only to
conduct, the conduct targeted by this law is conduct that is
closely correlated with being homosexual. Under such cir-
cumstances, Texas’ sodomy law is targeted at more than con-
duct. It is instead directed toward gay persons as a class.
“After all, there can hardly be more palpable discrimination
against a class than making the conduct that defines the class
criminal.” Id., at 641 (Scalia, J., dissenting) (internal quo-
tation marks omitted). When a State makes homosexual
conduct criminal, and not “deviate sexual intercourse” com-
mitted by persons of different sexes, “that declaration in and
of itself is an invitation to subject homosexual persons to
discrimination both in the public and in the private spheres.”
Ante, at 575.
Indeed, Texas law confirms that the sodomy statute is di-
rected toward homosexuals as a class. In Texas, calling a
person a homosexual is slander per se because the word “ho-

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O’Connor, J., concurring in judgment
mosexual” “impute[s] the commission of a crime.” Plumley
v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997)
(applying Texas law); see also Head v. Newton, 596 S. W. 2d
209, 210 (Tex. App. 1980). The State has admitted that be-
cause of the sodomy law, being homosexual carries the pre-
sumption of being a criminal. See State v. Morales, 826
S. W. 2d, at 202–203 (“[T]he statute brands lesbians and gay
men as criminals and thereby legally sanctions discrimina-
tion against them in a variety of ways unrelated to the crimi-
nal law”). Texas’ sodomy law therefore results in discrimi-
nation against homosexuals as a class in an array of areas
outside the criminal law. See ibid. In Romer v. Evans, we
refused to sanction a law that singled out homosexuals “for
disfavored legal status.” 517 U. S., at 633. The same is
true here. The Equal Protection Clause “ ‘neither knows
nor tolerates classes among citizens.’ ” Id., at 623 (quot-
ing Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan,
J., dissenting)).
A State can of course assign certain consequences to a
violation of its criminal law. But the State cannot single out
one identifiable class of citizens for punishment that does not
apply to everyone else, with moral disapproval as the only
asserted state interest for the law. The Texas sodomy stat-
ute subjects homosexuals to “a lifelong penalty and stigma.
A legislative classification that threatens the creation of an
underclass . . . cannot be reconciled with” the Equal Protec-
tion Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J.,
concurring).
Whether a sodomy law that is neutral both in effect and
application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886),
would violate the substantive component of the Due Process
Clause is an issue that need not be decided today. I am con-
fident, however, that so long as the Equal Protection Clause
requires a sodomy law to apply equally to the private consen-
sual conduct of homosexuals and heterosexuals alike, such a

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585 Cite as: 539 U. S. 558 (2003)
O’Connor, J., concurring in judgment
law would not long stand in our democratic society. In the
words of Justice Jackson:
“The framers of the Constitution knew, and we should
not forget today, that there is no more effective practical
guaranty against arbitrary and unreasonable govern-
ment than to require that the principles of law which
officials would impose upon a minority be imposed gen-
erally. Conversely, nothing opens the door to arbitrary
action so effectively as to allow those officials to pick
and choose only a few to whom they will apply legisla-
tion and thus to escape the political retribution that
might be visited upon them if larger numbers were af-
fected.” Railway Express Agency, Inc. v. New York,
336 U. S. 106, 112–113 (1949) (concurring opinion).
That this law as applied to private, consensual conduct is
unconstitutional under the Equal Protection Clause does not
mean that other laws distinguishing between heterosexuals
and homosexuals would similarly fail under rational basis
review. Texas cannot assert any legitimate state interest
here, such as national security or preserving the traditional
institution of marriage. Unlike the moral disapproval of
same-sex relations—the asserted state interest in this case—
other reasons exist to promote the institution of marriage
beyond mere moral disapproval of an excluded group.
A law branding one class of persons as criminal based
solely on the State’s moral disapproval of that class and the
conduct associated with that class runs contrary to the val-
ues of the Constitution and the Equal Protection Clause,
under any standard of review. I therefore concur in the
Court’s judgment that Texas’ sodomy law banning “deviate
sexual intercourse” between consenting adults of the same
sex, but not between consenting adults of different sexes, is
unconstitutional.

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586 LAWRENCE v. TEXAS
Scalia, J., dissenting
Justice Scalia, with whom The Chief Justice and
Justice Thomas join, dissenting.
“Liberty finds no refuge in a jurisprudence of doubt.”
Planned Parenthood of Southeastern Pa. v. 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 legiti-
mate state interest which can justify” its application to peti-
tioners under rational-basis review. Ante, at 578 (overrul-
ing Bowers to the extent it sustained Georgia’s antisodomy
statute under the rational-basis test). Though there is dis-
cussion of “fundamental proposition[s],” ante, at 565, and
“fundamental decisions,” ibid., nowhere does the Court’s
opinion declare that homosexual sodomy is a “fundamental
right” under the Due Process Clause; nor does it subject the
Texas law to the standard of review that would be appro-
priate (strict scrutiny) if homosexual sodomy were a “funda-
mental right.” Thus, while overruling the outcome of Bow-
ers, the Court leaves strangely untouched its central legal
conclusion: “[R]espondent would have us announce . . . a fun-
damental right to engage in homosexual sodomy. This we
are quite unwilling to do.” 478 U. S., at 191. Instead the
Court simply describes petitioners’ conduct as “an exercise
of their liberty”—which it undoubtedly is—and proceeds to
apply an unheard-of form of rational-basis review that will
have far-reaching implications beyond this case. Ante,
at 564.
I
I begin with the Court’s surprising readiness to reconsider
a decision rendered a mere 17 years ago in Bowers v. Hard-

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587 Cite as: 539 U. S. 558 (2003)
Scalia, J., dissenting
wick. I do not myself believe in rigid adherence to stare
decisis in constitutional cases; but I do believe that we
should be consistent rather than manipulative in invoking
the doctrine. Today’s opinions in support of reversal do not
bother to distinguish—or indeed, even bother to mention—
the paean to stare decisis coauthored by three Members of
today’s majority in Planned Parenthood v. Casey. There,
when stare decisis meant preservation of judicially invented
abortion rights, the widespread criticism of Roe was strong
reason to reaffirm it:
“Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve the sort
of intensely divisive controversy reflected in Roe[,] . . .
its decision has a dimension that the resolution of the
normal case does not carry. . . . [T]o overrule under fire
in the absence of the most compelling reason . . . would
subvert the Court’s legitimacy beyond any serious ques-
tion.” 505 U. S., at 866–867.
Today, however, the widespread opposition to Bowers, a deci-
sion resolving an issue as “intensely divisive” as the issue in
Roe, is offered as a reason in favor of overruling it. See
ante, at 576–577. 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 divi-
sive” decision) if: (1) its foundations have been “ero[ded]” by
subsequent decisions, ante, at 576; (2) it has been subject to
“substantial and continuing” criticism, ibid.; and (3) it has
not induced “individual or societal reliance” that counsels
against overturning, ante, at 577. The problem is that Roe
itself—which today’s majority surely has no disposition to
overrule—satisfies these conditions to at least the same de-
gree as Bowers.

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588 LAWRENCE v. TEXAS
Scalia, J., dissenting
(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 Bow-
ers (or any other case, for that matter) does not withstand
analysis. Ante, at 571. 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 de-
cided. And if the Court is referring not to the holding of
Casey, but to the dictum of its famed sweet-mystery-of-life
passage, ante, at 574 (“ ‘At the heart of liberty is the right
to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life’ ”): That “casts
some doubt” upon either the totality of our jurisprudence or
else (presumably the right answer) nothing at all. I have
never heard of a law that attempted to restrict one’s “right
to define” certain concepts; and if the passage calls into ques-
tion the government’s power to regulate actions based on
one’s self-defined “concept of existence, etc.,” it is the pas-
sage that ate the rule of law.
I do not quarrel with the Court’s claim that Romer v.
Evans, 517 U. S. 620 (1996), “eroded” the “foundations” of
Bowers’ rational-basis holding. See Romer, supra, at 640–
643 (Scalia, J., dissenting). But Roe and Casey have been
equally “eroded” by Washington v. Glucksberg, 521 U. S. 702,
721 (1997), which held that only fundamental rights which
are “ ‘deeply rooted in this Nation’s history and tradition’ ”
qualify for anything other than rational-basis scrutiny under
the doctrine of “substantive due process.” Roe and Casey,
of course, subjected the restriction of abortion to heightened
scrutiny without even attempting to establish that the free-
dom to abort was rooted in this Nation’s tradition.
(2) Bowers, the Court says, has been subject to “substan-
tial and continuing [criticism], disapproving of its reasoning
in all respects, not just as to its historical assumptions.”
Ante, at 576. Exactly what those nonhistorical criticisms
are, and whether the Court even agrees with them, are left

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589 Cite as: 539 U. S. 558 (2003)
Scalia, J., dissenting
unsaid, although the Court does cite two books. See ibid.
(citing C. Fried, Order and Law: Arguing the Reagan Revo-
lution—A Firsthand Account 81–84 (1991); R. Posner, Sex
and Reason 341–350 (1992)).1 Of course, Roe too (and by
extension Casey) had been (and still is) subject to unrelent-
ing criticism, including criticism from the two commentators
cited by the Court today. See Fried, supra, at 75 (“Roe was
a prime example of twisted judging”); Posner, supra, at
337 (“[The Court’s] opinion in Roe . . . fails to measure
up to professional expectations regarding judicial opinions”);
Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421,
1434 (1995) (describing the opinion in Roe as an “embarrass-
ing performanc[e]”).
(3) That leaves, to distinguish the rock-solid, unamendable
disposition of Roe from the readily overrulable Bowers, only
the third factor. “[T]here has been,” the Court says, “no
individual or societal reliance on Bowers of the sort that
could counsel against overturning its holding . . . .” Ante,
at 577. It seems to me that the “societal reliance” on the
principles confirmed in Bowers and discarded today has
been overwhelming. Countless judicial decisions and legis-
lative 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. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949
(CA11 2001) (citing Bowers in upholding Alabama’s prohibi-
tion on the sale of sex toys on the ground that “[t]he crafting
and safeguarding of public morality . . . indisputably is a
legitimate government interest under rational basis scru-
tiny”); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing
Bowers for the proposition that “[l]egislatures are permitted
to legislate with regard to morality . . . rather than confined
1 This last-cited critic of Bowers actually writes: “[Bowers] is correct
nevertheless that the right to engage in homosexual acts is not deeply
rooted in America’s history and tradition.” Posner, Sex and Reason,
at 343.

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590 LAWRENCE v. TEXAS
Scalia, J., dissenting
to preventing demonstrable harms”); Holmes v. California
Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (re-
lying on Bowers in upholding the federal statute and regula-
tions banning from military service those who engage in ho-
mosexual 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 in-
tercourse, 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).
We ourselves relied extensively on Bowers when we con-
cluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569
(1991), that Indiana’s public indecency statute furthered
“a substantial government interest in protecting order and
morality,” ibid. (plurality opinion); see also id., at 575
(Scalia, J., concurring in judgment). State laws against
bigamy, same-sex marriage, adult incest, prostitution, mas-
turbation, adultery, fornication, bestiality, and obscenity 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; the Court makes
no effort to cabin the scope of its decision to exclude them
from its holding. See ante, at 572 (noting “an emerging
awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in
matters pertaining to sex” (emphasis added)). The impossi-
bility of distinguishing homosexuality from other traditional
“morals” offenses is precisely why Bowers rejected the
rational-basis challenge. “The law,” it said, “is constantly
based on notions of morality, and if all laws representing es-
sentially moral choices are to be invalidated under the Due
Process Clause, the courts will be very busy indeed.” 478
U. S., at 196.2
2 While the Court does not overrule Bowers’ holding that homosexual
sodomy is not a “fundamental right,” it is worth noting that the “societal
reliance” upon that aspect of the decision has been substantial as well.

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591 Cite as: 539 U. S. 558 (2003)
Scalia, J., dissenting
What a massive disruption of the current social order,
therefore, the overruling of Bowers entails. Not so the
overruling of Roe, which would simply have restored the
regime that existed for centuries before 1973, in which
the permissibility of, and restrictions upon, abortion were
determined legislatively State by State. Casey, however,
chose to base its stare decisis determination on a different
“sort” of reliance. “[P]eople,” it said, “have organized inti-
mate relationships and made choices that define their views
of themselves and their places in society, in reliance on the
availability of abortion in the event that contraception should
fail.” 505 U. S., at 856. This falsely assumes that the con-
sequence of overruling Roe would have been to make abor-
tion unlawful. It would not; it would merely have permitted
See 10 U. S. C. § 654(b)(1) (“A member of the armed forces shall be sepa-
rated from the armed forces . . . if . . . the member has engaged in . . . a
homosexual act or acts”); Marcum v. McWhorter, 308 F. 3d 635, 640–642
(CA6 2002) (relying on Bowers in rejecting a claimed fundamental right
to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793–794 (CA9 1995)
(relying on Bowers in rejecting a grandparent’s claimed “fundamental lib-
erty interes[t]” in the adoption of her grandchildren); Doe v. Wigginton,
21 F. 3d 733, 739–740 (CA6 1994) (relying on Bowers in rejecting a prison-
er’s claimed “fundamental right” to on-demand HIV testing); Schowen-
gerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers
in upholding a bisexual’s discharge from the armed services); Charles v.
Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting
fire department captain’s claimed “fundamental” interest in a promotion);
Henne v. Wright, 904 F. 2d 1208, 1214–1215 (CA8 1990) (relying on Bowers
in rejecting a claim that state law restricting surnames that could be given
to children at birth implicates a “fundamental right”); Walls v. Petersburg,
895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-
due-process challenge to a police department questionnaire that asked pro-
spective employees about homosexual activity); High Tech Gays v. Defense
Industrial Security Clearance Office, 895 F. 2d 563, 570–571 (CA9 1988)
(relying on Bowers’ holding that homosexual activity is not a fundamental
right in rejecting—on the basis of the rational-basis standard—an equal-
protection challenge to the Defense Department’s policy of conducting ex-
panded investigations into backgrounds of gay and lesbian applicants for
secret and top-secret security clearances).

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592 LAWRENCE v. TEXAS
Scalia, J., dissenting
the States to do so. Many States would unquestionably
have declined to prohibit abortion, and others would not
have prohibited it within six months (after which the most
significant reliance interests would have expired). Even for
persons in States other than these, the choice would not have
been between abortion and childbirth, but between abortion
nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should sur-
prise no one, that the Court has chosen today to revise the
standards of stare decisis set forth in Casey. It has thereby
exposed Casey’s extraordinary deference to precedent for
the result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis,
the Court still must establish that Bowers was wrongly de-
cided and that the Texas statute, as applied to petitioners,
is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly im-
poses constraints on liberty. So do laws prohibiting prosti-
tution, recreational use of heroin, and, for that matter, work-
ing more than 60 hours per week in a bakery. But there is
no right to “liberty” under the Due Process Clause, though
today’s opinion repeatedly makes that claim. Ante, at 567
(“The liberty protected by the Constitution allows homosex-
ual persons the right to make this choice”); ante, at 574
(“ ‘These matters . . . are central to the liberty protected by
the Fourteenth Amendment’ ”); ante, at 578 (“Their right to
liberty under the Due Process Clause gives them the full
right to engage in their conduct without intervention of
the government”). The Fourteenth Amendment expressly
allows States to deprive their citizens of “liberty,” so long
as “due process of law” is provided:
“No state shall . . . deprive any person of life, liberty, or
property, without due process of law.” Amdt. 14 (em-
phasis added).

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593 Cite as: 539 U. S. 558 (2003)
Scalia, J., dissenting
Our opinions applying the doctrine known as “substantive
due process” hold that the Due Process Clause prohibits
States from infringing fundamental liberty interests, unless
the infringement is narrowly tailored to serve a compelling
state interest. Washington v. Glucksberg, 521 U. S., at 721.
We have held repeatedly, in cases the Court today does not
overrule, that only fundamental rights qualify for this so-
called “heightened scrutiny” protection—that is, rights
which are “ ‘deeply rooted in this Nation’s history and tradi-
tion,’ ” ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993)
(fundamental liberty interests must be “so rooted in the tra-
ditions and conscience of our people as to be ranked as funda-
mental” (internal quotation marks and citations omitted));
United States v. Salerno, 481 U. S. 739, 751 (1987) (same).
See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989)
(“[W]e have insisted not merely that the interest denomi-
nated as a ‘liberty’ be ‘fundamental’ . . . but also that it be
an interest traditionally protected by our society”); Moore v.
East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion);
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)).3 All other liberty interests
may be abridged or abrogated pursuant to a validly enacted
state law if that law is rationally related to a legitimate
state interest.
3 The Court is quite right that “ ‘[h]istory and tradition are the starting
point but not in all cases the ending point of the substantive due process
inquiry,’ ” ante, at 572. An asserted “fundamental liberty interest” must
not only be “ ‘deeply rooted in this Nation’s history and tradition,’ ” Wash-
ington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be “ ‘im-
plicit in the concept of ordered liberty,’ ” so that “ ‘neither liberty nor jus-
tice would exist if [it] were sacrificed,’ ” ibid. Moreover, liberty interests
unsupported by history and tradition, though not deserving of “heightened
scrutiny,” are still protected from state laws that are not rationally re-
lated to any legitimate state interest. Id., at 722. As I proceed to dis-
cuss, it is this latter principle that the Court applies in the present case.

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594 LAWRENCE v. TEXAS
Scalia, J., dissenting
Bowers held, first, that criminal prohibitions of homosex-
ual sodomy are not subject to heightened scrutiny because
they do not implicate a “fundamental right” under the Due
Process Clause, 478 U. S., at 191–194. Noting that “[p]ro-
scriptions against that conduct have ancient roots,” id., at
192, that “[s]odomy was a criminal offense at common law
and was forbidden by the laws of the original 13 States when
they ratified the Bill of Rights,” ibid., and that many States
had retained their bans on sodomy, id., at 193, Bowers con-
cluded that a right to engage in homosexual sodomy was not
“ ‘deeply rooted in this Nation’s history and tradition,’ ” id.,
at 192.
The Court today does not overrule this holding. Not once
does it describe homosexual sodomy as a “fundamental
right” or a “fundamental liberty interest,” nor does it subject
the Texas statute to strict scrutiny. Instead, having failed
to establish that the right to homosexual sodomy is “ ‘deeply
rooted in this Nation’s history and tradition,’ ” the Court con-
cludes that the application of Texas’s statute to petitioners’
conduct fails the rational-basis test, and overrules Bowers’
holding to the contrary, see id., at 196. “The Texas statute
furthers no legitimate state interest which can justify its in-
trusion into the personal and private life of the individual.”
Ante, at 578.
I shall address that rational-basis holding presently.
First, however, I address some aspersions that the Court
casts upon Bowers’ conclusion that homosexual sodomy is not
a “fundamental right”—even though, as I have said, the
Court does not have the boldness to reverse that conclusion.
III
The Court’s description of “the state of the law” at the
time of Bowers only confirms that Bowers was right. Ante,
at 566. The Court points to Griswold v. Connecticut, 381
U. S. 479, 481–482 (1965). But that case expressly dis-
claimed any reliance on the doctrine of “substantive due

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595 Cite as: 539 U. S. 558 (2003)
Scalia, J., dissenting
process,” and grounded the so-called “right to privacy” in
penumbras of constitutional provisions other than the Due
Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972),
likewise had nothing to do with “substantive due process”;
it invalidated a Massachusetts law prohibiting the distribu-
tion of contraceptives to unmarried persons solely on the
basis of the Equal Protection Clause. Of course Eisenstadt
contains well-known dictum relating to the “right to pri-
vacy,” but this referred to the right recognized in Gris-
wold—a right penumbral to the specific guarantees in the
Bill of Rights, and not a “substantive due process” right.
Roe v. Wade recognized that the right to abort an unborn
child was a “fundamental right” protected by the Due Proc-
ess Clause. 410 U. S., at 155. The Roe Court, however,
made no attempt to establish that this right was “ ‘deeply
rooted in this Nation’s history and tradition’ ”; instead, it
based its conclusion that “the Fourteenth Amendment’s con-
cept of personal liberty . . . is broad enough to encompass a
woman’s decision whether or not to terminate her preg-
nancy” on its own normative judgment that antiabortion
laws were undesirable. See id., at 153. We have since re-
jected Roe’s holding that regulations of abortion must be
narrowly tailored to serve a compelling state interest, see
Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion
of O’Connor, Kennedy, and Souter, JJ.); id., at 951–953
(Rehnquist, C. J., concurring in judgment in part and
dissenting in part)—and thus, by logical implication, Roe’s
holding that the right to abort an unborn child is a “funda-
mental right.” See 505 U. S., at 843–912 ( joint opinion of
O’Connor, Kennedy, and Souter, JJ.) (not once describing
abortion as a “fundamental right” or a “fundamental liberty
interest”).
After discussing the history of antisodomy laws, ante, at
568–571, the Court proclaims that, “it should be noted that
there is no longstanding history in this country of laws di-
rected at homosexual conduct as a distinct matter,” ante,

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596 LAWRENCE v. TEXAS
Scalia, J., dissenting
at 568. This observation in no way casts into doubt the “de-
finitive [historical] conclusio[n],” ibid., on which Bowers re-
lied: that our Nation has a longstanding history of laws pro-
hibiting sodomy in general—regardless of whether it was
performed by same-sex or opposite-sex couples:
“It is obvious to us that neither of these formulations
would extend a fundamental right to homosexuals to
engage in acts of consensual sodomy. Proscriptions
against that conduct have ancient roots. Sodomy was
a criminal offense at common law and was forbidden by
the laws of the original 13 States when they ratified the
Bill of Rights. In 1868, when the Fourteenth Amend-
ment 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 penal-
ties for sodomy performed in private and between con-
senting adults. Against this background, to claim that
a right to engage in such conduct is ‘deeply rooted in
this Nation’s history and tradition’ or ‘implicit in the
concept of ordered liberty’ is, at best, facetious.” 478
U. S., at 192–194 (citations and footnotes omitted; em-
phasis added).
It is (as Bowers recognized) entirely irrelevant whether the
laws in our long national tradition criminalizing homosexual
sodomy were “directed at homosexual conduct as a distinct
matter.” Ante, at 568. Whether homosexual sodomy was
prohibited by a law targeted at same-sex sexual relations
or by a more general law prohibiting both homosexual and
heterosexual sodomy, 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.” The Court today agrees that homosexual
sodomy was criminalized and thus does not dispute the facts
on which Bowers actually relied.

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Next the Court makes the claim, again unsupported by
any citations, that “[l]aws prohibiting sodomy do not seem
to have been enforced against consenting adults acting in
private.” Ante, at 569. The key qualifier here is “acting
in private”—since the Court admits that sodomy laws were
enforced against consenting adults (although the Court con-
tends that prosecutions were “infrequen[t],” ibid.). I do not
know what “acting in private” means; surely consensual sod-
omy, 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 cov-
ered,” it is entirely unsurprising that evidence of enforce-
ment would be hard to come by. (Imagine the circum-
stances that would enable a search warrant to be obtained
for a residence on the ground that there was probable cause
to believe that consensual sodomy was then and there occur-
ring.) Surely that lack of evidence would not sustain the
proposition that consensual sodomy on private premises with
the doors closed and windows covered was regarded as a
“fundamental right,” even though all other consensual sod-
omy was criminalized. There are 203 prosecutions for con-
sensual, adult homosexual sodomy reported in the West Re-
porting system and official state reporters from the years
1880–1995. See W. Eskridge, Gaylaw: Challenging the
Apartheid of the Closet 375 (1999) (hereinafter Gaylaw).
There are also records of 20 sodomy prosecutions and 4 exe-
cutions during the colonial period. J. Katz, Gay/Lesbian Al-
manac 29, 58, 663 (1983). Bowers’ conclusion that homosex-
ual 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.” Ante, at 571–572 (emphasis

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598 LAWRENCE v. TEXAS
Scalia, J., dissenting
added). Apart from the fact that such an “emerging aware-
ness” does not establish a “fundamental right,” the state-
ment is factually false. States continue to prosecute all
sorts of crimes by adults “in matters pertaining to sex”:
prostitution, adult incest, adultery, obscenity, and child por-
nography. Sodomy laws, too, have been enforced “in the
past half century,” in which there have been 134 reported
cases involving prosecutions for consensual, adult, homosex-
ual sodomy. Gaylaw 375. In relying, for evidence of an
“emerging recognition,” upon the American Law Institute’s
1955 recommendation not to criminalize “ ‘consensual sexual
relations conducted in private,’ ” ante, at 572, the Court ig-
nores the fact that this recommendation was “a point of re-
sistance in most of the states that considered adopting the
Model Penal Code.” Gaylaw 159.
In any event, an “emerging awareness” is by definition not
“deeply rooted in this Nation’s history and tradition[s],” as
we have said “fundamental right” status requires. Consti-
tutional entitlements do not spring into existence because
some States choose to lessen or eliminate criminal sanctions
on certain behavior. Much less do they spring into exist-
ence, as the Court seems to believe, because foreign nations
decriminalize conduct. The Bowers majority opinion never
relied on “values we share with a wider civilization,” ante,
at 576, but rather rejected the claimed right to sodomy on
the ground that such a right was not “ ‘deeply rooted in this
Nation’s history and tradition,’ ” 478 U. S., at 193–194 (em-
phasis added). Bowers’ rational-basis holding is likewise de-
void of any reliance on the views of a “wider civilization,” see
id., at 196. The Court’s discussion of these foreign views
(ignoring, of course, the many countries that have retained
criminal prohibitions on sodomy) is therefore meaningless
dicta. Dangerous dicta, however, since “this Court . . .
should not impose foreign moods, fads, or fashions on Ameri-
cans.” Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas,
J., concurring in denial of certiorari).

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IV
I turn now to the ground on which the Court squarely
rests its holding: the contention that there is no rational
basis for the law here under attack. This proposition is
so out of accord with our jurisprudence—indeed, with the ju-
risprudence of any society we know—that it requires little
discussion.
The Texas statute undeniably seeks to further the belief
of its citizens that certain forms of sexual behavior are “im-
moral and unacceptable,” Bowers, supra, at 196—the same
interest furthered by criminal laws against fornication, big-
amy, adultery, adult incest, bestiality, and obscenity. Bow-
ers held that this was a legitimate state interest. The Court
today reaches the opposite conclusion. The Texas statute,
it says, “furthers no legitimate state interest which can jus-
tify its intrusion into the personal and private life of the
individual,” ante, at 578 (emphasis added). The Court em-
braces instead Justice Stevens’ declaration in his Bowers
dissent, that “ ‘the fact that the governing majority in a
State has traditionally viewed a particular practice as im-
moral is not a sufficient reason for upholding a law prohibit-
ing the practice,’ ” ante, at 577. This effectively decrees the
end of all morals legislation. If, as the Court asserts, the
promotion of majoritarian sexual morality is not even a legit-
imate 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 579 (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. To be sure, § 21.06 does distinguish between the
sexes insofar as concerns the partner with whom the sexual

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600 LAWRENCE v. TEXAS
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acts are performed: men can violate the law only with other
men, and women only with other women. But this cannot
itself be a denial of equal protection, since it is precisely the
same distinction regarding partner that is drawn in state
laws prohibiting marriage with someone of the same sex
while permitting marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegena-
tion 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 part-
ner was concerned. In Loving, however, we correctly ap-
plied 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 dis-
criminatory purpose is always sufficient to subject a law to
strict scrutiny, even a facially neutral law that makes no
mention of race. See Washington v. Davis, 426 U. S. 229,
241–242 (1976). No purpose to discriminate against men or
women as a class can be gleaned from the Texas law, so
rational-basis review applies. That review is readily satis-
fied here by the same rational basis that satisfied it in Bow-
ers—society’s belief that certain forms of sexual behavior are
“immoral and unacceptable,” 478 U. S., at 196. This is the
same justification that supports many other laws regulating
sexual behavior that make a distinction based upon the iden-
tity of the partner—for example, laws against adultery, forni-
cation, and adult incest, and laws refusing to recognize homo-
sexual marriage.
Justice O’Connor argues that the discrimination in this
law which must be justified is not its discrimination with
regard to the sex of the partner but its discrimination with
regard to the sexual proclivity of the principal actor.
“While it is true that the law applies only to conduct, the
conduct targeted by this law is conduct that is closely
correlated with being homosexual. Under such circum-
stances, Texas’ sodomy law is targeted at more than con-

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duct. It is instead directed toward gay persons as a
class.” Ante, at 583.
Of course the same could be said of any law. A law against
public nudity targets “the conduct that is closely correlated
with being a nudist,” and hence “is targeted at more than
conduct”; it is “directed toward nudists as a class.” But be
that as it may. Even if the Texas law does deny equal pro-
tection to “homosexuals as a class,” that denial still does not
need to be justified by anything more than a rational basis,
which our cases show is satisfied by the enforcement of tradi-
tional notions of sexual morality.
Justice O’Connor simply decrees application of “a more
searching form of rational basis review” to the Texas statute.
Ante, at 580. The cases she cites do not recognize such a
standard, and reach their conclusions only after finding, as
required by conventional rational-basis analysis, that no con-
ceivable legitimate state interest supports the classification
at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 448–450 (1985);
Department of Agriculture v. Moreno, 413 U. S. 528, 534–538
(1973). 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 580,
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’Con-
nor seeks to preserve them by the conclusory statement
that “preserving the traditional institution of marriage” is a
legitimate state interest. Ante, at 585. But “preserving
the traditional institution of marriage” is just a kinder way
of describing the State’s moral disapproval of same-sex cou-
ples. Texas’s interest in § 21.06 could be recast in similarly
euphemistic terms: “preserving the traditional sexual mores
of our society.” In the jurisprudence Justice O’Connor

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602 LAWRENCE v. TEXAS
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has seemingly created, judges can validate laws by charac-
terizing them as “preserving the traditions of society”
(good); or invalidate them by characterizing them as “ex-
pressing moral disapproval” (bad).
* * *
Today’s opinion is the product of a Court, which is the
product of a law-profession culture, that has largely signed
on to the so-called homosexual agenda, by which I mean
the agenda promoted by some homosexual activists directed
at eliminating the moral opprobrium that has traditionally
attached to homosexual conduct. I noted in an earlier opin-
ion the fact that the American Association of Law Schools
(to which any reputable law school must seek to belong) ex-
cludes from membership any school that refuses to ban from
its job-interview facilities a law firm (no matter how small)
that does not wish to hire as a prospective partner a person
who openly engages in homosexual conduct. See Romer,
supra, at 653.
One of the most revealing statements in today’s opinion is
the Court’s grim warning that the criminalization of homo-
sexual conduct is “an invitation to subject homosexual per-
sons to discrimination both in the public and in the private
spheres.” Ante, at 575. 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 part-
ners 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” which
it is the function of our judgments to deter. So imbued is
the Court with the law profession’s anti-anti-homosexual cul-
ture, that it is seemingly unaware that the attitudes of that

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culture are not obviously “mainstream”; that in most States
what the Court calls “discrimination” against those who en-
gage in homosexual acts is perfectly legal; that proposals
to ban such “discrimination” under Title VII have repeat-
edly been rejected by Congress, see Employment Non-
Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess.
(1994); Civil Rights Amendments, H. R. 5452, 94th Cong.,
1st Sess. (1975); that in some cases such “discrimination” is
mandated by federal statute, see 10 U. S. C. § 654(b)(1) (man-
dating discharge from the Armed Forces of any service mem-
ber who engages in or intends to engage in homosexual acts);
and that in some cases such “discrimination” is a constitu-
tional right, see Boy Scouts of America v. Dale, 530 U. S.
640 (2000).
Let me be clear that I have nothing against homosexuals,
or any other group, promoting their agenda through normal
democratic means. 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, consen-
sual homosexual acts. But persuading one’s fellow citizens
is one thing, and imposing one’s views in absence of demo-
cratic majority will is something else. I would no more re-
quire a State to criminalize homosexual acts—or, for that
matter, display any moral disapprobation of them—than I
would forbid it to do so. 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” by a Court that is impatient
of democratic change. It is indeed true that “later genera-
tions can see that laws once thought necessary and proper in
fact serve only to oppress,” ante, at 579; and when that hap-
pens, later generations can repeal those laws. But it is the
premise of our system that those judgments are to be made

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by the people, and not imposed by a governing caste that
knows best.
One of the benefits of leaving regulation of this matter to
the people rather than to the courts is that the people, unlike
judges, need not carry things to their logical conclusion.
The people may feel that their disapprobation of homosexual
conduct is strong enough to disallow homosexual marriage,
but not strong enough to criminalize private homosexual
acts—and may legislate accordingly. The Court today pre-
tends that it possesses a similar freedom of action, so that
we need not fear judicial imposition of homosexual marriage,
as has recently occurred in Canada (in a decision that the
Canadian Government has chosen not to appeal). See Halp-
ern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen,
Dozens in Canada Follow Gay Couple’s Lead, Washington
Post, June 12, 2003, p. A25. At the end of its opinion—after
having laid waste the foundations of our rational-basis juris-
prudence—the Court says that the present case “does not
involve whether the government must give formal recogni-
tion to any relationship that homosexual persons seek to
enter.” Ante, at 578. Do not believe it. More illuminating
than this bald, unreasoned disclaimer is the progression of
thought displayed by an earlier passage in the Court’s opin-
ion, which notes the constitutional protections afforded to
“personal decisions relating to marriage, procreation, con-
traception, family relationships, child rearing, and educa-
tion,” and then declares that “[p]ersons in a homosexual rela-
tionship may seek autonomy for these purposes, just as
heterosexual persons do.” Ante, at 574 (emphasis added).
Today’s opinion dismantles the structure of constitutional
law that has permitted a distinction to be made between het-
erosexual and homosexual unions, insofar as formal recogni-
tion in marriage is concerned. If moral disapprobation of
homosexual conduct is “no legitimate state interest” for pur-
poses of proscribing that conduct, ante, at 578; and if, as the
Court coos (casting aside all pretense of neutrality), “[w]hen

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sexuality finds overt expression in intimate conduct with an-
other person, the conduct can be but one element in a per-
sonal bond that is more enduring,” ante, at 567; what justifi-
cation could there possibly be for denying the benefits of
marriage to homosexual couples exercising “[t]he liberty pro-
tected by the Constitution,” ibid.? Surely not the encour-
agement of procreation, since the sterile and the elderly are
allowed to marry. This case “does not involve” the issue of
homosexual marriage only if one entertains the belief that
principle and logic have nothing to do with the decisions of
this Court. Many will hope that, as the Court comfortingly
assures us, this is so.
The matters appropriate for this Court’s resolution are
only three: Texas’s prohibition of sodomy neither infringes a
“fundamental right” (which the Court does not dispute), nor
is unsupported by a rational relation to what the Constitu-
tion considers a legitimate state interest, nor denies the
equal protection of the laws. I dissent.
Justice Thomas, dissenting.
I join Justice Scalia’s dissenting opinion. I write sepa-
rately to note that the law before the Court today “is . . .
uncommonly silly.” Griswold v. Connecticut, 381 U. S. 479,
527 (1965) (Stewart, J., dissenting). If I were a member of
the Texas Legislature, I would vote to repeal it. Punishing
someone for expressing his sexual preference through non-
commercial consensual conduct with another adult does not
appear to be a worthy way to expend valuable law enforce-
ment resources.
Notwithstanding this, I recognize that as a Member of this
Court I am not empowered to help petitioners and others
similarly situated. My duty, rather, is to “decide cases
‘agreeably to the Constitution and laws of the United
States.’ ” Id., at 530. And, just like Justice Stewart, I “can
find [neither in the Bill of Rights nor any other part of the

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Constitution a] general right of privacy,” ibid., or as the
Court terms it today, the “liberty of the person both in its
spatial and more transcendent dimensions,” ante, at 562.