we'll hear argument next to number 02102 John Geddes Lawrence and Tyrone Garner versus Texas thank you Mr Smith Mr chief justice and may it please the court the state of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the state happens to disapprove of it further claims that there's no constitutional problem raised by a criminal statute that is directed not just at conduct but at a particular group of people a law that criminalizes forms of sexual intimacy only for same-sex couples and not for anyone else in the state who has had the right to make a free choice to engage in The Identical conduct petitioners are two adults who were arrested in a private home and criminally convicted simply because they engaged in one of the forms of sexual intimacy that is on the banned list in the state of Texas for same-sex couples they bring two constitutional claims to the court today first among the fundamental rights that are implicit in our concept of ordered Liberty must be the right of all adult couples whether same-sex or not to be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression second there's no legitimate and rational justification under the equal protection clause for a law that regulates forms of sexual intimacy that are permitted in the state only for same-sex couples thereby creating a kind of second-class citizenship for that group of people when you're on your substantive due process submission Mr Smith uh certainly the kind of conduct we're talking about here has been banned for a long time now you point to a trend in the other direction which would be fine if you're talking about the Eighth Amendment but I think our cases like glocksburg say it if you're talking about a right that is going to be sustained it has to have been recognized for a long time and that simply isn't so well the Court's cases Mr chief justice say that history is a starting point not the end point of the analysis and I think that it's important to look at history as a whole and one of the errors that I think that the court made in Bowers V Hardwick was only looking at the issue in terms of homosexual sodomy and not looking at the issue in general terms which is the right of everyone to decide for themselves about consensual private uh sexual intimacy if you look at the history as a whole you find a much more complicated picture first of all you find that sodomy was regulated going back to the founding for everyone and indeed the laws in in the 19th century didn't focus on same-sex couples they focused on particular non-programming you're getting to your equal protection argument now let's let's let's separate the two the first is your your fundamental right argument which has nothing to do with equal protection well you run out of same-sex other sex aspect doesn't come into it I think it does come into it because if you're going to suggest that the state of the law on the books in the 19th century is the touchdown you have to take into account that the in the 19th century at least on the face of the law married couples were regulated in terms of the forms of sexual intimacy that were created for them may well be but so we're same-sex couples same-sex couples could not could not perform this act lawfully what what more do you need than that it was prohibited when you go beyond that and say oh but it was also prohibited for for other sex couples you're getting into an equal protection argument it seems to me not a fundamental right away well I guess I'm suggesting uh justice Scalia that it's been conceded here by this state it was conceded by the state of Georgia 17 years ago that married couples can't be regulated as a matter of substantive due process in their personal sexual expression in the home that means that the state of the law on the books in the 19th century can't be the deciding fact they conceded it I haven't conceded it your honor that may well be true I was I was working with the assumption that there may be uh justices of the view that married couples do have such a right and it's suggesting that the real issue here is whether that fundamental right extends outside the marital context into other unmarried couples who form bonds and have for whom sexual intimacy plays an equally important role in their lives were you talking specifically about the eisenstadt against Baird where there was an unmarried couple well there was an unmarried person and the conducting question would have been perhaps in the 19th century early 19th century Criminal talking about fornication yes Justice Ginsburg I think the court in has moved from Griswold to eisenstadt has moved in the contraception area outside of the marital context to the unmarried context certainly the right of the qualified right to abortion applies to unmarried people as well as married people and I think that what the court in in looking at this issue of the scope of the fundamental right to make choices about sexual intimacy ought to take into account not just the state of the law on the books in the 19th century but a couple of other factors one the change in enforcement in the last 50 years because the Court's fundamental rights cases all do look at current law as well as 19th century law and also even in the 19th century the fact that there's no record of active enforcement of these laws against conduct of adults consensual occurring in the private setting and that's true for married couples it's true for different sex couples who weren't married it's true for same-sex couples the enforcement of the law the sodomy laws of this country going back to the founding involves coercion it involves children it involves public activity it doesn't involve kind of conduct that's at issue here so you really have a tradition of respect for the privacy of individual couples in the in their in their home going back to the founding and I think then what began to happen in 1960 was a recognition that we should take that tradition and and turn it into positive law on the books and so you've now had three quarters of the states who no longer regulate this conduct for anyone based on a recognition that is not consistent with our basic American values about the relationship with the between the individual and the state well it depends on what you mean by our basic American values to to revert to what the Chief Justice was suggesting earlier it really what's at issue in this case is whether we're going to adhere to in the first part of the case not the equal protection aspect it's whether we're going to adhere to what we what we said in in glucksburg namely that before we find a substantive due process right a fundamental Liberty we have to assure ourselves that that Liberty was objectively deeply rooted in this nation's history and tradition that's what we said in glucksburg and we said it in other cases or are we going to depart from that and go to the approach that we've adopted with regard to the Eighth Amendment which is the it evolves and changes in in social values will justify a new perception of what is cruel and unusual punishment now why should we why should we uh slip into into the second mode I I'm I mean suppose all the states had laws against flagpole sitting at one time you know they were the time when it was a popular thing and uh probably annoyed a lot of communities and then almost all of them repeal those laws does that make flagpole sitting a fundamental right no your honor but the Court's decisions don't look just at history they look at the at the function that a particular claimed Freedom plays in the lives of real people that's why contraception became an issue that's why abortions you know what you mean the function it plays in the lives of real people well the court has said any any law stops people from doing what they really want to do the court has said that it's going to use reason judgment to identify a realm of personal Liberty that involves matters that are Central and core to how a person defines their own lives and relates to key other people it's about moral upbringing of children in the home it's about procreation or non-procreation in your sexual relations with your mate it's about basic questions of what kind of a family you're going to live with and other intimate associations well you say it's about procreation or non-non-procreation but none of the cases that you've talked about uh involved non-procreation did they they certainly involve the right to decide to engage in sexual relations while preventing procreation that's what that's what Griswold and eisenstadt and Kerry all say you have a right to do that there's a right to decide whether to bear and beget children and that right resides with unmarried people as much as it resides with married people and I submit to you that it's illogical fundamentally illogical to say that an unmarried couple has a right free of State intrusion to decide whether or not to have procreative sex or non-procreative sex but doesn't have the right to be free from State intrusion free from a law that says you can't have any sexual intimacy at all that that there's a there's a jagged piece missing from the edifice of this court substant fundamental rights jurisprudence it doesn't say you can have it can't have any secular intimacy it says you cannot have sexual intimacy with a person of the same sex well that's this this particular law does that yes your honor but certainly our our submission is the fornication laws and and and laws involving sodomy regulation more broadly would be equally unconstitutional because they involve but your your position as I understand it is even if you take uh the narrowest view of glucksburg and even if you say there's got to be a positive historical sanction uh that in fact there is no historical uh no substantial historical evidence to the contrary because a the sodomy laws were not enforced against conceptual activity historically and B they were not aimed at homosexual as opposed to sodomy in general is that your historical point you say even if I accept your argument I should win yes your honor I think first of all that the positive law the law and the books proves too much because it intruded right into the marital bedroom and so and that the record of enforcement which may be more informative actually supports us rather than supporting the notion that this is something that can be regulated what do you mean by the record of enforcement that there were now what happened in this case was an accidental intrusion of the police they didn't come into the bedroom looking for people conducting illicit sexual relations they were there for another reason and happened to discover these uh these men in that in in that conduct uh what do you mean by lack of enforcement that the police have not gone around knocking on bedroom doors to see if anyone I mean this is not the kind of a crime the police go around looking for but do you have any evidence to show that when they when they found it being committed they turned a blind a blind eye to it and and did not prosecute it the evidence we have is the is the absence of reported cases discussing arrests for that kind of conduct well that's because it's a it's a it's an act committed in private and and the police respect the privacy of of one's home of one's bedroom and so they they don't investigate and find it well it seems to me what you would need is evidence that when the police discovered this matter they said oh well these are not laws that we enforce I don't see any evidence of that sort well certainly it seems to us there's a significance to the fact that it has never been treated as for example drug use in the home it's been treated and people do the police obviously do actively seek to infiltrate homes to find that kind of activity it's been treated in a categorically different way but perhaps concerned can you characterize it I mean the ACLU brief has a lot of evidence along this line I I and it seemed to me they want to characterize it as saying that the history has gone exactly the opposite direction than what's been suggested that if you go back to Colonial times really uh the laws not only were different but look at the prosecutions and they did prosecute people for sex crimes but they didn't prosecute people for same-sex crimes and then if you go across the history it's only recently that people have been prosecuted for same-sex crimes but is that a fair characterization what is the real record the argument about 19th century enforcement is that they didn't prosecute anyone for private and consensual crimes involving adults that they worried about children they worry about public activity they worried about uh coercion but that they didn't worry about same-sex or different sex sodomy now as to the equal protection point which I think I should get to in my remaining time this is a statute which in addition to intruding into that um that area of important fundamental protections limits its at its focus just to one small minority of the people of the State of Texas it says that these specified forms of sexual intimacy called deviate sexual intercourse are illegal only for same-sex couples and not for anyone else in the state what about our statute that covered both well I think that would be unconstitutional under my first point your honor I think this is a multiple multi unconstitutional statute because it does the second thing as well it says that stature covered both would there be an equal protection argument there if there was a record of enforcement almost exclusively as to same-sex couples I think there would be potential constitutional problems there but the the statutory language itself would not involve an equal protection problem of the same sort that we're dealing with here Mr Smith aren't there are a lot of statutes like that on their statutes in many states about adultery that don't cover uh sexual relations of one of the married couple with someone else of the same sex are they unconstitutional because of denial of equal protection I don't know whether statutes actually are written that way Iran at the point I would make is that when when a statute what about rape laws they're they're rape laws that that only apply to uh to uh male female rape that that may be as well I think it seems like that they're unconstitutional I didn't suggest that they're unconstitutional my point is that when a statute is limited to one particular group of people particularly a minority of people in in the state that limitation itself has to be justified under equal protection that that's a classification of people not merely a definition of conduct and that it the justification of the line that was drawn here is is insufficient as a matter of irrational basis uh analysis because I don't understand that why suppose the state has a rape law that you know that requires requires is a penetration of the female sex organ but which is a you know the classic common law definition of of rape and it has no no law about the homosexual rape you think that that law would be unconstitutional I think it would have to be justified by the state they may well come in with evidence that this is not a problem that needs to be addressed and the victims are more able to protect themselves they would they might have one step at a time this is this is more common this is uh uh or this is something that we find more more uh more odious well the one thing that's I submit to you the court the state should not be able to come in to say is we are going to permit ourselves the majority of people in our society full full and free reign to make these decisions for ourselves but this one minority of people don't get that decision and the only reason we're going to give you is we want it that way we want them to be unequal in their choices and their freedoms because we think we should have the right to commit adultery to commit fornication to commit sodomy and that the state should have no basis for intruding into our lives but we don't want those people over there to have the same right I mean you can put it that way but Society oh in a lot of its laws makes these moral judgments you can make it sound very puritanical but you know the laws the laws against bigamy I mean who are you to tell me that I can't have more than one wife you you blue nose bigot uh sure you you can make it sound that way but these are laws dealing with public morality they've always been on the book nobody has owed ever thought they are unconstitutional simply because there are moral perceptions behind them why is this different from bigamy first of all the first law that's appeared on the books in the states of this country that singles out only same-sexodomy appeared in the 60s and 70s and it did not it does not go way back this kind of discrimination now bigamy involves protection of an institution that the state creates for its own purposes and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors through the criminal law which is where the the most heightened form of uh of equal protection analysis ought to apply this case is very much like McLaughlin around where you had a statute that said we're going to give an ex especially heightened penalty to cohabitation but only when it involves a white person with a black person that interracial cohabitation is different and the state there made the argument we're merely regulating a particular form of conduct and that's a different form of conduct than than intra-racial cohabitation in this this court very clearly said no you're classifying people it's not and that is that classification has to be justified and this court has many times said a mere disapproval of one group of people whether it be the hippie communes in Moreno or the mentally in Cleburne or indeed uh gay people oh almost all laws are based on disapproval of either some people or some sort of conduct and that's why people legislate and what this court does under the equal protection Clause is is stand as a bulwark against arbitrary government when the just there is no rational justification for the line that's drawn in order to win under an equal protection protect argument do you apply some sort of heightened screw scrutiny we certainly do not think we do your honor we think that this fails rational basis scrutiny just as the law did in Romer in Cleburne in Moreno he's an eisenstadt all of those laws were thrown out under rational basis scrutiny because the state basically didn't come up with anything other than we want it that way we want these people to be excluded we'd have distaste for them we disapprove of them it's it's it's mere disapproval or hostility however historically uh based uh is is not sufficient and certainly even applying the rational base so the opposite in Bowers didn't we essentially on that point well certainly Bowers is not a protection case and didn't involve this kind of discrimination equal protection and honor I was I was still talking about the level of scrutiny under equal protection one hand so I know which it's hard it's hard when you have these two points to shift back and I understand I had the same problem in the landscape three weeks ago yesterday um the uh but the court in applying even the rational basis standard has not been uh insensitive to the reality of what the world is like and to the fact that some groups of some classifications tend to be involving minorities that have histories of discrimination against them and that the overall effect of some line drawing can be very harmful in Roamer itself the court looked at the actual effects of the of the amendment in the Constitution and all the many ways in which it caused harm here you have a statute that while it purports just to regulate sexual behavior has all sorts of collateral effects on people people in in the states which still regulate sodomy every day they're denied visitation to their own children they're denied custody of children they're denied public employment they're denied private employment because they're labeled as criminals merely because they would identify as homosexuals and that we said if you Prevail Mr Smith uh and uh this law is uh struck down do you think that would also mean that a state could not prefer uh heterosexuals to homosexuals to teach kindergarten I think the issue difference in in the educational context would involve very different criteria your honor and very different uh considerations the state would have to come in with some sort of a justification notification is the same that's that's alluded to here disapproval of homosexuality well I think it would be highly highly problematic such a justification if that were the only justification that could be offered uh if there was not some showing that there would be any more concrete harm to the children in the school only that the children might be induced to uh to to follow the path of homosexuality and that that would not be that would not be enough well I I think the state has to have a greater justification for its discrimination than we prefer pushing people toward heterosexuality that amounts to the same thing as disapproval of people's choices in this area and there has to be a more uh reason and and justifiable distinction than simply we prefer this group of people the majority instead of this group of people the minority Justice Jackson and the Railway Express case said very eloquently that the equal protection Clause is an important bulwark against arbitrary government because it's it's there to make sure that legislators don't avoid political retribution by imposing onerous burdens only on one minority but that in fact the majority will live by the same rules it purports to impose on everybody else Mr Smith before you continued down to the equal protection line your first argument was um in right of personal privacy in one's most intimate sexual relations you were asked and you didn't get a chance to answer because you back on your equal protection track you are asking the court to overrule violence against hard work I thought that was good yes your honor you're asking to overrule it and we think that the right of of the fundamental right of unmarried people to make these choices about private adult consensual intimacy applies for different sex couples as well as same-sex couples and that Bowers was wrong for essentially three reasons first it posed the question too narrowly by focusing just on homosexual sodomy which is just one of the moral choices that couples ought to have that people ought to have available to them and second in its analysis of History which I think I explained already and third and perhaps most importantly in the assumptions that the court made in 1986 about the realities of gay lives and gay relationships the court simply asserted in devourer's case that there's no showing that has been demonstrated between the opportunity to engage in misconduct and family and certainly while it may not have been shown in that case or even a parent to the court in 1986 I submit it has to be apparent to the court now that there are gay families that family relationships are established that there are hundreds of thousands of people registered in the census in the 2000 census who have formed gay families gay Partnerships many of them raising children and that for those people the opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context that you can't protect one without the other that it doesn't make sense to draw a line there and that you should protect it for everyone that this is a fundamental matter of American values so those are the three reasons we do ask you to overrule Bowers the Hardwick as to the fundamental rights aspect of the case and we think that that is an area where the court should go should go back and reconsider itself the court has now left open for nearly 30 years the question of whether anybody outside has a right as a privacy right to engage in consensual sexual intimacy in the privacy of their home and I think I submit to you you know while the court has left that unanswered the American people have moved on to the point where that right is taken for granted for everyone uh most Americans would be shocked to find out that their decision to engage in sexual intimacy with another person in their own home might lead to a knock on the door has occurred here in a criminal prosecution and that that reality is something the court needs to take into account and certainly in so doing it shouldn't in constructing its fundamental rights edifice draw distinctions between gay couples and other couples probably say the same about adultery do you think think adultery laws are unconstitutional I think that the state has a I mean I think people probably feel the same way about that you know it may not be a nice thing to do but uh I certainly don't expect a knock on the door and go to jail for it you know adultery is a very different case it involves the state interest in protecting the marital contract which people voluntarily take on and and those so so in assessing the marital contract important to the state because it's the source of of the Next Generation right sure the estate and you think that there's not some of the same uh thinking behind the conscious choice of the state to favor heterosexual and marital sex over homosexual sex well I could I can understand a law which says we're going to attempt to channel heterosexuals toward marriage by making them making it illegal for them to have sex without marriage I can't understand that law under under that kind of rationale which only regulates same-sex couples and says you can't have sex but everybody else has a right to do that as for adultery and all of the other parade of horribles which people have raised in their briefs it seems to me you've got to look at the individual interests and the state interests and they're dramatically different in all of those cases incest process institution all of these bestiality all of these things either there's very little individual interest or there's very heightened State interests or both in all of those cases so the idea that by recognizing the right of all adult couples to make choices like this in their own home the court has got to open up a whole can of worms I submit is incorrect if I could reserve the balance of my time very well Mr Smith Mr Rosenthal will hear from you excuse me just a moment it's Marshall is that your s [Applause] Mr chief justice and may it please the court the state humbly submits that enforcement of Texas Penal Code statute 21.06 does not violate the 14th Amendment of the Constitution because this court is never recognized a fundamental right to engage in extramarital sexual conduct and because there is a rational basis for the statute sufficient to withstand equal protection scrutiny I'd like to begin with a brief discussion of substantive due process from a practitioner's standpoint it appears the jurisprudence of this court appears to resolve the means by which the court entertains the claim of Novel protected Liberty interests since the Constitution does not expressly address the issue of privacy or of sexual conduct we look to the Court's precedence and to the history of our people if the historical traditional analysis applies it then serves as objective guidepost to guide this court as long as those ideals and laws do not infringe on fundamental rights the court has maintained that designation of a liberty interest is done not done with impunity that only those interests that appear to be carefully identified asserted rights should be drawn and should be considered as Liberty interests the record in this case does not particularly show which rights the petitioners are asking to uphold I don't understand what you mean by that aren't we clear what right they're seeking to uphold those are their act they're asking for uh the right of homosexuals to engage in homosexual conduct right but there's nothing in the record to indicate that these people are homosexuals they're not homosexuals by definition if they commit one act it's our position that a heterosexual person can also violate this code if they commit an act of deviate sexual intercourse with another of the same why aren't they why aren't they seeming to vindicate the right of either homosexuals or heterosexuals to commit homosexual acts what difference does that means well the difference it makes is as as the uh as the record is set out it does not really Define the issue such that the court can actually uh give the petitioners a a specific form of relief but the the the the statute Texas has already designed that for us it has called this homosexual conduct so whether it's a heterosexual person or a a homosexual person the the crime is engaging in homosexual conduct that's correct you don't even have to get to the as I understand it you don't even have to get to the characterization of homosexual the statute clearly defines certain acts committed by together with individuals of the same sex and that's your class isn't it yes what more do we need we're the the class actually is people who violate the ACT not classes of individuals based upon sexual orientation well I I I can see that your point may have some relevance on the equal protection side of the equation some relevance I don't think it may be controlled uh it it doesn't seem to meet the arguments that's made under um the substantive Liberty are part of the argument with reference to Bowers I beg you pardon it doesn't meet the petitioner's argument with respect to Bowers versus hardwood which they say should be overruled well of course we we believe that Bowers versus Hardwick is uh is good law and substantial law and and that this court should not overrule Bowers that question is certainly clearly before us I mean this is your statute you convicted the the people for these acts and you have to be you have to defend it yes sir and uh it's our position at Bowers versus Hardwick is still good law that there's nothing that's changed about the fundamental Liberties or the the history or traditions of our country that should make the analysis in Bowers uh incorrect any longer um the petitioner also claims that the mores of our nation have changed to the point where physical homosexual enemy intimacy is now part of the fabric of American values and and as our position this could not be correct even if you infer that various States acting through their legislative process have repealed sodomy's law sodomy laws there is no protected right to engage in extra sexual extramarital sexual relations again that can trace their roots to history or the traditions of this nation another basic arguments I'm sorry I didn't get that argument here I thought you were going to say you were responding to the argument that the morals haven't changed or that the morals have changed so that homosexuality is now approved and you respond to that by saying that there's no tradition I mean that's that's a totally different argument from tradition the argument is tradition doesn't matter well history tradition does not matter in terms of whether or not it can be a protected liberty interest why do you think that the that the public perception of of homosexual acts has has not has not changed you think it hasn't the public perception of it yes yes you think there's public approval of it of homosexuals but not of homosexual activity what do you base that on I beg your pardon what do you base that on well even just I mean I think there ought to be some evidence which which you can bring forward but perhaps the failure of the federal Congress to add uh sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate that that addition has been sought several times and it's been rejected by the federal Congress hasn't it yes sir and and in addition but I was trying to to say about the fact that various states have changed their position on sodomy they've done it through the legislative process and that's where we believe this belongs is in the State House of Texas not this court but I thought you were responding to the argument that the public perception hasn't changed that there still is is is a public disapproval of homosexual Acts and you can't establish that by saying the states have repealed their homosexual laws well I think it goes back to whether the homeless where whether people in Texas and people in the other states that have this law in their books actually accepted through their representative government I think it comes down to the uh the actual people who who determine the consensus and mores of the uh of the state are the elected legislators might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right well certainly and just just because someone has decriminalized sodomy doesn't mean that they've embraced that practice as something that ought to be uh taught in this in the schools as was mentioned before the argument of Bowers to overrule Bowers is not directly related to sodomy it's related but not directly it's that people in their own bedrooms uh which have their right to do basically what they want it's not hurting other people and they the the other side says Bowers understated the importance of that it got the history wrong it didn't understand the relationship of the sodomy to families and in addition Bowers has proved to be harmful to thousands and thousands and thousands of people if not because they're going to be prosecuted because they fear it might they might be which makes it a possible instrument of of repression in the hands of the prosecutors now that's the kind of argument that they're making harmful and consequence wrong in theory understating the Constitutional value and how do you respond to that okay first of all let me let me correct something that's very minor at this point but the allegation was made in petitioner's argument that people can convicted of homosexual conduct or banned from jobs and housing and all that all that kind of thing in Texas homosexual conduct is a Class C misdemeanor that is it is the lowest misdemeanor or the lowest uh prohibition the Texas I thought I didn't bring in in my question yes sir my question was getting those sort of three or four basic points I'd like to hear your your straight answer to those points because on their face they're I mean I'm not not a criticism I mean directly responding directly responding to the to the uh to the question well it's our position that the line should be drawn at the miracle bedroom uh through which we can that law enforcement and anyone else cannot pass unless something illegal happens inside that well if this is line drawing the line at the bedroom door this case is inside the bedroom not outside that's the statute makes criminal to my understanding of it what takes place within the bedroom through consent am I right about that you're right about that why isn't that something that the state has no business getting involved in first of all let me say that because it doesn't hurt anybody first of all let me say that consent may be alleged in this case but consent's not proven uh in in the record of this case there's there's nothing in the record that shows that people are capable of giving consent or that consent was in fact given but even given that I think that the the this court having just determined that there are certain kinds of conduct that it will accept in certain kinds of conduct it will not accept May draw the line at the bedroom door of the heterosexual a married couple because of the interest that this court has that this nation has and certainly the state of Texas has for the preservation of marriage families and the procreation of children does Texas permit same-sex adoptions to women or two men to adopt a child or to be foster parents I don't know the answer to that Justice well in portraying what Texas sees as a family and distinguishing both married and unmarried heterosexual people from homosexual people [Music] those things wouldn't go together at the state at the same time said same-sex couples are qualified to raise a family you can adopt children can be foster parents you don't know what what the Texas law is on that I do not know what that Texas lost what the Texas law says in that regard I think it would be relevant to your argument that they're making that Texas is making this this distinction between kinds of people who have family relationships and can be proper guardians of children and those who can't well again um your honor we're not saying that they can't be proper Guardians and we can't say that they can't raise children that's not the issue the issue really certain that they can't procreate children aren't you we are sure that they can't do not can't do that but we're also not not uh penalizing their their status we're penalizing only the particular activity that those unmarried couples may have with respect to whether they have sexual intimacies Texas prohibit this sexual intercourse between unmarried heterosexuals well it it used to it does not do that now unless the uh sexual intimacy is in public or where someone might not understand a private situation like this it would not it would not be prohibitive it does not criminalize it it is not condoning what about adultery I beg your pardon what about adultery again adultery is not penalized in Texas but it is certainly not condoned in Texas so you said procreate or you said procreation uh marriage and children those are your three justifications now from what you've recently said I don't see what it has to do with marriage uh since in fact marriage has nothing to do with the conduct that either this or other statutes do or don't forbid I don't see what it has to do with children since in fact the gay people can certainly adopt children and they do and I don't see what it has to do with procreation because that's the same as the children all right so so what is the justification for this statute other than you know it's that what they say on the other side is this is simply I do not like thee Dr Phil the reason why I cannot tell no sir what what is it aside aside from that I think what what I'm saying is and I had not gotten into the equal protection aspect of the of the argument yet but under the equal protection argument Texas has the right to set moral standards and can set bright line moral standards for its people and in the setting of those moral standards I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist could they say for example uh it is against the law at the dinner table to tell really serious lies to your family yes they could make that a law but there would be no rational basis for the law oh really it's very immoral I mean I know there's certainly certainly immoral to tell very serious harmful lies to your own family under certain circumstances and around the dinner table some of the worst things can happen but the the the the the so so Texas could go right in there and have any kind of morality that they think is just immoral or bad cheating perhaps what about rudeness serious rudeness Etc well again uh if if Texas did pass a law it would have to have to show through some rational basis test that it's racially related to some State interest Mr Rosenthal don't you think that what laws a state may constitutionally pass has a lot to do with what laws it has always been thought that a state can constitutionally pass so that if you have a 200 Year tradition of a certain type of law and I don't know of a 200 Year tradition of laws against lying at the dinner table the presumption is that the state is within the bounds of of the Constitution to pass that law in the as declaring what it has prescribed as Contra Bonos mores a term that's been in the common law from the beginning as against good morals bigamy adultery all sorts of things like that and isn't that determined pretty much on the basis of what kind of laws the state has traditionally been allowed to certainly and it goes to it goes to things as it as diverse as uh I suppose you're going to argue that loving against Virginia was incorrectly decided are you oh certainly not and that was certainly a long tradition that supported that but it also violated the fundamental right and that's the issue here yes and the fundamental right that was asserted there is is a long established fundamental right that we don't we don't treat racism differently because we think that one's inferior or we stereotype some it was a constitutional text there it wasn't there with loving versus Virginia I thought there was something about a Civil War and no no discrimination on the basis of race yes and the same with the with the case that was cited in Florida when when did Texas select homosexual side of me as as a subject of specific uh criminal prohibition sodomy as a uh my question but my question is is about sodomy among two adults of the same sex yes sir and sodomy had had has a long-standing prediction of the history of Texas and sodomy being against the law however when when was this was the first statute passed I think 200 years was mentioned was was there a law on the books in 1803 no I don't think Texas was a state but it doesn't it doesn't have to be doesn't have to territory question Paul don't don't fall into that trap 18 3 or the first date of the Texas legislatures meeting did they pass it at the at the at the first meeting the legislation well certainly in the in the 1854 Penal Code uh the the kinds of activity that would classify now has thought of me were against the law however I think to address your question when did when did they single out homosexuals in 1973 in the passage of the 1974 penal code so the issue here doesn't have much of a long-standing tradition specific to this statute does it well not specific to not specific to that statute but it has a long-standing tradition in Texas as being something that should be prescribed in something that is regarded as immoral and unwholesome homosexual sodomy was unlawful in Texas from when there was not a statute addressed just to that it was addressed to sodomy in general but homosexual homosexual sodomy included and that law goes back how long 1803 to the time that Texas was a republican what about the statute which this court I think once had to Grapple with people felt during World War one that it was immoral to teach German in the public school so then would you say that the state has every right to do that parents want their children to learn German but the schools forbid it so the hard question here is can the state in fact pass anything at all because they believe it's immoral if you were going to draw the line somewhere I guess you might begin to draw it when the person is involved inside his own bedroom and not hurting anybody else now that that now I I so you say it's morality I I agree many people do believe that that's a question of morality many do not but but nonetheless uh what can you add to what you're saying other than simply asserting its morality because I don't think you think the state could pass anything in the name of morale certainly not but it would have the any law that it would have that would pass would have to have some rational basis to the state interest you've not given us a rational basis except to repeat the word morality yes the rational basis is that the state thinks it immoral just as the state thinks adultery immoral or or big medium moral or teaching German well that maybe we should go through Council yeah isn't isn't infestros though isn't the thrust of Justice briaries question that when when the state criminalizes Behavior as immoral customarily what it points to is not simply an isolated moral judgment or the moral judgment alone but it points to a moral judgment which is backed up by some demonstration of harm to other people we've heard questions for example about Han to a marital institution it makes sense to say whether you think the law is enforceable or not it makes sense to say that adultery threatens the the durability of a particular uh instance of marriage what kind of harm to others can you point to in this case to take it out of the category of simple moral Pro disapproval per se well part of the part of the rationale for the law is to discourage semra condo that is to discourage people who may be in jail together or one of ex want to experiment from doing the same kind of thing and I think that's I think the state can do that people can harm themselves and still be and still have it be against the law but they can take drugs and do that well do you do you point to a kind of harm here to an individual or to the individual's partner which is comparable to the the harm that results from the the harm to the deterioration of the body and the mind from drug taking I mean I I don't see the parallel between the two situations well not only not only do we say that uh morality is a basis with this but of course the amethysts have raised that there may also be Health considerations I don't know whether there is there are or not that that is not the state's claim in any case that's not the state's claim but I can't say that it's not true and obviously this this of course did you read I don't know I can't remember now who filed it but there was one medical brief filed on that subject and the the argument there was that in fact these laws are are directly antithetical to the health claim do you do you have any any comment to make on that brief yes sir there was a law filed on on behalf of the respondents that took exactly the opposite position so the the issue was open so far as as you were concerned that that would be your position yes sir for each expert there's an equal and opposite expert if you're not you're not saying the state of Texas is doing this for to protect the actors who are involved in this one one can say the state is taking action to see that people don't harm others or themselves you're not suggesting that that's the reason for this particular law well I think Texas has the right to prohibit certain conduct but if that's the reason for it why doesn't Pro Texas prohibit the conduct in a heterosexual heterosexual relationship that's it doesn't seem to be any harm because if there were a harm beyond the moral disapproval the law would not be restricted to homosexual well because heterosexual conduct in the same the same kinds of conduct and by the way it's not it's not distinguished it's still called devious sexual intercourse with heterosexual but it's not prohibited but it's not prohibited but it but it also uh can lead to marriage and to procreation and that's a that's a legitimate statement procreation that many people with the blessings of Texas can have sexual relations who are unable to procreate so I don't see how whatever that line might have meant in in Times Gone it certainly isn't true that sexual relations offer the purpose of appropriation and anything that is not for that purpose is beyond the pale if you can't make that distinction no but I think as a matter of public policy the state can make uh have can have preferences uh and and again it doesn't say that simply because heterosexual people have devious sexual intercourse if the state approves it they're they're just uh simply other sanctions that the uh that the state may imply I didn't want to briefly um uh distinguish this case from your decision in Romer versus Evans and obviously the distinction there was was that uh the uh Colorado Amendment sought to classify People based on their orientation and not their conduct and by so doing they excluded a certain class of people from the political debate now on the contrary Texas welcomes all in into the political debate in the in the last Texas legislature fortunately our legislature meets only every other year but then the last Texas legislature there was a hate crime statute passed which made it a more heinous crime to make someone a victim of crime based upon their sexual orientation and it it included all sexual orientations it included homosexuals bisexuals and heterosexuals all so I don't think we can say that across the board that there's some sort of uh Texas policy that we're trying to overall discriminated against uh against homosexuals as a group somebody wants to participate in the political process run for political office who is homosexual and the charge is made on the other side don't don't vote for this person this person is a law breaker well there is a closer connection to Roma in that regard isn't there well that that would be true if it weren't uh there's a historical fact that that's not in fact true that there have been people who have campaigned in Texas and have uh admitted their homosexuality and had been elected to office but the child they could be charged as law Breakers no ma'am they can't be charged as lawbreakers for having that orientation they can only be charged as lawbreakers if they if they commit that particular Act and then again the state does not allow any disabilities to come from uh Class C misdemeanor Acts I'm sure it's obvious to this court that the issues of homosexual rights are highly emotional for the petitioner and their supporters but equally anxious in this Courts for this Court's decision are those who are number one concerned with the rights of states to determine their own destiny and two and possibly more important those persons who are concerned that the invalidation of this little Texas statute would make Tech would make marriage laws subject to constitutional challenge that again how far behind that can there be other acts of sexual gratification brought for constitutional challenge up also there's already movements to lower the age limit of consent for children in engage in sexual practices then there are secondary effects particularly in Texas law where we are a common law state and the common law is based upon community properties shared by both spouses the state of Texas is asking this court to be mindful of the far-reaching aspects of your decision in this case so as not to disenfranchise 23 million Texans who ought to have the right to participate in questions having to do with moral issues we ask you to affirm the Texas Court of Appeals thank you Mr Rosenthal Mr Smith you have four minutes remaining thank you Mr chief justice I have just a couple of points to make I thought I might address this question of what it was that we proved in the record below and whether or not we have as a result adequately teed up the issues before the court uh by without having put in evidence directly that this was a non-coercive act or a non-commercial act or a non-public act or things of that kind our position is that this is a criminal statute that has only two elements it has a list of particular kinds of sexual intimacy that you're not allowed to engage in and they have to prove as well that the two people involved were of the same sex there was a complaint that was filed that listed those two elements my clients pleaded no contest to those two elements but said that they're an insufficient basis for imposing criminal liability on them because first of all they invade fundamental rights and second of all because it's the law is discriminatory it's while it's supposedly got a moral basis it's a discriminatory morality a morality imposed only on one category of couples in a state which does not penalize anyway adultery fornication or sodomy for people of the couples that have a different sex those were the arguments that were made and uh so our position is that that statute is unconstitutional both facially and as applied here because the state purports to impose liability based on those two elements alone and that they are a constitutionally insufficient basis both for fundamental rights reasons and because it's a discriminatory statute the other point I thought I might just address for the moment is the public health rationale which didn't come up before uh essentially what the the facts are and I think this comes out in to a large extent it's Undisputed in the Amicus briefing is the issue is not briefed in here because the Texas uh brief doesn't even attempt to make this argument but it is the the facts are that if this is the line between safe and unsafe forms of sexual intimacy it's as if the law Cuts right across it regulating some of the most safe forms of Act of sexual activity possible including for example lots of safe sex same-sex activity involving women and leaving completely unregulated all sorts of forms of unsafe sexual activity involving different sex couples so if there was ever a case of a law where the fit is egregiously uh improper and insufficient to justify the law under the rational basis test this would be such a case unless the court has further questions uh thank you very much thank you Mr Smith the case is submitted the opinion of the court number 02102 Lawrence against Texas will be announced by Justice Kennedy the question before the court has 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 police officers were dispatched to a private residence in response to a reported weapons disturbance the right of the police to enter does not seem to have been questioned at any stage in the case the police entered the apartment where one of the petitioners Joseph Gettys Lawrence resided the officers observed Lawrence and another man Tyrone Gardner engaging in a sexual act Garner is also one of the petitioners here Lawrence and Garner were arrested held in custody overnight and charged under the Texas criminal statute the statute punishes certain sexual conduct when committed by persons of the same sex the petitioners were convicted and they challenged their convictions under the due process and equal protection Clauses of the Constitution the court of appeals for the Texas 14th District affirmed the conviction they had an in-bank hearing and it was a divided a court the majority in the state court considered Boward Bowers versus Hardwick a decision issued by our court in 1986 to control the federal due process aspect of this dispute we granted certiorari to consider the Constitutional claims presented including the question whether Bowers versus Hardwick should be overruled we conclude this case should be resolved by determining whether the petitioners were free as adults to engage in this private conduct and the exercise of their Liberty under the due process clause of the 14th Amendment and for this inquiry we deem it necessary to revisit this Court's holding in Bowers virus versus Hardwick had some factual similarities to this case there too a police officer observed the petitioner in his own bedroom engaging in Intimate sexual conduct with another man and as it as in the instant case um the defendants in Bowers were adults at the time of the alleged offense and their conduct was consensual the virus Court rejected the petitioner's claims under the due process clause the virus Court began its discussion as follows it said the issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many states that still make such conduct illegal and have done so for a very long time that statement in our view discloses Bauer's failure to appreciate the extent of the Liberty at stake to say the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim put forward just as it would demean a married couple War to be said that marriage is simply about the right to have sexual intercourse the laws involved in Bowers and here are to be sure statutes that do 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 seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals writings some of which are referred to in the opinions and in many of the Mikus briefs file in this case there are criticisms of the historical premises that were relied upon by the majority and in the concurring opinions in Bowers we need not enter this debate to reach a definitive historical judgment it should be noted however that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private a substantial number of prosecutions for which there are records were for predatory acts against those who could not or did not consent as in the case of a minor the history relied upon in Bowers is more complex than the majority and concurring opinions in that case indicate the historical premises are not without doubt at the very least they are overstated now it must be acknowledged that the court in Bowers 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 religious 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 convictions 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 those views on the whole society Our obligation is to define the liberty of all not to mandate our own moral code in all events we think that our laws and traditions in the past half century are of most relevance here these show an emerging awareness that Liberty gives substantial protection to adult persons in deciding how to conduct their private lives and matters pertaining to sex we discuss in the opinion as part of that emerging awareness the legislative determinations in some of the states to repeal laws prohibiting private consensual conduct between adults and we cite the same policy and provisions of the model Penal Code promulgated by the American law Institute many of these changes already had taken place when Bowers was decided then chief justice Berger was one of the five justices in the Bowers majority he filed a separate opinion and there he made sweeping references to the history of Western Civilization into Christian moral and ethical standards that however did not take account of authorities pointing in an opposite direction including the decision of the European Court of human rights in a case called dungeon versus United Kingdom that decision with facts like Bowers and the instant case held at laws prescribing this sort of conduct are invalid under the European convention on human rights I mean in today's opinion we discussed some of the cases decided before Bowers these precedents including Griswold versus Connecticut eisenstadt versus Baird Roe versus Wade and Kerry versus population Services all limited the government's authority to enter the most private aspect of the lives of individuals the holding of ours is is inconsistent with the teaching of these cases two principal cases decided after Bowers cast its holding into even furthered out these are Planned Parenthood versus Casey and Romer versus Evans rumor versus Evans was a case decided under the equal protection clause there may be a tenable argument that the guarantee of equal protection represent renders the Texas statute unconstitutional but it is our view that the instant case requires us to address where the borrowers itself has continuing validity we conclude the rationale of powers does not withstand careful with Manassas virus was not correct when it was decided and it is not correct today it ought not to remain binding precedent Bowers versus Hardwick should be and now is overruled the present case does not involve miners it does not involve 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 formal 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 engage 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 the promise of the Constitution that there is a realm of personal Liberty which the government may not enter had those who drew and ratified the due process causes of the Fifth Amendment or the 14th Amendment known the components of Liberty in its manifold possibilities they might have been more specific they did not presume to have this insight the new times can blind us to certain truths and later generations can see that law is once thought necessary and proper in fact serve only to oppress as the Constitution endures persons in every generation can invoke its principles and their own search for greater freedom the Judgment of the court of appeals for the Texas 14th District is reversed Justice O'Connor has filed an opinion concurring in the judgment Justice Scalia has filed a dissenting opinion in which the Chief Justice and Justice Thomas joined Justice Thomas has also filed a separate dissenting opinion my Discerning opinion responds to the particular legal points made by the court I would like to summarize here just a few General considerations the Texas statute at issue here undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are as the court says quote immoral and unacceptable that is the same that is the same interest furthered by criminal laws against fornication bigamy adultery adult incest bestiality and obscenity Bowers held that this was a legitimate State interest preventing sexual behavior that the society believed immoral and unacceptable the court today reaches the opposite conclusion it Embraces instead Justice Stevens declaration in his Bowers dissent that quote 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 a close quote this this effectively decrees the end of all Mora's legislation one of the most revealing statements in today's opinion is the Court's warning that the criminalization of homosexual conduct is quote an invitation to subject homosexual persons to discrimination both in the public and in the private spheres it is clear from this that the court has taken sides in the culture War and in particular in that battle of the cultural war that concerns whether there should be any moral opprobrium attached to homosexual conduct uh for many Americans do not want persons who openly engage in homosexual conduct to be partners in their business Scout Masters for their children teachers in their children's schools or borders in their home they view this as protecting themselves and their families against a lifestyle they believe to be immoral and destructive the court however views it as discrimination which it is the function of our judgments to deter so imbued is the court with the law professions anti-anti-homosexual culture that it is seemingly unaware that the attitudes of that culture are not obviously mainstream that in Most states what the court calls discrimination against those who engage in homosexual Acts is perfectly legal that proposals to ban such discrimination under Title VII have repeatedly been rejected by Congress that in some cases such discrimination is mandated by federal statute such as the federal statute mandating discharge from the Armed Forces of any service member who engages or intends to engage in homosexual Acts and that in some cases such discrimination is a constitutional right as we have held with regard to the Boy Scouts of America let me be clear that I have nothing against homosexuals or any other group promoting their agenda through more 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 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 consensual homosexual Acts but persuading one's fellow citizens is one thing and imposing one's views in absence of democratic majority will is something else 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 as the Court's opinion says that quote later generations can see that laws once thought necessary and proper in fact serve only to oppress and when that happens later generations can repeal those laws but it is the premise of our system that those judgments are to be made by the people and not imposed by a governing caste that knows best 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 for example that their disapproval of homosexual conduct is strong enough to disallow homosexual marriage but not strong enough to criminalize private homosexual Acts and they can legislate accordingly the court today pretends 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 at the end of its opinion the court says that the present case quote does not involve whether the government must give formal recognition to any relationship that homosexual persons May seek to enter close quote do not believe it today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions if moral disapprobation of homosexual conduct is as the court says quote no legitimate State interest close quote and if as the court says casting aside all pretense at neutrality quote 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 close quote what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising what the court in today's opinion calls quote the Liberty protected by the Constitution one can believe that this case does not involve the issue of homosexual marriage only if one thinks that principle and logic have nothing to do with the decisions of this court many will hope that as the court comfortingly assures us that is so