Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: The opinion of the court, number 02-102. Lawrence versus Texas will be announced by Justice Kennedy.

JUSTICE ANTHONY KENNEDY: The Question before 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 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 of the case.

The police entered the apartment where one of the petitioners, Joseph Lawrence, resided. Officers observed Lawrence and another man, Tyrone Garner, 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.

Now the Court of Appeals for the Fourteenth District affirmed the conviction. They had and en banc hearing and it was a divided court. The majority in the state court considered Bowers v. 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 Constitution claims presented, including the question whether Bowers v. Hardwick should be over-ruled. We conclude this case should be resolved by determining whether the petitioners were free as adults to engage in this private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment. And for this inquiry we deem it necessary to revisit this court's holding in Bowers.

Bowers v. Hardwick has some factual similarities to this case. There are two: a police officer observed the petitioner in his own bedroom engaging intimate sexual conduct with another man. As in the instant case, the defendants in Bowers were adults at the time of the alleged offense, and their conduct was consensual. The Bowers court rejected the petitioners' claim under the Due Process Clause. The Bowers court began its discussion as follows:

It said: The issue is 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 Bowers' failure to appreciate to 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 if it where said 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.

Now in academic writings, some of which are referred to in the opinions, and in many of the amicus briefs filed 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 longstanding history in this country 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, of 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 kind of nation 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 have the most relevance here. These show and emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives and in 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 Burger 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 and to Christian moral and ethical standards. That however did not take account authorities in an opposite direction, including the decision of the European Court of Humane Rights in a case called, Dujin versus United Kingdom. That decision, with facts like Bowers and the instant case held that laws prescribing this sort of conduct are invalid under the European Convention on Human Rights.

In today's opinion, we discuss some of the cases decided before Bowers. These precedents including Griswold versus Connecticut, Eisenstadt versus Baird, Roe versus Wade, Carey versus Population Services: all limited the government's authority to enter the most private aspects of the lives of individuals. The holding of Bowers is inconstant with the teaching of these cases. Two principle cases decided after Bowers caste its holding into even further doubt. These are Planned Parenthood versus Casey and Romer versus Evans.

Romer versus Evans was a case decided under the Equal Protection Clause. There may be a tenable argument that the guarantee of equal protection renders the Texas statute unconstitutional. But it is our view that the instant case requires use to address whether Bowers itself has continuing validity. We conclude the rational of Bowers does not withstand careful analysis, Bowers 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 over-ruled.

The present case does not involve minors, it does no involve persons who might be injured or coerced or who are situated in relationships where consent cannot be easily refused. Does not involve public content 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, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled 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 Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty and its manifold possibilities they might have been more specific. They did not presume to have this insight. They knew time can blind us to certain 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 Fourteenth 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 dissenting 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 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." Close quote. This effectively decrees the end of all morals 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 culture was that concerns whether there should be any moral opprobrium attached to homosexual conduct. For many Americans do not want persons who openly engage in homosexual conduct to be partners in their business, scoutmasters for their children, teachers in their children's schools, or boarders 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 embued is the court with the law profession's anti-anti-homosexual culture that it is seemingly unaware that the attitudes of that culture are obviously not main-stream.

That in most states, what the court calls discrimination against those to engage in homosexual acts is perfectly legal. That proposals to ban such discrimination under Title Seven have repeatedly be denied 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 Scout of America. 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 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 hands 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 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 possess 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.