Justice Antonin Scalia‘s dissent in Lawrence v. Texas (the sodomy case) is, as usual, a pure joy to read. It should also, once and for all, silence those who think there is any prayer of him being confirmed Chief Justice if Mr. Rehnquist retires.

He begins by wryly noting the Court’s proclivity for stare decisis in preserving a made-up right to abortion, as contrasted by its willingness to dismiss a much more defensible ruling here. He then fisks their reasoning:

Most of the rest of today’s opinion has no relevance to its actual holding–that the Texas statute “furthers no legitimate state interest which can justify” its application to petitioners under rational-basis review. Though there is discussion of “fundamental proposition[s],” and “fundamental decisions,”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 appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: “[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” 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.


Today, however, the widespread opposition to Bowers, a decision resolving an issue as “intensely divisive” as the issue in Roe, is offered as a reason in favor of overruling it.

* * *
Today’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely divisive” decision) if: (1) its foundations have been “eroded” by subsequent decisions; (2) it has been subject to “substantial and continuing” criticism; and (3) it has not induced “individual or societal reliance” that counsels against overturning. The problem is that Roe itself–which today’s majority surely has no disposition to overrule–satisfies these conditions to at least the same degree as Bowers.

So true. He goes on to illucidate this point in the next several paragraphs.

He continues:

[Texas’ sodomy law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided . . . . 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. 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 tradition,’ ” (fundamental liberty interests must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental” “[W]e have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ … but also that it be an interest traditionally protected by our society”; “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)). 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.

Pretty good stuff. Read the rest.

Again, I agree with the policy outcome here. But I would much prefer the citizens of Texas to enact that preference via their elected representatives. To the extent that public mores on these matters is changing, my guess is it would have happened in the next decade or so anyway.

Note: I’ve redacted all citation information for ease of reading; it’s all there in the text at the linked location.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Hoochie Coochie says:

    I find it ironic that it’s our own Republican appointees that have screwed us over with rulings like this. What are the liberals so concerned about anyway? Republicans are renowned not only for shooting ourselves in the foot but in the asses as well (a feat only they could pull off).