Brief of Petitioners

I. Section 21.06 Violates Constitutional Rights to Liberty and Privacy Possessed by All Americans.

"It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, 505 U.S. at 847. It is well settled that the Due Process Clause of the Fourteenth Amendment guarantees the personal liberty of Americans against encroachment by the States, and that this protection of liberty encompasses substantive fundamental rights and interests that are unenumerated. See, e.g., Troxel v. Granville, 530 U.S. 57, 65–66 (2000); Casey, 505 U.S. at 846–51; Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278–79 (1990); Carey v. Population Servs. Int'l, 431 U.S. 678, 684–85 (1977); Moore v. City of E. Cleveland, 431 U.S. 494, 501–03 (1977); Roe v. Wade, 410 U.S. 113, 152–53 (1973); Griswold, 381 U.S. at 482–85; Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923). Giving substance to "liberty" is necessary to maintain the individual freedoms that are the essence of American democracy, while also allowing government action that is justified by the collective good. See Casey, 505 U.S. at 849–51.

Among the liberties protected by the Constitution is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult, including one of the same sex. This extremely personal sphere implicates three aspects of liberty that have long been recognized as fundamental: the interests in intimate associations, in bodily integrity, and in the privacy of the home. For the State to limit and dictate the intimate choices of American couples in this realm without any substantial justification is repugnant to ordered liberty. Stare decisis does not require continued adherence to the Court's contrary decision in Bowers.

A. American Adults Have Fundamental Liberty and Privacy Interests in Making Their Own Choices About Private, Consensual Sexual Relations.

1. Well-Established Protections for Intimate Relationships, Bodily Integrity, and the Privacy of the Home Converge in This Vital Freedom.

Being forced into a life without sexual intimacy would represent an intolerable and fundamental deprivation for the overwhelming majority of individuals. Equally repugnant is any form of external compulsion to engage in sexual relations. There should be no doubt, then, that the Constitution imposes substantive limits on the power of government to compel, forbid, or regulate the intimate details of private sexual relations between two consenting adults.

All adults have the same fundamental liberty interests in their private consensual sexual choices. This fundamental protection is rooted in three well-recognized aspects of personal liberty—in intimate relationships, in bodily integrity, and in the privacy of the home. These aspects of liberty should not be viewed as "a series of isolated points," but are part of a "rational continuum" that constitutes the full scope of liberty of a free people. Casey, 505 U.S. at 848 (quotation marks omitted); see also Board of Regents v. Roth, 408 U.S. 564, 572 (1972) ("In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed"). Sexual intimacy marks an intensely personal and vital part of that continuum.

The Court has recognized that "choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984). "[T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty." Id. at 619; see also Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481U.S. 537, 545–46 (1987).

The adult couple whose shared life includes sexual intimacy is undoubtedly one of the most important and profound forms of intimate association. The Court has rightly recognized that regulation of the private details of sexual relations between two adults sharing an intimate relationship has "a maximum destructive impact upon that relationship." Griswold, 381 U.S. at 485. Griswold struck down a law that intruded directly into a married couple's private sexual intimacy—and thus their intimate relationship—by criminalizing the use of contraceptives and allowing intercourse only if accompanied by the risk of pregnancy. Id. at 485–86. Since Griswold, the Court has recognized that all adults, regardless of marital status or other facets of their relationship, have the same interest in making their own intimate choices in this area. See Eisenstadt, 405 U.S. at 453 ("If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person") (emphasis in original); Casey, 505 U.S. at 898 ("The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power"); id. at 852 (reaffirming Eisenstadt and Griswold).

Sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973). One's sexual orientation, the choice of one's partner, and whether and how to connect sexually are profound attributes of personhood where compulsion by the State is anathema to liberty. Cf. Casey, 505 U.S. at 851.⁸ Thus, the essential associational freedom here is the freedom to structure one's own private sexual intimacy with another adult. Section 21.06 utterly destroys that freedom by forbidding most sexual behavior for all same-sex couples, whether they are in a committed, long-standing relationship, a growing one, or a new one.

State regulation of sexual intimacy also implicates the liberty interest in bodily integrity. "It is settled now … that the Constitution places limits on a State's right to interfere with a person's most basic decisions about … bodily integrity." Casey, 505 U.S. at 849 (citations omitted); see also id. at 896 ("state regulation … is doubly deserving of scrutiny … [where] the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman"). Stated generally, "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body." Glucksberg, 521 U.S. at 777 (Souter, J., concurring) (quotation marks omitted); see also id. at 720; Rochin v. California, 342 U.S. 165, 166, 173–74 (1952); Cruzan, 497 U.S. at 278.

Control over one's own body is fundamentally at stake in sexual relations, involving as they do the most intimate physical interactions conceivable. Like the decision whether to continue or terminate a pregnancy, or the decision whether to permit or decline medical procedures, the physical, bodily dimensions of how two persons express their sexuality in intimate relations are profoundly personal. Indeed, consent is a critically important dividing line in legal and societal views about sexuality for the very reason that individual control over sexual activity is of fundamental importance to every person's autonomy. Texas invades the liberty interest in bodily integrity by dictating that citizens may not share sexual intimacy unless they perform acts approved by the legislature, and by attempting to coerce them to select a sexual partner of the other sex.

The liberty interest at issue here also involves the deeply entrenched interest in the privacy of the home. "In the home, [the Court's] cases show, all details are intimate details, because the entire area is held safe from prying government eyes." Kyllo v. United States, 533 U.S. 27, 37 (2001) (emphasis in original); Minnesota v. Olson, 495 U.S. 91, 98 (1990) (overnight guest receives protection under "everyday expectations of privacy that we all share"). The importance of shielding the home from intrusion goes beyond the Fourth Amendment. In Frisby v. Schultz, 487 U.S. 474 (1988), for example, the Court relied on the constitutional status of the home in rejecting a First Amendment challenge to an ordinance against picketing targeted at a home. Id. at 484 ("The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society") (quotation marks omitted). And constitutional protection for the home was an important consideration in Griswold itself. See 381 U.S. at 485 (rejecting intrusion into "sacred precincts of marital bedrooms"). "[I]f the physical curtilage of the home is protected, it is surely as a result of the solicitude to protect the privacies of the life within." Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting); see also Stanley v. Georgia, 394 U.S. 557 (1969).

Even without actual physical entry by the police, Section 21.06 directly invades the privacy of the home by criminalizing the private intimate conduct taking place there. Poe, 367 U.S. at 549, 551–52 (Harlan, J., dissenting). But this case also graphically illustrates how laws criminalizing consensual adult sexual intimacy permit invasion of the privacy of the home in the starkest sense. Although Petitioners do not challenge the lawfulness of the police entry into Lawrence's home in response to a report of an armed gunman, the officers did not withdraw after discovering the report was false. Instead, under license of Section 21.06, they multiplied their intrusion exponentially by scrutinizing the specific intimate acts in which Petitioners were involved, arresting them, hauling them off to jail, and charging them with a crime for which they were later convicted.

Denying the existence of a liberty interest in private consensual adult sexual activity would give constitutional legitimacy to the grossest forms of intrusion into the homes of individuals and couples. To investigate this "criminal" conduct, the police could use every investigative method appropriate when ordinary criminal activity, such as drug use or distribution, occurs in the home: obtaining warrants to search for physical evidence of sexual activity; interrogating each member of the couple about the intimate details of the relationship; and surveillance, wiretaps, confidential informants, and questioning of neighbors. That these routine police methods are so repugnant and unthinkable in the context of adult consensual sexual relations is a strong indication that the conduct at issue differs in a fundamental way from ordinary criminal conduct that happens to occur in the home. Cf. Romer, 517 U.S. at 645 (Scalia, J., dissenting) ("'To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution'") (quoting Kadish, The Crisis of Overcriminalization, 374 Annals of Am. Acad. of Pol. & Soc. Sci. 157, 161 [1967]).⁹

The core liberty interests at stake in this case are a bulwark against an overly controlling and intrusive government. The "fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize," Pierce, 268 U.S. at 535, or "to coerce uniformity," West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943).

The right of privacy exists because democracy must impose limits on the extent of control and direction that the state exercises over the day-to-day conduct of individual lives…. People do not meaningfully govern themselves if their lives are … molded into standard, rigid, normalized roles.

Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 783, 804–05 (1989).

2. There Is No Constitutional Exception to Liberty for Gay and Lesbian Citizens.

Gay and lesbian Americans have the same liberty interests as heterosexuals in private consensual sexual intimacy free from unwarranted intrusion by the State. Gay adults, like their heterosexual counterparts, have vital interests in their intimate relationships, their bodily integrity, and the sanctity of their homes. Today, family lives centered on same-sex relationships are apparent in households and communities throughout the country. Likewise, the special interplay between the privacy of the home and individual decisions about sexual expression applies to lesbians and gay men as it does to others.

A gay or lesbian sexual orientation is a normal and natural manifestation of human sexuality. A difference in sexual orientation means a difference only in that one personal characteristic. Mental health professionals have universally rejected the erroneous belief that homosexuality is a disease. For example, in 1973 the American Psychiatric Association concluded that "homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities."¹⁰ For gay adults, as for heterosexual ones, sexual expression is integrally linked to forming and nurturing the close personal bonds that give humans the love, attachment, and intimacy they need to thrive. See, e.g., Lawrence A. Kurdeck, Sexuality in Homosexual and Heterosexual Couples, in Sexuality in Close Relationships 177–91 (K. McKinney & S. Sprecher eds., 1991); Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by "Unenforced" Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103, 119–20 (2000). "[M]ost lesbians and gay men want intimate relationships and are successful in creating them. Homosexual partnerships appear no more vulnerable to problems and dissatisfactions than their heterosexual counterparts." Letitia A. Peplau, Lesbian and Gay Relationships, in Homosexuality 177, 195 (J. Gonsiorek & J. Weinrich eds., 1991). Same-sex relationships often last a lifetime, and provide deep sustenance to each member of the couple. See, e.g., A. Steven Bryant & Demian, Relationship Characteristics of American Gay and Lesbian Couples, 1 J. Gay & Lesbian Soc. Servs. 101 (1994).

That gay Americans have exactly the same vital interests as all others in their bodily integrity and the privacy of their homes is so plain that it appears never to have been disputed in the law. In contrast, the vital liberty interest that gay adults have in their intimate relationships has not always been recognized. Even a few decades ago, intense societal pressure, including many anti-gay government measures, ensured that the vast majority of gay people hid their sexual orientation—even from their own parents—and thus hid the important intimate relationships that gave meaning to their lives. See infra Point II.B.2. Lesbians and gay men, moreover, were falsely seen as sick and dangerous. See infra at 46. As recently as 1986, it was still possible not to perceive the existence and dignity of the families formed by gay adults. See, e.g., Bowers, 478 U.S. at 191, 195.

Today, the reality of these families is undeniable. The 2000 United States Census identified more than 600,000 households of same-sex partners nationally, including almost 43,000 in Texas. These families live in 99.3% of American counties.¹¹ Many state and local governments and thousands of private employers have adopted domestic partner benefits or more extensive protections for same-sex couples.¹² Virtually every State permits gay men and lesbians to adopt children individually, jointly and/or through "second-parent adoptions" that are analogous to stepparent adoptions. See, e.g., Lofton v. Kearney, 157 F. Supp. 2d 1372, 1374 n.1 (S.D. Fla. 2001) (observing that Florida is currently "the only state" "to statutorily ban adoption by gay or lesbian adults"); American Law Inst., Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.12 cmt. f, at 312 (2002). These and other legal doctrines have secured parental bonds for many of the estimated millions of children in the United States with gay parents. Ellen C. Perrin, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341, 341 & n.1 (Feb. 2002) (estimating one to nine million children with at least one lesbian or gay parent); see also, e.g., T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (allowing claim for partial custody by lesbian second parent under in loco parentis doctrine).

The reality of these families cannot be disregarded just because they do not match the "nuclear" model of a married couple with their biological children. See, e.g., Troxel, 530 U.S. at 63 ("The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household"); id. at 85 (Stevens, J., dissenting); id. at 98–101 (Kennedy, J., dissenting); Michael H. v. Gerald D., 491 U.S. 110, 124 n.3 (1989) (plurality opinion) ("The family unit accorded traditional respect in our society … includes the household of unmarried parents and their children"). For gay men and lesbians, their family life—their intimate associations and the homes in which they nurture those relationships—is every bit as meaningful and important as family life is to heterosexuals.

Thus, the liberty interest at issue here should not be defined in terms of sexual orientation as the "right of homosexuals to engage in acts of sodomy," Bowers, 478 U.S. at 191, or reduced in value on that account. If heterosexual adults have a fundamental interest in consensual sexual intimacy, including the choice to engage in oral or anal sex, then so too must homosexual adults. The Due Process Clause itself does not distinguish among classes of citizens, extending the Constitution's shield to the highly personal associations and choices of some, but not protecting the very same associations and choices for others. These liberties are important to and protected for all Americans.

3. Objective Considerations Support Recognition of Fundamental Interests Here.

To ensure that its decisions in this area are firmly grounded, the Court has sought objective guideposts for the recognition of fundamental liberties. See County of Sacramento v. Lewis, 523 U.S. 833, 857–58 (1998) (Kennedy, J., concurring, joined by O'Connor, J.) (emphasizing that "objective considerations," including but not limited to "history and precedent," determine substantive due process interests). As just discussed, this Court's precedents and our constitutional structure indicate that the personal liberty protected by the Constitution must include adults' private choices about sexual intimacy. Foremost among other guideposts has been the history of legislation concerning the matter at hand, from prior centuries through the present. See, e.g., Glucksberg, 521 U.S. at 710–19.

In reviewing relevant legal traditions, the Court has made clear that protected liberty interests are not limited to those explicitly recognized when the Fourteenth Amendment was ratified. Casey, 505 U.S. at 847, 850 ("such a view would be inconsistent with our law"); Rochin, 342 U.S. at 171–72 ("To believe that … judicial exercise of judgment could be avoided by freezing 'due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges"). Abundant examples exist of the Court giving meaning to contemporary truths about freedom, where earlier generations had failed to acknowledge and specify an essential aspect of liberty. See, e.g., Turner v. Safley, 482 U.S. 78, 94–99 (1987); Roe, 410 U.S. at 152–53; Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold, 381 U.S. at 482–85; Pierce, 268 U.S. at 534–35; Meyer, 262 U.S. at 399–400. See generally Casey, 505 U.S. at 847–48.

Similarly, in cases rejecting asserted liberty interests, the Court's decisions have never rested on past legal history alone. Because constitutional "tradition is a living thing," Casey, 505 U.S. at 850 (quotation marks omitted), the Court has always deemed it essential that the relevant legal tradition have continuing vitality today. In Glucksberg, for example, the Court rejected the claimed liberty interest in doctor-assisted suicide based not only on the common law's criminalization of assisted suicide, but also on the fact that "the States' assisted-suicide bans have in recent years been reexamined and, generally"—with a single exception—"reaffirmed." 521 U.S. at 716; see also Michael H., 491 U.S. at 127. Even in Bowers, the Court looked not only to criminal laws concerning sodomy in 1787 and 1868, but also to the fact that half the States continued to outlaw such conduct in 1986. 478 U.S. at 192–94.¹³

Over the last half century, the Nation has firmly broken from its prior legal tradition of criminalizing many adult choices about private sexual intimacy. Even before 1960, however, the relevant legal tradition is more complicated than an initial examination might reveal. Bowers observed that when the Fourteenth Amendment was ratified, 32 of 37 States had criminal laws against sodomy. 478 U.S. at 192–93. But a critical feature of those 19th century and earlier laws was not discussed by the Bowers majority: Almost without exception, such laws historically have applied to certain specified sex acts without regard to whether same-sex or different-sex couples were involved. See, e.g., Anne B. Goldstein, History, Homosexuality, and Political Values,97 Yale L.J. 1073, 1082–86 (1988).¹⁴ In addition, actual prosecutions for private intimacy have been exceedingly rare since the Nation's founding. See John D'Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 66–67 (1988). And the scope of the specific sexual conduct covered has varied over time. See, e.g., Goldstein, 97 Yale L.J. at 1085–86.

Texas law is a case in point. A Texas statute adopted in 1860 penalized "the abominable and detestable crime against nature" for all persons, Tex. Pen. Code art. 342 (1860); supra note 2, and an amendment in 1943 extended that ban to oral sex for all persons, 1943 Tex. Gen. Laws ch. 112, § 1. See supra at 5. Only in 1973 did Texas—like a handful of other States in the same period—replace its general ban with one that singled out the sexual intimacy of same-sex couples for criminal prohibition. 1973 Tex. Gen. Laws ch. 399, §§ 1, 3.¹⁵ Thus, our Nation has no longstanding legal tradition of defining permissible or prohibited sexual conduct in terms of sexual orientation. Rather, the tradition exemplified by actual legislation is one of facial neutrality. The few discriminatory laws singling out lesbians and gay men show the divide that existed in the 1970s and 1980s between the majority's view of its own liberties and its lingering anti-gay attitudes.

Most importantly, however, both evenhanded and discriminatory bans on private sexual conduct between consenting adults have been rejected in contemporary times. Since the 1960s, there has been a steady stream of repeals and state judicial invalidations of laws criminalizing consensual sodomy and fornication.¹⁶ "The unmistakable trend … nationally … is to curb government intrusions at the threshold of one's door and most definitely at the threshold of one's bedroom." Jegley v. Picado, 80 S.W.3d 332, 356 (Ark. 2002) (Brown, J., concurring). By 1986, when Bowers was decided, 26 States had already removed consensual sodomy laws from their criminal codes. See 478 U.S. at 193–94. Today, only 13 States still have such prohibitions.¹⁷ Moreover, of those 13 States, Texas and the three others that have discriminatory rules have eliminated criminal prohibitions in this area for the vast majority of adult couples. Similarly, only six States and the District of Columbia still criminalize fornication.¹⁸ In contrast, when Loving was decided in 1967, 16 States still had criminal laws against interracial marriage. Loving, 388 U.S. at 6 n.5; see also id. at 12 (holding that such laws violate fundamental liberty).

The "consistency of the direction of change" among the States, Atkins v. Virginia, 122 S. Ct. 2242, 2249 (2002), is indicative of a strong national consensus reflecting profound judgments about the limits of government's intrusive powers in a civilized society. The principles and sentiments that have led the States to eliminate these laws are yet another objective indicator of the fundamental interests at stake. For example, when the Georgia Supreme Court struck down, under the state constitution, the very law upheld by this Court in Bowers, it stated: "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity." Powell v. State, 510 S.E.2d 18, 24 (Ga. 1998); accord, e.g., Gryczan v. State, 942 P.2d 112, 122 (Mont. 1997) ("all adults regardless of gender, fully and properly expect that their consensual sexual activities will not be subject to the prying eyes of others or to governmental snooping or regulation"); Campbell v. Sundquist, 926 S.W.2d 250, 261 n.9 (Tenn. App. 1996) ("Infringement of such individual rights cannot be tolerated until we tire of democracy and are ready for communism or a despotism"); Commonwealth v. Bonadio, 415 A.2d 47, 50 (Pa. 1980) ("regulat[ing] the private [sexual] conduct of consenting adults … exceeds the valid bounds of the police power"); State v. Ciuffini, 395 A.2d 904, 908 (N.J. Super. Ct. App. Div. 1978) (because consensual sodomy law only "serves as an official sanction of certain conceptions of desirable lifestyles, social mores, or individualized beliefs, it is not an appropriate exercise of the police power"). Legislative repeals reflect the same deepseated values. As Governor Jane Hull said when signing the bill repealing Arizona's sodomy law, "At the end of the day, I returned to one of my most basic beliefs about government—It does not belong in our private lives." Howard Fischer, Hull OKs Repeal of 'Archaic' Sex Laws, Ariz. Daily Star, May 9, 2001, at A1.

A final confirmation underscoring that America has repudiated a role for government as enforcer of permitted forms of intimacy is the virtually non-existent enforcement today of the laws that still are on the books. In the 13 States that still proscribe sodomy, the laws are almost never enforced in criminal proceedings against private consensual intimacy. See Bowers, 478 U.S. at 198 n.2 (Powell, J., concurring) ("prior to the complaint against respondent Hardwick, there had been no reported decision involving prosecution for private homosexual sodomy under this statute for several decades"); Morales, 826 S.W.2d at 203 ("The State concedes that it rarely, if ever, enforces § 21.06"). But as this rare case of prosecution vividly demonstrates, the laws remaining on the books still sometimes strike like lightning, causing the grossest of governmental invasions of privacy through criminal enforcement. The Court should recognize the liberty interests that Petitioners and all Americans have in being free from such invasions.

B. Texas Cannot Justify Section 21.06's Criminal Prohibition of Petitioners' and Other Adults' Private Sexual Intimacy.

Recognition of the fundamental liberty interest at stake here does not end the inquiry, for due regard must also be given to any countervailing interests the State may have and the means used to achieve them. The Court has rejected rigid or mechanical tests in this area. Rather, it has given careful consideration to any weighty governmental interests that stand opposed to a fundamental liberty interest, and has looked closely at the degree and nature of the burden on the liberty interest, before ruling on the ultimate question of constitutionality. See, e.g., Casey, 505 U.S. at 849–51 (opinion of Court); id. at 871–79 (plurality opinion of O'Connor, Kennedy, and Souter, JJ.); Troxel, 530 U.S. at 73 (plurality opinion); id. at 101–02 (Kennedy, J., dissenting); Cruzan, 497 U.S. at 280–81.

Here, however, there is no countervailing State interest remotely comparable to those weighed by this Court in other recent cases involving fundamental liberties, such as the State's interests in protecting the potentiality of human life, Casey, 505 U.S. at 871–79 (opinion of O'Connor, Kennedy, and Souter, JJ.), in protecting the welfare of children, see Troxel, 530 U.S. at 73 (plurality opinion), or in protecting and preserving existing human life, Cruzan, 497 U.S. at 280–81. See also Glucksberg, 521 U.S. at 728–35 (reviewing numerous "important and legitimate" interests furthered by ban on assisted suicide).

In stark contrast to those cases, counsel for Texas has conceded that Section 21.06 furthers no compelling state interest. Pet. App. 76a. The sole justification urged throughout this litigation by the State is the majority's desire to espouse prevailing moral principles and values. See, e.g., State's Br. in Supp. of Reh'g En Banc 16. The State claims no distinct harm or public interest other than a pure statement of moral condemnation. This Court, however, has never allowed fundamental freedoms to be circumscribed simply to enforce majority preferences or moral views concerning deeply personal matters. See, e.g., Casey, 505 U.S. at 850–51. Indeed, the discriminatory moral standard employed in the Homosexual Conduct Law is illegitimate under the Equal Protection Clause. See infra Point II.

In arriving at the constitutional balance, the Court must also consider that Texas is using "the full power of the criminal law." Poe, 367 U.S. at 548 (Harlan, J., dissenting). Section 21.06 empowered the police to inspect closely Lawrence and Garner's intimate behavior in Lawrence's home and haul them off to jail. Although prosecutions may be rare and wholly arbitrary, this case shows that the criminal penalties of such laws are on occasion enforced. Criminal sanctions always impose an extreme burden.

Lawrence and Garner were arrested and held in custody for more than a day—a humiliating invasion of personal dignity. "A custodial arrest exacts an obvious toll on an individual's liberty and privacy, even when the period of custody is relatively brief….And once the period of cus tody is over, the fact of the arrest is a permanent part of the public record." Atwater v. City of Lago Vista, 532 U.S. 318, 364–65 (2001) (O'Connor, J., dissenting). Petitioners now each have a criminal conviction for private consensual sexuality. This "finding of illegality is a burden by itself. In addition to a declaration of illegality and whatever legal consequences flow from that, the finding also poses the threat of reputational harm that is different and additional to any burden posed by other penalties." BE &K Constr. Co. v. NLRB, 122 S. Ct. 2390, 2398 (2002).

Moreover, "[t]he Texas courts have held that the crime of homosexual conduct … is a crime involving moral turpitude." In re Longstaff, 538 F. Supp. 589, 592 (N.D. Tex. 1982) (citation omitted), aff'd, 716 F.2d 1439 (5th Cir. 1983). Petitioners' convictions therefore disqualify or restrict Lawrence and Garner from practicing dozens of professions in Texas, from physician to athletic trainer to bus driver.¹⁹ In four states, Lawrence and Garner are considered sex offenders and would have to register as such with law enforcement.²⁰ And while Section 21.06 does not authorize imprisonment as a penalty, prison terms can be imposed in the 12 other States with sodomy prohibitions, in some cases up to ten years.²¹

Even where there is no direct enforcement, Section 21.06 intrudes into the privacy of innumerable homes by regulating the actual physical details of how consenting adults must conduct their most intimate relationships. As discussed above, see supra Point I.A., such an invasion starkly offends the fundamental freedom of adulthood that is at stake. The Homosexual Conduct Law's absolute criminal ban is a harsh burden for all covered by the law.

The balance in this case thus heavily favors individual liberty. Texas's justification—amounting to a mere declaration that the State disapproves of same-sex couples engaging in the conduct at issue, in the absence of any asserted public need or harm—cannot be sufficient. See Casey, 505 U.S. at 850–53; Roe, 410 U.S. at 162; Poe, 367 U.S. at 548 (Harlan, J., dissenting). If it were, the power of the government to restrict liberty interests would be unlimited. The very meaning of fundamental liberty interests is that this kind of decision—affecting the most personal and central aspects of one's life—should be made by the individual, not the State.

While Texas may advocate a majority view about sexual morality, it may not excessively burden the liberty interests of those citizens who profoundly disagree. See, e.g., Maher v. Roe, 432 U.S. 464, 475–76 (1977) ("There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity ….Constitutional con cerns are greatest when the State attempts to impose its will by force of law"). Texas may not impose its particular view through the intrusive force of a criminal law regulating the very forms of physical intimacy that consenting adults may choose in the privacy of their own homes. By claiming the power to impose its own moral code where constitutional guarantees of personal liberty are at stake, Texas is reversing the proper relationship between the government and a free people.

The Court long ago made clear that the Constitution "excludes any general power of the state to standardize its children" because "[t]he child is not the mere creature of the state." Pierce, 268 U.S. at 535; accord Troxel, 530 U.S. at 68 (plurality opinion). Yet, what Texas claims here is the power to standardize its adult citizens and render them mere creatures of the State by compelling conformity in the most private and intimate personal matters. By vote of the majority, one particular view of how to conduct one's most private relationships is imposed on all. But "fundamental rights may not be submitted to vote; they depend on the outcome of no election." Barnette, 319 U.S. at 638. The precepts advocated by Texas, aimed at "submerg[ing] the individual," are "wholly different from those upon which our institutions rest." Meyer, 262 U.S. at 402. Section 21.06 unjustifiably infringes the personal liberty and privacy guaranteed by the Constitution and should be struck down.

C. Bowers Should Not Block Recognition and Enforcement of These Fundamental Interests.

Vindication of Petitioners' constitutionally protected liberty interests should not be blocked by continued adherence to Bowers. In light of the fundamental interests at stake and the consistent and profound legal, political, and social developments since Bowers, principles of stare decisis do not bar the Court's reconsideration of that decision.

Stare decisis is a "principle of policy," not an "inexorable command." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63 (1996) (quotation marks omitted); see also, e.g., Agostini v. Felton, 521 U.S. 203, 235–36 (1997) (same). That is "particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible." Seminole Tribe, 517 U.S. at 63 (quotation marks omitted). For these reasons, the Court has not hesitated to overrule earlier constitutional decisions that have been recognized as erroneous. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 & n.1 (1991) (surveying cases); Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 1991 J. S. Ct. Hist. 13 (same).

Where, as here, a prior decision has erroneously denied a fundamental constitutional right of citizens over and against the State and no countervailing rights of other individuals are at stake, there is a compelling need to correct the error. See, e.g., Barnette, 319 U.S. at 630–42 (overruling Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 [1940]); see also, e.g., Brown v. Board of Educ., 347 U.S. 483, 494–95 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 [1896]). That is especially true here, because laws of the kind upheld by Bowers—whether facially evenhanded or discriminatory—are used to legitimize widespread discrimination against gay and lesbian Americans. See infra Point II.B.1. Indeed, the holding of Bowers itself has been cited as justifying state-sponsored discrimination. See, e.g., Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) ("If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open … to conclude that state sponsored discrimination against the class is invidious"); Romer, 517 U.S. at 641 (Scalia, J., dissenting) (same).

In this respect Bowers is fundamentally different from decisions like Roe or Miranda v. Arizona, 384 U.S. 436 (1966), which recognized individual rights that then became incorporated into the very fabric of our society. See Casey, 505 U.S. at 854; Dickerson v. United States, 530 U.S. 428, 443 (2000). Indeed, there are no considerations like those identified in Casey or other stare decisis cases that might favor continued adherence to Bowers.

Unlike the right recognized in Roe and its progeny, there is no pattern of individuals who "have relied reasonably on the [Bowers] rule's continued application" to their advantage, Casey, 505 U.S. at 855; see also, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 233 (1995). Individuals have only been harmed by the Bowers decision. Nor has Bowers become "part of our national culture," Dickerson, 530 U.S. at 443. Just the opposite is true. Developments in the law and in the facts—or in society's perception of the facts, see Casey, 505 U.S. at 863—have steadily eroded any support for Bowers. Since Bowers, the Nation has continued to reject the extreme intrusion into the realm of personal privacy approved in that case, so that now three-fourths of the States have repealed or invalidated such laws—including the very law upheld by Bowers. See supra Point I.A.3.

Also since Bowers, the Nation has steadily moved toward rejecting second-class-citizen status for gay and lesbian Americans. In Romer, this Court held that venerable equal protection principles protect gay and lesbian Americans against invidious discrimination. Thirteen States and the District of Columbia, plus countless municipalities—including at least four in Texas—have now added sexual orientation to laws barring discrimination in housing, employment, public accommodations, and other areas.²² More than half the States now have enhanced penalties for hate crimes motivated by the victim's sexual orientation.²³ And the reality of gay and lesbian couples and families with children has been increasingly recognized by the law and by society at large. See supra at 17–19. This is thus a case in which the Court must respond to basic facts and constitutional principles that the country has "come to understand already, but which the Court of an earlier day … had not been able to perceive." Casey, 505 U.S. at 863; see also, e.g., Vasquez v. Hillery, 474 U.S. 254, 266 (1986) (stare decisis must give way when necessary "to bring [the Court's] opinions into agreement with experience and with facts newly ascertained") (quotation marks omitted).

Bowers is an isolated decision that, like the cases overturned in Payne, was "decided by the narrowest of margins, over spirited dissents challenging [its] basic underpinnings." Payne, 501 U.S. at 828–29. Far from being "an essential feature of our legal tradition," Mitchell v. United States, 526 U.S. 314, 330 (1999), Bowers stands today as "a doctrinal anachronism discounted by society," Casey, 505 U.S. at 855. Many of the bedrock principles of contemporary constitutional law were announced in cases overruling contrary precedent—whether after only a few intervening years, or following decades of legal, political, and social development. See, e.g., Barnette, 319 U.S. at 630; Brown, 347 U.S. at 494–95; Gitlow v. New York, 268 U.S. 652, 666 (1925); Malloy v. Hogan, 378 U.S. 1, 4–6 (1964). As in those cases, the Court "cannot turn the clock back." Brown, 347 U.S. at 492–93. It accordingly should overturn Bowers and protect the fundamental liberty interests of Petitioners.

II. Section 21.06 Discriminates Without Any Legitimate and Rational Basis, Contrary to the Guarantee of Equal Protection.

Texas's Homosexual Conduct Law violates the Fourteenth Amendment for the additional reason that it "singl[es] out a certain class of citizens for disfavored legal status," Romer, 517 U.S. at 633, in violation of the most basic requirements of the Equal Protection Clause. The statute directly conflicts with the Constitution's "commitment to the law's neutrality." Id. at 623. It fails equal protection scrutiny even under the deferential "rational basis" standard.²⁴ And this discriminatory classification is "embodied in a criminal statute … where the power of the State weighs most heavily," a context in which the Court "must be especially sensitive to the policies of the Equal Protection Clause." McLaughlin v. Florida, 379 U.S. 184, 192 (1964).

By its terms, Section 21.06 treats the same consensual sexual behavior differently depending on who the participants are. The behaviors labeled "deviate sexual intercourse" by Texas are widely practiced by heterosexual as well as gay adults.²⁵ But the statute makes this common conduct illegal only for same-sex couples and not for different-sex ones. Tex. Pen. Code § 21.06. And the State offers only a tautological, illegitimate, and irrational purported justification for such discrimination.

The group targeted and harmed by the Homosexual Conduct Law is, of course, gay people. Gay people have a same-sex sexual orientation and heterosexuals have a different-sex one. See, e.g., John C. Gonsiorek & James D. Weinrich, The Definition and Scope of Sexual Orientation, in Homosexuality: Research Implications for Public Policy 1 (J. Gonsiorek & J. Weinrich eds., 1991) ("sexual orientation is erotic and/or affectional disposition to the same and/or opposite sex"); cf. Romer, 517 U.S. at 624, 626–31 (in civil rights laws, "sexual orientation" is defined by an individual's "choice of sexual partners" or "heterosexuality, homosexuality or bisexuality"). The Homosexual Conduct Law overtly uses that defining characteristic to set up its disparate treatment. Section 21.06 "prohibit[s] lesbians and gay men from engaging in the same conduct in which heterosexuals may legally engage." Morales, 826 S.W.2d at 204; see also Wasson, 842 S.W.2d at 502 (where same-sex but not different-sex sodomy is criminalized, "[s]exual preference, and not the act committed, determines criminality, and is being punished").

A straightforward application of the rational basis test shows that this law and Texas's attempted justification for it cannot satisfy the requirement that every classification must at least "bear a rational relationship to an independent and legitimate legislative end." Romer, 517 U.S. at 633. When broader realities and history are considered, as this Court appropriately does in any equal protection case, the constitutional violation is only magnified. The Homosexual Conduct Law and its badge of criminality function to make gay people unequal in myriad spheres of everyday life and continue an ignominious history of discrimination based on sexual orientation. Ultimately, the equal protection and liberty concerns in this case reinforce one another, and further underscore that this unequal law and its broad harms are intolerable in this country.

A. Section 21.06's Classification Is Not Rationally Related to Any Legitimate Purpose and Serves Only the Illegitimate Purpose of Disadvantaging One Group.

"[C]onventional and venerable" principles require that legislative discrimination must, at a minimum, "bear a rational relationship to an independent and legitimate legislative end." Romer, 517 U.S. at 633, 635; see also, e.g., Cleburne, 473 U.S. at 446; Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668 (1981). This test is deferential, but meaningful.

[E]ven in the ordinary equal protection case …, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sort of laws it can pass; and it marks the outer limits of [the judiciary's] own authority.

Romer, 517 U.S. at 632.

Under the Equal Protection Clause, the classification—the different treatment of different people—is what must be justified. See Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366–67 (2001) (rational basis review searches for "distinguishing characteristics" between the two groups that are "relevant to interests the State has the authority to implement") (quotation marks omitted); Rinaldi v. Yeager, 384 U.S. 305, 308–09 (1966) (equal protection "imposes a requirement of some rationality in the nature of the class singled out"); McLaughlin, 379 U.S. at 191 ("courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose—… whether there is an arbitrary or invidious discrimination between those classes covered … and those excluded"). The classification must be rationally connected to an independent and permissible government objective to "ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law." Romer, 517 U.S. at 633.

Section 21.06 fails that essential test. As the Supreme Court of Kentucky observed in striking down that State's discriminatory consensual sodomy law on state equal protection grounds:

In the final analysis we can attribute no legislative purpose to this statute except to single out homosexuals for different treatment for indulging their sexual preference by engaging in the same activity heterosexuals are now at liberty to perform ….The question is whether a society that no longer criminalizes adultery, fornication, or deviate sexual inter-course between heterosexuals, has a rational basis to single out homosexual acts for different treatment.

Wasson, 842 S.W.2d at 501. That court found no "rational basis for different treatment," and emphasized that "[w]e need not sympathize, agree with, or even understand the sexual preference of homosexuals in order to recognize their right to equal treatment before the bar of criminal justice." Id.; accord Jegley, 80 S.W.3d at 353 ("[w]e echo Kentucky in concluding that 'we can attribute no legislative purpose to this statute except to single out homosexuals'"). That conclusion applies with equal force to the identical classification employed by Texas's law.

When Texas enacted Section 21.06 in the early 1970s, there was no "practical necessity" to draw a classification among its residents with regard to the subject matter of consensual, adult oral and anal sex. Cf. Romer, 517 U.S. at 631. For decades, the State had included an evenhanded prohibition on those acts within its criminal code. When the legislature determined that its old law was unduly intrusive, it had the obvious choice of repealing it for all its citizens—as three-fourths of the States have done. See supra at 23 & note 17. Instead, it decided to single out same-sex couples for intrusive regulation and condemnation, and to free all heterosexual couples to make their own choices about particular forms of intimacy.

Throughout this litigation, the only justification that Texas has offered for this discriminatory classification is the moral judgment of the majority of its electorate. The State asserts that its "electorate evidently continues to believe" that the discriminatory line drawn by the Homosexual Conduct Law is desirable because it expresses the majority's moral views. Pet. Opp. 18.

The Homosexual Conduct Law's classification fails rational basis analysis, for several reasons. First, the State's position amounts to no "independent … legislative end" at all. Cf. Romer, 517 U.S. at 633. This "justification" merely restates that Texas believes in and wants to have this criminal law. The Equal Protection Clause requires that the State's classification serve a distinct legislative end—an objective or purpose—independent of the classification itself. There must be a "link between classification and objective," id. at 632, or "some relation between the classification and the purpose it serve[s]," id. at 633. The test would be meaningless—a mere rubberstamp for discrimination—unless the purpose is independent of the classification. But the "justification" offered by Texas is circular and not an independent objective served. In the words of the dissenters below, "[t]he contention that the same conduct is moral for some but not for others merely repeats, rather than legitimizes, the Legislature's unconstitutional edict." Pet. App. 44a.

The State's approach gives carte blanche to presumed majority sentiment, and leaves those targeted by a discriminatory law without recourse. If majority moral or value judgments were enough to answer an equal protection challenge, the amendment struck down in Romer would have survived, because the votes of a majority of Coloradans clearly signaled that including gay people within civil rights protections was antithetical to their values. Instead, this Court recognized that Amendment 2—like Section 21.06 here—was a "classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit." 517 U.S. at 635. Government "may not avoid the strictures of that Clause by deferring to the wishes or objections … of the body politic." Cleburne, 473 U.S. at 448.

Second, even if Texas's objective could somehow be characterized as independent of the classification, mere negative views about the disfavored group—"moral" or otherwise—are not a legitimate basis for legal discrimination. Cleburne, 473 U.S. at 448 ("mere negative attitudes … unsubstantiated by factors which are properly cognizable [by government] are not permissible bases" for discriminatory legal rules). This Court has many times repeated the core principle of rejecting bias, however characterized, in law: Legal distinctions may not give effect to the majority's desire to condemn an unpopular group, see Moreno, 413 U.S. at 534, the negative reactions of neighbors, see Cleburne, 473 U.S. at 448, the fears of people who are different, see id., a reaction of discomfort toward a minority, see O'Connor v. Donaldson, 422 U.S. 563, 575 (1975); Cleburne, 473 U.S. at 448–49, private prejudice, Palmore v. Sidoti, 466 U.S. 429, 433 (1984), or any other manifestation of unfounded animosity toward one group, Romer, 517 U.S. at 633–35. History unquestionably teaches that the moral views of a given time, just like fears, dislikes, and blatant prejudices, often reflect prevailing negative attitudes about different groups of people in society. Cf. Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring) ("Men feared witches and burnt women"). Indeed, negative attitudes toward a group can always be recast in terms of a discriminatory moral code. Using a moral lens to describe negative attitudes about a group that are not tied to any distinct, objective and permissible factors cannot cleanse those bare negative attitudes of their illegitimacy in government decisionmaking.

Texas's approach of dictating that same-sex couples are "more 'immoral and unacceptable,'" Pet. Opp. 18, than heterosexual couples under the very same circumstances—if they choose any of the behaviors defined as "deviate sexual intercourse"—must be rejected as impermissible. Neutral, evenhanded laws that truly restrict all persons in the same way could, if there were no fundamental interests at stake, be justified by a moral position. Here, however, Texas impermissibly attempts to impose a discriminatory moral code.²⁶ The State's law and its proffered justification embody a bald preference for those with the most common sexual orientation and dislike of a smaller group who are different. Texas simply wants to judge those with a same-sex sexual orientation more harshly for the same behavior.²⁷

The Constitution and this Court's precedents forbid that. In Palmore, a mother lost custody of her child because her interracial "'life-style'" was "'unacceptable … to society.'" 466 U.S. at 431 (quoting investigator's report). But this Court emphatically held that such negative views have no place in the law. Id. at 433 ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect"). Likewise, unequal treatment may not be based on archaic and unfounded negative attitudes toward a group, whether grounded in morality, religious conviction, or "nature." In Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), for example, the Court stressed the need to set aside archaic ideas about gender, such as that women are "innately inferior" or that unique "'moral and social problems'" would arise if women tended bar or otherwise enjoyed equal opportunities. Id. at 725 & n.10.

Similarly, negative attitudes toward those with a particular personal characteristic—even where advanced with the toned down patina of morality—are also not a legitimate justification for discrimination under rational basis scrutiny. In Romer, the Court refused to endorse the dissent's position that Amendment 2's anti-gay classification could be sustained as an attempt "to preserve traditional sexual mores," Romer, 517 U.S. at 636 (Scalia, J., dissenting). In Moreno, faced with a regulation that targeted the morally disfavored group of "hippies," the Court emphasized that "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Moreno, 413 U.S. at 534. Instead, different treatment must be supported by "reference to [some independent] considerations in the public interest." Id. (alteration in original). Whether termed a moral judgment, fear, discomfort, or bias, "mere negative attitudes" about one subset of the diverse American population cannot justify distinctions in legal treatment. See Cleburne, 473 U.S. at 448.

Third, there is no other legitimate justification that can save this law. The distinction drawn by the Homosexual Conduct Law does not rationally further any permissible goal of the State. There are no valid concerns of the government here that correlate with sexual orientation, which is a deeply rooted personal characteristic that we all have. Variation among heterosexuals, homosexuals, and bisexuals has no "relevan[cy] to interests the State has the authority to implement," Garrett, 531 U.S. at 366, or to "factors which are properly cognizable," Cleburne, 473 U.S. at 448, in writing the criminal law. Thus, Section 21.06's linedrawing does not turn on or respond to any differences in maturity or age, in intent, or in the specifics of the actors' relationship, other than its same-sex or different-sex nature. It does not incorporate the use of force, a public location, or a commercial context in its elements, to address those types of important concerns. Indeed, Texas has other laws that criminalize sexual conduct that is non-consensual, or public, or commercial, or with a minor. See supra at 6. Likewise, the law's discriminatory regulation of "deviate sexual intercourse" is unrelated to any interest in reproduction, for oral and anal sex are obviously not methods of reproduction for any couple.

Where government itself offers a reason that is illegitimate, as Texas has done here, or other factors indicate that the law rests on negative attitudes, the Court has carefully assessed any additional, purportedly rational and legitimate basis for challenged differential treatment. See Cleburne, 473 U.S. at 449 (careful assessment, and ultimate rejection, of other proffered reasons, where negative attitudes were clearly one basis for legal discrimination); Moreno, 413 U.S. at 535–38 (same). In such rational basis cases, the Court has not tried to supply new, "conceivable" reasons to support the classification. See also Romer, 517 U.S. at 635. It is, after all, only "absent some reason to infer antipathy" that the "Constitution presumes that … even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted." Vance v. Bradley 440 U.S. 93, 97 (1979) (emphasis added). Here, Texas offers nothing more than the majority's negative moral judgment to support its discrimination, and that should end the matter with a ruling of unconstitutionality.

This 1970s classification is "divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests." Romer, 517 U.S. at 635. It is solely an effort to mark a difference in status, to send a message in the criminal law that one group is condemned by the majority. This impermissible and irrational double standard must be removed from Texas's criminal code.

B. The Broader Realities Reinforce This Law's Affront to Core Principles of Equal Protection.

Additional considerations confirm the violation of equal protection here. First, the Homosexual Conduct Law does not just discriminate against gay and lesbian Texans in their private intimate relations, but brands gay persons as second-class citizens and legitimizes discrimination against them in all aspects of life. Second, the discrimination worked by this law reflects and reinforces a century-long history of discrimination against gay Americans. The real-world context and history of discrimination further expose the law's illegitimacy. See Romer, 517 U.S. at 623–31 (considering in detail the functioning and historical background of challenged enactment); Moreno, 413 U.S. at 537 (considering "practical effect" of classification); Eisenstadt, 405 U.S. at 447–52 (considering social and legal backdrop in finding equal protection violation under rational basis standard). Where a law "circumscribe[s] a class of persons characterized by some unpopular trait or affiliation," there is a "special likelihood of bias on the part of the ruling majority." N.Y. Trans. Auth. v. Beazer, 440 U.S. 568, 593 (1979).

1. The Homosexual Conduct Law Brands Gay Persons as Second-Class Citizens and Licenses Wide-Ranging Discrimination Against Them.

On the surface, the Homosexual Conduct Law may appear to discriminate against gay men and lesbians in only one sphere of life—albeit a vitally important one, see supra Point I—by criminalizing the sexual intimacy of same-sex adult couples but not the very same conduct engaged in by different-sex couples. In reality, the scope of the discrimination is much broader. Today, sodomy laws—even facially evenhanded sodomy laws—are widely understood to brand gay citizens as criminals by virtue of their sexual orientation, and are thus used to legitimate across-the-board discrimination. Texas's enactment of a facially discriminatory law formalizes that pejorative classification of lesbians and gay men as second-class citizens.

Historically, the vast majority of consensual sodomy laws have not differentiated between same-sex and different-sex couples, and nine of the 13 sodomy laws still on the books today retain that traditional characteristic of being facially evenhanded. See supra at 6 & note 5, 21–22. In recent eventimes, however, facially non-discriminatory laws have been understood as targeting gay men and lesbians rather than heterosexual couples who engage in identical forms of private sexual intimacy covered by the laws. This contemporary understanding of these laws was reflected in—and reinforced by—the Court's reasoning in Bowers, which read Georgia's facially neutral law as reflecting "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable." 478 U.S. at 196 (emphasis added). See generally Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531, 542 (1992).

Thus, in recent decades, the existence of facially nondiscriminatory sodomy laws—indeed, the mere power of state legislatures to pass such laws, whether or not that power is exercised—has been used to justify myriad forms of discrimination against gay and lesbian Americans as presumptive criminals. For example, sodomy laws are often invoked to deny or restrict gay parents' custody of or visitation with their own children,²⁸ to deny public employment to gay people,²⁹ and to block protection of gay citizens under hate-crime legislation.³⁰ Indeed, the dissent in Romer argued that the Court's holding in Bowers alone was sufficient justification for the sweeping discrimination against gay citizens worked by Colorado Amendment 2, Romer, 517 U.S. at 640–43 (Scalia, J., dissenting)—even though Colorado's former sodomy law had applied to all and had been repealed years before, see 1971 Colo. Sess. Laws ch. 121.

Texas has gone further, abandoning any pretense of nondiscriminatory legislation in this area by enacting a law that facially discriminates against gay and lesbian couples. By introducing that express classification into the criminal law, Texas has placed its imprimatur on discrimination based on sexual orientation. That has had far-reaching implications for gay citizens in virtually every area of their lives. As the State stipulated in an earlier challenge to Section 21.06, the law "brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law," including "in the context of employment, family issues, and housing." Morales, 826 S.W.2d at 202–03; see also Jegley, 80 S.W.3d at 343 (under same-sex-only sodomy laws, gay people "suffer the brand of criminal impressed upon them by a[n] … unconstitutional law").

The Homosexual Conduct Law and similar statutes in other States have been routinely invoked to limit the custody or visitation that fit, gay parents would otherwise have with their own children.³¹ Likewise, this law is cited as a basis for preventing lesbians and gay men from serving as foster parents, simply because of their presumed "criminal status" and wholly apart from any inquiry into the best interests of children awaiting a home. See, e.g., Polly Hughes, Bill Would Ban Gay Texans From Adopting Children, Hous. Chron., Dec. 11, 1998, at A38 (reporting on adoption and foster-care policies). Section 21.06 and other discriminatory consensual sodomy offenses have been used to interfere with equal employment opportunities for lesbians and gay men. England, 846 S.W.2d at 958; Childers v. Dallas Police Dep't, 513 F. Supp. 134, 144, 147–48 (N.D. Tex. 1981) (upholding denial of employment to gay man), aff'd, 669 F.2d 732 (5th Cir. 1982); Baker, 553 F. Supp. at 1130, 1147. These laws are also used to block the adoption of civil rights ordinances that would prohibit sexual orientation discrimination in employment and other core aspects of civil society.³² The Homosexual Conduct Law has even been cited in arguments for imposing the death penalty on a gay defendant, Burdine v. Johnson, 66 F. Supp. 2d 854, 857 (S.D. Tex. 1999), aff'd, 262 F.3d 336 (5th Cir. 2001) (en banc), cert. denied, 122 S. Ct. 2347 (2002). In these many ways and others, the Homosexual Conduct Law is functioning as a legal reference point that endorses gay inequality.

Thus, even in the absence of actual arrest and prosecution, the Homosexual Conduct Law labels gay men and lesbians as criminals and legitimates discrimination against them on that basis.³³ Classification of gay Texans as second-class citizens is indeed the primary function of this law in society, as evidenced by the rarity of direct criminal enforcement. Texas makes no pretense of vigorously enforcing this law or of actually preventing any private, consensual adult sexual behavior. Morales, 826 S.W.2d at 203 ("The State concedes that it rarely, if ever, enforces § 21.06"). Only rare couples who are caught through some extremely unlucky series of events, like Lawrence and Garner in this case, ever directly suffer criminal prosecution and punishment for their discreet intimacy. Model Penal Code § 213.2 cmt. 2 ("To the extent … that laws against deviate sexual behavior are enforced against private conduct between consenting adults, the result is episodic and capricious selection of an infinitesimal fraction of offenders for severe punishment"). The branding function of the Homosexual Conduct Law and the civil harms that follow from it forcefully underscore that the law violates equal protection. It "has the peculiar property of imposing a broad and undifferentiated disability on a single named group," Romer, 517 U.S. at 632, without rational and legitimate justification.

2. The Homosexual Conduct Law Reflects and Helps Fuel a Continuing History of Discrimination Against Gay Americans.

The Homosexual Conduct Law is only one manifestation of a history of irrational anti-gay discrimination.³⁴ Although our Nation has no legal tradition making the criminality of private sexuality turn on whether a couple is homosexual or heterosexual, see supra at 21–22, the laws of this Nation have reflected and played a role in virulent anti-gay discrimination over the last century. In enforcing the Equal Protection Clause today, this history informs the Court's assessment of whether a legal classification that discriminates against those with a same-sex sexual orientation rests on irrational bias. See Vance, 440 U.S. at 97 (Court is attuned to "some reason to infer antipathy"); see also, e.g., Romer, 517 U.S. at 624–31.

Anti-gay discrimination was long justified by the false view that gay individuals were "sick." Until 1973, the year Section 21.06 was passed, homosexuality was incorrectly classified as a mental disease. See supra note 10; see also Boutilier v. INS, 387 U.S. 118 (1967) (holding that "psychopathic personality" exclusion in immigration law applied to homosexual persons). Deeming them to be "sex deviants," States involuntarily committed gay men and lesbians to mental institutions under extremely inhumane conditions. See, e.g., James A. Garland, The Low Road to Violence: Governmental Discrimination as a Catalyst for Pandemic Hate Crime, 10 L. & Sexuality 1, 75–76 (2001). "Treatments" to "cure" homosexuality were often sadistically cruel. See, e.g., Jonathan N. Katz, Gay/Lesbian Almanac 156 (1983) (describing "treatment" involving "repeated searing with a hot iron or chemical of [the] 'pervert' patient's loins"); Jonathan N. Katz, Gay American History: Lesbians and Gay Men in the U.S.A. 129–208 (rev. ed. 1992). Even today, discredited "therapies" to "change" the very sexual orientation of gay adults continue this destructive pathologizing of gay citizens.³⁵

The Homosexual Conduct Law is a remnant of a historical pattern of repressive law enforcement measures that have reinforced an outcast status for gay citizens. In the past, state laws authorized the arrest of individuals simply for "appearing" to be gay or lesbian, and the closure of businesses simply for serving gay patrons. See, e.g., One Eleven Wines & Liquors, Inc. v. Division of Alcohol Beverage Control, 235 A.2d 12, 14 (N.J. 1967) (reviewing and rejecting agency policy of suspending businesses' licenses simply for "permitting the congregation of apparent homosexuals"). McCarthy-era and later witch hunts led to the firing from federal and federal-contractor employment of thousands of persons suspected of being homosexuals. Katz, Gay American History, at 91–109; Norton v. Macy, 417 F.2d 1161, 1162 (D.C. Cir. 1969).³⁶

Official repression has often been directed at preventing gay Americans from organizing politically to advocate for and protect their rights. The earliest gay political organization in America, formed in Chicago in the mid-1920s, was silenced by police raids, arrests, and firings from employment. See, e.g, William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 438 & n.77 (2001). Similar groups that emerged after World War II also suffered severe harassment. See, e.g., id. at 443–48. Educational publications about homosexuality were censored as "obscene." See, e.g., One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957), rev'd, 355 U.S. 371 (1958) (per curiam).

Since the late 1960s and early 1970s, gay Americans have made substantial strides toward securing equal rights. See supra at 17–19, 30–31. But there is still substantial inequality and backlash. In passing a statute last year that protects against sexual-orientation discrimination, the New York state legislature found that anti-gay prejudice "has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering." N.Y. Sexual Orientation Non-Discrimination Act, 2002 N.Y. Laws ch. 2. Cruel anti-gay harassment in schools remains common. See, e.g., Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996). And violence motivated by irrational hatred of gay people can result in crimes of unimaginable brutality, as occurred with the murder of college student Matthew Shepard. See, e.g., A Vicious Attack on Gay Student, Beaten, Burned and Left for Dead, N.Y. Newsday, Oct. 10, 1998, at A4. Such killings, together with lesser forms of violence, intimidation, and discrimination, remain extremely effective in deterring gay Americans from revealing their sexual orientation, and thus from working openly to end anti-gay discrimination. By marking gay men and lesbians as criminals, discriminatory sodomy laws reinforce and intensify the irrational prejudice that leads to such violence. See Leslie, Creating Criminals, 35 Harv. C.R.-C.L. L. Rev. at 124.

The Constitution "neither knows nor tolerates classes among citizens." Romer, 517 U.S. at 623 (quotation marks omitted). In distinguishing laws based on hostility from ordinary legislative linedrawing, the Court should not ignore the persistent and destructive American history of anti-gay discrimination. The Homosexual Conduct Law is the State's own endorsement of discrimination against gay men and lesbians.

C. Equal Protection Concerns Are Particularly Strong Here Because of the Personal Burdens Imposed by This Criminal Law.

The Constitution's equal protection and due process protections are articulated together. U.S. Const. amend. XIV, § 1. Those dual safeguards reinforce one another, including in cases where liberty concerns may not rise to the level of a fundamental right or may be indirectly implicated. In this case, regardless of the Court's ultimate ruling on Point I, the personal burdens and restrictions on freedom imposed by Section 21.06 strengthen the need to reject its discriminatory classification.

On numerous occasions, the Court has held that where an extremely important personal interest is at stake, the State may not grant some citizens the ability to vindicate that interest but altogether deny other citizens that ability, even if the State could employ an evenhanded denial to all citizens. For example, there is no due process right to appellate review of decrees severing the parent-child bond. M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996). Where, however, the State grants review of such decrees to its citizens generally, it may not deny review to the few who cannot pay costs. Id. at 107; see also, e.g., Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (although there is no right to obtain divorce, where State makes divorce available to most couples, it may not bar indigent persons from divorce due to inability to pay). That is so, even though wealth classifications are not inherently suspect, see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973), and the imposition of costs on litigants is otherwise rationally related to a legitimate state interest, M.L.B., 519 U.S. at 123. Because the imposition of costs in M.L.B. at least indirectly implicated "state controls or intrusions on family relationships," id. at 116, the Court closely examined the unique burden the State had placed on the poor and rejected it as offensive to the combined guarantees of equal protection and due process. See id. at 120. The constitutional challenge in this case is also of an especially serious order, because it "endeavor[s] to defend against the States's destruction of family bonds, and to resist the brand associated with" criminality that is now imposed only on the deeply personal and intimate sexual relations of gay adults. Cf. id. at 125. As in M.L.B., the outcome here should "reflect both equal protection and due process concerns." Id. at 120.

Similarly, there is no fundamental right to an education, and undocumented aliens are not a suspect class, but in light of the importance of the interest in education in our society, a law barring undocumented aliens from receiving a state-funded education will be rigorously scrutinized. Plyler v. Doe, 457 U.S. 202, 216–24 (1982). The nature of the deprivation, though not a fundamental right, informs and strengthens the equal protection claim. As the Court reasoned in Plyler, exclusion of one isolated group from such an important sphere "poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit." Id. at 221–22. It imposes a "stigma" that "will mark them for the rest of their lives." Id. at 223. Here, too, the Court must not ignore the stigma and the obstacle to equal advancement in society that accompanies the discriminatory law that Texas seeks to defend in assessing its validity under the Equal Protection Clause. This classification likewise "involve[s] the State in the creation of permanent class distinctions" and relegates gay men and lesbians to "second-class social status." Cf. id. at 234 (Blackmun, J., concurring).

The Equal Protection Clause is a critical guardian of liberty as well as equality. It defends against unreasonable exactions by the State because it "requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." Cruzan, 497 U.S. at 300 (Scalia, J., concurring); accord Railway Express Agency v. New York, 336 U.S. 106, 112–13 (1949) (Jackson, J., concurring). The Texas Homosexual Conduct Law makes a mockery of that principle. Just as the majority may not decide that the availability of divorce or education is critical for the majority itself but then deny those benefits to a few, so Texas may not determine that freedom from state intrusion into the private sexual intimacy of two consenting adults is an important aspect of liberty for most of its citizens, but then deny that liberty to a minority—particularly a minority historically subject to discrimination. Consensual sexual decisions are too clearly matters for individual decisionmaking, not for imposition by the State. The discriminatory criminal law at issue here seriously diminishes the personal relationships and legal standing of a distinct class, and under the Fourteenth Amendment cannot stand.