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Lawrence v. Texas - The dissents

Lawrence v. Texas - The dissents: Encyclopedia II - Lawrence v. Texas - The dissents

Justice Antonin Scalia wrote a sharply-worded dissent, in which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, may now be open to doubt: Williams v. Pryor, which upheld Alabama's prohibition on the sale of sex toys; Milner v. Apfel, which asserted that "legislatures are permitted to legislate with regard ...

Lawrence v. Texas: Encyclopedia II - Lawrence v. Texas - The dissents

Lawrence v. Texas - The dissents

Williams v. Pryor, which upheld Alabama's prohibition on the sale of sex toys; Milner v. Apfel, which asserted that "legislatures are permitted to legislate with regard to morality...rather than confined to preventing demonstrable harms;" Holmes v. California Army National Guard, which upheld the federal statute and regulations banning from military service those who engage in homosexual conduct; Owens v. State, which held that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage."

Scalia also averred that:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.

With this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally. Some credit Scalia's dissent as heralding the later Goodridge v. Department of Public Health, the case decided by the Massachusetts Supreme Judicial Court which held that the Massachusetts Constitution requires that marriage be available to homosexual as well as heterosexual couples. (Though Scalia's dissent makes no reference to any developments that might occur in state courts, state courts generally interpret provisions of their state constitutions in accordance with U.S. Supreme Court decisions interpreting similar language.)

Justice Thomas, in a separate short opinion, wrote that the law which the Court struck down was "uncommonly silly" (a phrase from Justice Potter Stewart's dissent in Griswold v. Connecticut), but that he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.