In its opinion, the Court points to Griswold v. Connecticut, 381 U.S. 479, 481-482 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972), stating these cases protected the right to privacy “in the bedroom,” whether the couple is married or unmarried. These cases, however, had nothing to do with “substantive due process” and are therefore irrelevant. Furthermore, as recognized in Bowers it is also irrelevant whether the statute targeted homosexual conduct as a distinct matter, as “the only relevant point is that it was criminalized,” (Lawrence et al. v. Texas, No. 02-102, 26 June 2003), therefore not deeming homosexual sodomy a right “deeply rooted in our Nation’s history and tradition” Lawrence et al. v. Texas, No. 02-102, 26 June 2003. An “emerging awareness,” however, referred to by the Court in Lawrence, is not such a right, and therefore does not have “fundamental right” status.

Many of the decisions made in years following Bowers’ announcement suggested that the court’s decision was still a moot point. In Romer v. Evans, 517 U.S. 620, 624, the court struck down class-based legislation against homosexuals, broadening the penumbra around the court’s decision in Bowers. Furthermore, although Bowers relied heavily on values shared with wider civilization, the court’s holding in that very case has been rejected by the European Court of Human Rights, and as such, nothing indicates that there is a legitimate governmental interest affected in this country more so than in any other country. Additionally, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the court stated that:

The justices’ perspectives on the issue of homosexual rights have not changed over time, although those of the Court as a whole have. Justices Scalia and Rehnquist, both of whom ruled with the majority in Bowers, dissent in Lawrence; Justice Stevens dissented in Bowers and ruled with the majority in Lawrence; Justice O’Connor, while concurring with the majority in some aspects of Lawrence, consistently upheld the ruling in Bowers. The difference, therefore, is not the justices’ opinions, but the justices themselves. Justices Breyer, Kennedy, Souter, and Ginsburg, all appointed between the decisions of Bowers and Lawrence, have quite liberal viewpoints. As justices’ opinions remain consistent, only the appointment of more conservative or liberal justices will bring changes; the law evolves solely around the justices.

Homosexual sodomy was a capital crime under Roman law…During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed…Blackstone described the “infamous crime against nature” as an offense of “deeper” malignity that rape, a heinous act “the very mention of which is a disgrace to human nature” and “a crime not fit to be named.” Bowers v. Hardwick, 478 U.S. 186 (1986)

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