Boy Scouts of America v. Dale, 530 U.S. 640, 60 (2000)

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Cite as: 530 U. S. 640 (2000)

Stevens, J., dissenting

VI

Unfavorable opinions about homosexuals "have ancient roots." Bowers v. Hardwick, 478 U. S. 186, 192 (1986). Like equally atavistic opinions about certain racial groups, those roots have been nourished by sectarian doctrine. Id., at 196-197 (Burger, C. J., concurring); Loving v. Virginia, 388 U. S. 1, 3 (1967).27 See also Mathews v. Lucas, 427 U. S. 495, 520 (1976) (Stevens, J., dissenting) ("Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white"). Over the years, however, interaction with real people, rather than mere adherence to traditional ways of thinking about members of unfamiliar classes, have modified those opinions. A few examples: The American Psychiatric Association's and the American Psychological Association's removal of "homo-sexuality" from their lists of mental disorders; 28 a move

toward greater understanding within some religious communities; 29 Justice Blackmun's classic opinion in Bowers; 30

27 In Loving, the trial judge gave this explanation of the rationale for Virginia's antimiscegenation statute: " 'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.' " 388 U. S., at 3.

28 Brief for American Psychological Association as Amicus Curiae 8.

29 See n. 3, supra.

30 The significance of that opinion is magnified by comparing it with Justice Blackmun's vote 10 years earlier in Doe v. Commonwealth's Attorney for City of Richmond, 425 U. S. 901 (1976). In that case, six Justices— including Justice Blackmun—voted to summarily affirm the District Court's rejection of the same due process argument that was later rejected in Bowers. Two years later, furthermore, Justice Blackmun joined in a dissent in University of Missouri v. Gay Lib, 434 U. S. 1080 (1978). In that case, the university had denied recognition to a student gay rights organization. The student group argued that in doing so, the university had violated its free speech and free association rights. The Court of

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