594
Scalia, J., dissenting
Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not " 'deeply rooted in this Nation's history and tradition,' " id., at 192.
The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is " 'deeply rooted in this Nation's history and tradition,' " the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.
I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.
III
The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due
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