Five justices formed the majority and joined an opinion written by Justice Anthony Kennedy. The Court ruled that Texas's law prohibiting private homosexual activity between consenting adults violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The Court did not speak of private sexual activity as a fundamental right that might require the highest "strict scrutiny" standard of judicial review. Instead, it focused on why the Court's decision in Bowers v. Hardwick was wrong.
First, the Court stated that its decision in Bowers went against its statements in cases involving child-rearing (Pierce v. Society of Sisters and Meyer v. Nebraska), contraception (Griswold v. Connecticut and Eisenstadt v. Baird), and abortion (Roe v. Wade) that the Constitution protects a right to privacy and personal autonomy. Next, Kennedy wrote that in Bowers the Court had misread the historical record regarding laws criminalizing homosexual relations. He stated that, after further research, the Court had found that historical American anti-sodomy laws had been directed at "nonprocreative sexual activity more generally," rather than specifically at homosexual acts, contrary to the Court's conclusions in Bowers. Combined with the fact that these laws were often unenforced, the Court saw this as constituting a tradition of avoiding interference with private sexual activity between consenting adults.
Lastly, Kennedy noted that Bowers's jurisprudential foundation had been weakened by two subsequent cases involving sexuality (Planned Parenthood v. Casey and Romer v. Evans), and that the reasoning of Bowers had been criticized in the United States and rejected by most other developed Western countries. For this reason, Kennedy stated that there was a jurisprudential basis to think that it should be "an integral part of human freedom" for consenting adults to choose to privately engage in sexual activity.
Kennedy wrote: "The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." Kennedy reviewed the assumption the court made in Bowers, using the words of Chief Justice Burger's concurring opinion in that case, that "Condemnation of [homosexual practices] is firmly rooted in Judeo-Christian moral and ethical standards." He reviewed the history of legislation that criminalized certain sexual practices, but without regard for the gender of those involved. He cited the Model Penal Code's recommendations since 1955, the Wolfenden Report of 1957, and a 1981 decision of the European Court of Human Rights in Case 7525/76 Dudgeon v United Kingdom.
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On June 24, 2022, the Dobbs v. Jackson Women's Health Organization decision by the Supreme Court overturned Roe v. Wade (1973) and removed the federal protection of the right to abortion, on the grounds that the "right to privacy" does not extend to that of abortion on the criteria from Washington v. Glucksberg that a right must be "deeply rooted in the Nation's history", and abortion was considered a crime, a view that some historians argued is incomplete. In the majority opinion, Justice Samuel Alito responded to the dissent opinion's concerns, saying that the ruling would not affect other substantive due process cases. In his concurring opinion, Justice Clarence Thomas, wrote, "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous' ... we have a duty to 'correct the error' established in those precedents." The three cases Thomas mentioned concerned contraception (Grisworld), sodomy (Lawrence), and same-sex marriage (Obergefell). respectively. The dissenting opinion, which criticized the majority for rejecting stare decisis and overruling precedents dating back to Griswold, responded, "Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."
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