Antonin Scalia

Clarence Thomas

David Souter

John Paul Stevens

Ruth Bader Ginsburg

Stephen Breyer

Kent D. Syverud

 JUSTICE O'CONNOR, concurring. 
 
 I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine. The suggested approach leads to the same result in this case as that taken by the Court, and the Court's opinion, as I read it, is consistent with my analysis. 
 
 
 I 
 
 
 The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive 
 entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. 
 E.g., Larkin v. Grendel's Den, Inc., 
 
 
 459 U. S. 116 
 
 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. 
 See generally Abington School District v. Schempp, 
 
 
 374 U. S. 203 
 
 (1963). 
 
 
 
 Our prior cases have used the three-part test articulated in 
 Lemon v. Kurtzman, 
 
 
 403 U. S. 602 
 
 , 
 
 403 U. S. 612 
 
 -613 (1971), as a guide to detecting these two forms of unconstitutional government action. 
 
 * 
 
 It has never been entirely clear, however, 
 how the three parts of the test relate to the principles enshrined in the Establishment Clause. Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the 
 Lemon 
 test as an analytical device. 
 
 
 
 
 II 
 
 
 In this case, as even the District Court found, there is no institutional entanglement. Nevertheless, the respondents contend that the political divisiveness caused by Pawtucket's display of its creche violates the excessive entanglement prong of the 
 Lemon 
 test. The Court's opinion follows the suggestion in 
 Mueller v. Allen, 
 
 
 463 U. S. 388 
 
 , 
 
 463 U. S. 403 
 
 -404, n. 11 (1983), and concludes that "no inquiry into potential political divisiveness is even called for" in this case. 
 Ante 
 at 
 
 465 U. S. 684 
 
 . In my view, political divisiveness along religious lines should not be an independent test of constitutionality. 
 
 Although several of our cases have discussed political divisiveness under the entanglement prong of 
 Lemon, see, e.g., Committee for Public Education & Religious Liberty v. Nyquist, 
 
 
 413 U. S. 756 
 
 , 
 
 413 U. S. 796 
 
 (1973); 
 Lemon v. Kurtzman, supra, 
 at 
 
 403 U. S. 623 
 
 , we have never relied on divisiveness as an independent ground for holding a government practice unconstitutional. Guessing the potential for political divisiveness inherent in a government practice is simply too speculative an enterprise, in part because the existence of the litigation, as this case illustrates, itself may affect the political response to the government practice. Political divisiveness is admittedly an evil addressed by the Establishment Clause. Its existence may be evidence that institutional entanglement is excessive or that a government practice is perceived as an endorsement of religion. But the constitutional inquiry should focus ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness itself. The entanglement prong of the 
 Lemon 
 test is properly limited to institutional entanglement. 
 
 
 
 
 
 III 
 
 
 The central issue in this case is whether Pawtucket has endorsed Christianity by its display of the creche. To answer that question, we must examine both what Pawtucket intended to communicate in displaying the creche and what message the city's display actually conveyed. The purpose and effect prongs of the 
 Lemon 
 test represent these two aspects of the meaning of the city's action. 
 
 The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective" meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them, the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government "speaks" by word or deed, some portion of the audience will inevitably receive a message determined by the "objective" content of the statement, and some portion will inevitably receive the intended message. Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning. 
 
 The purpose prong of the 
 Lemon 
 test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid. 
 
 
 A 
 
 
 The purpose prong of the 
 Lemon 
 test requires that a government activity have a secular purpose. That requirement 
 is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes. In 
 Stone v. Graham, 
 
 
 449 U. S. 39 
 
 (1980), for example, the Court held that posting copies of the Ten Commandments in schools violated the purpose prong of the 
 Lemon 
 test, yet the State plainly had some secular objectives, such as instilling most of the values of the Ten Commandments and illustrating their connection to our legal system, 
 but see 
 449 U.S. at 
 
 449 U. S. 41 
 
 . 
 See also Abington School District v. Schempp, 
 374 U.S. at 
 
 374 U. S. 223 
 
 -224. The proper inquiry under the purpose prong of 
 Lemon, 
 I submit, is whether the government intends to convey a message of endorsement or disapproval of religion. 
 
 
 
 Applying that formulation to this case, I would find that Pawtucket did not intend to convey any message of endorsement of Christianity or disapproval of non-Christian religions. The evident purpose of including the creche in the larger display was not promotion of the religious content of the creche, but celebration of the public holiday through its traditional symbols. Celebration of public holidays, which have cultural significance even if they also have religious aspects, is a legitimate secular purpose. 
 
 The District Court's finding that the display of the creche had no secular purpose was based on erroneous reasoning. The District Court believed that it should ascertain the city's purpose in displaying the creche separate and apart from the general purpose in setting up the display. It also found that, because the tradition-celebrating purpose was suspect in the court's eyes, the city's use of an unarguably religious symbol "raises an inference" of intent to endorse. When viewed in light of correct legal principles, the District Court's finding of unlawful purpose was clearly erroneous. 
 
 
 B 
 
 
 Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the 
 Lemon 
 test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, 
 even as a primary effect, advancement or inhibition of religion. The laws upheld in 
 Walz v. Tax Comm'n, 
 
 
 397 U. S. 664 
 
 (1970) (tax exemption for religious, educational, and charitable organizations), in 
 McGowan v. Maryland, 
 
 
 366 U. S. 420 
 
 (1961) (mandatory Sunday closing law), and in 
 Zorach v. Clauson, 
 
 
 343 U. S. 306 
 
 (1952) (released time from school for off-campus religious instruction), had such effects, but they did not violate the Establishment Clause. What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community. 
 
 
 
 Pawtucket's display of its creche, I believe, does not communicate a message that the government intends to endorse the Christian beliefs represented by the creche. Although the religious and indeed sectarian significance of the creche, as the District Court found, is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the display -as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content. The display celebrates a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion. The holiday itself has very strong secular components and traditions. Government celebration of the holiday, which is extremely common, generally is not understood to endorse the religious content of the holiday, just as government celebration of Thanksgiving is not so understood. The creche is a traditional symbol of the holiday that is very commonly displayed along with purely secular symbols, as it was in Pawtucket. 
 
 These features combine to make the government's display of the creche in this particular physical setting no more an endorsement of religion than such governmental "acknowledgments" 
 of religion as legislative prayers of the type approved in 
 Marsh v. Chambers, 
 
 
 463 U. S. 783 
 
 (1983), government declaration of Thanksgiving as a public holiday, printing of "In God We Trust" on coins, and opening court sessions with "God save the United States and this honorable court." Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs. The display of the creche likewise serves a secular purpose -celebration of a public holiday with traditional symbols. It cannot fairly be understood to convey a message of government endorsement of religion. It is significant in this regard that the creche display apparently caused no political divisiveness prior to the filing of this lawsuit, although Pawtucket had incorporated the creche in its annual Christmas display for some years. For these reasons, I conclude that Pawtucket's display of the creche does not have the effect of communicating endorsement of Christianity. 
 
 
 
 The District Court's subsidiary findings on the effect test are consistent with this conclusion. The court found as facts that the creche has a religious content, that it would not be seen as an insignificant part of the display, that its religious content is not neutralized by the setting, that the display is celebratory and not instructional, and that the city did not seek to counteract any possible religious message. These findings do not imply that the creche communicates government approval of Christianity. The District Court also found, however, that the government was understood to place its imprimatur on the religious content of the creche. But whether a government activity communicates endorsement of religion is not a question of simple historical fact. 
 Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts. The District Court's conclusion concerning the effect of Pawtucket's display of its creche was in error as a matter of law. 
 
 
 
 
 IV 
 
 
 Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded. Government practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny. 
 
 The city of Pawtucket is alleged to have violated the Establishment Clause by endorsing the Christian beliefs represented by the creche included in its Christmas display. Giving the challenged practice the careful scrutiny it deserves, I cannot say that the particular creche display at issue in this case was intended to endorse or had the effect of endorsing Christianity. I agree with the Court that the judgment below must be reversed. 
 
 
 "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.'" 
 
 403 U.S. at 
 
 403 U. S. 612 
 
 -613 (citations omitted). Though phrased as a uniformly applicable test for constitutionality, this three-part test "provides 
 no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges." 
 Mueller v. Allen, 
 
 
 463 U. S. 388 
 
 , 
 
 463 U. S. 394 
 
 (1983) (quoting 
 Hunt v. McNair, 
 
 
 413 U. S. 734 
 
 , 
 
 413 U. S. 741 
 
 (1973)). 
 
 
 Moreover, the Court has held that a statute or practice that plainly embodies an intentional discrimination among religions must be closely fitted to a compelling state purpose in order to survive constitutional challenge. 
 See Larson v. Valente, 
 
 
 456 U. S. 228 
 
 (1982). As the Court's opinion observes, 
 ante 
 at 
 
 465 U. S. 687 
 
 , n. 13, this case does not involve such discrimination. The 
 Larson 
 standard, I believe, may be assimilated to the 
 Lemon 
 test in the clarified version I propose. Plain intentional discrimination should give rise to a presumption, which may be overcome by a showing of compelling purpose and close fit, that the challenged government conduct constitutes an endorsement of the favored religion or a disapproval of the disfavored. 
 
Notes
 * The Court wrote in 
 Lemon v. Kurtzman 
 that a statute must pass three tests to withstand Establishment Clause challenge. 

Byron White

William Rehnquist

Anthony Kennedy

 JUSTICE O'CONNOR, concurring in the judgment. 
 
 The Court today overrules 
 Bowers v. Hardwick 
 , 
 478 U.S. 186 
 (1986). I joined 
 Bowers 
 , and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause. 
 
 The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." 
 Cleburne v. Cleburne Living Center, Inc. 
 , 
 473 U.S. 432 
 , 439 (1985); see also 
 Plyler v. Doe 
 , 
 457 U.S. 202 
 , 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." 
 Cleburne v. Cleburne Living Center, supra 
 , at 440; see also 
 Department of Agriculture v. Moreno 
 , 
 413 U.S. 528 
 , 534 (1973); 
 Romer v. Evans 
 , 
 517 U.S. 620 
 , 632-633 (1996); 
 Nordlinger v. Hahn 
 , 
 505 U.S. 1 
 , 11-12 (1992). 
 
 Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the 
 
 
 [580] 
 
 
 democratic processes." 
 Cleburne v. Cleburne Living Center, supra 
 , at 440; see also 
 Fitzgerald v. Racing Assn. of Central Iowa, ante, 
 p. 103; 
 Williamson v. Lee Optical of Okla., Inc. 
 , 
 348 U.S. 483 
 (1955). We have consistently held, however, that some objectives, such as "a bare. . . desire to harm a politically unpopular group," are not legitimate state interests. 
 Department of Agriculture v. Moreno 
 , 
 supra 
 , at 534. See also 
 Cleburne v. Cleburne Living Center, supra 
 , at 446-447; 
 Romer v. Evans 
 , 
 supra 
 , at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. 
 
 We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In 
 Department of Agriculture v. Moreno 
 , for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "'discriminate against hippies.'" 413 U.S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. 
 Id. 
 , at 535-538. In 
 Eisenstadt v. Baird 
 , 
 405 U.S. 438 
 , 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in 
 Cleburne v. Cleburne Living Center, supra 
 , we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences--like fraternity houses and apartment buildings--did not have to obtain such a permit. And in 
 Romer v. Evans, 
 we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"--specifically, homosexuals. 517 U.S., at 632. 
 
 
 [581] 
 
 
 The dissent apparently agrees that if these cases have 
 stare decisis 
 effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See 
 post 
 , at 17-18 (opinion of Scalia, J.). 
 
 The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06. 
 
 The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See 
 State v. Morales 
 , 869 S.W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 
 do 
 occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. As the Court notes, see 
 ante 
 , at 15, petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, 
 e.g. 
 , Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251 (a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, 
 e.g. 
 , Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S.C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. 
 ante 
 , at 15. 
 
 And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas 
 
 
 [582] 
 
 
 itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." 
 State v. Morales 
 , 826 S.W. 2d 201, 203 (Tex. App. 1992). 
 
 Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In 
 Bowers 
 , we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U.S., at 196. The only question in front of the Court in 
 Bowers 
 was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. 
 Id. 
 , at 188, n.2. 
 Bowers 
 did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished. 
 
 This case raises a different issue than 
 Bowers: 
 whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, 
 e.g. 
 , 
 Department of Agriculture v. Moreno, supra 
 , at 534; 
 Romer v. Evans 
 , 517 U.S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. 
 
 
 [583] 
 
 
 Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." 
 Id. 
 , at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." 
 Id. 
 , at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." 
 Id. 
 , at 634. 
 
 Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." 
 Id. 
 , at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." 
 Ante 
 , at 14. 
 
 Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander 
 per se 
 because the word "ho 
 
 
 [584] 
 
 
 mosexual" "impute[s] the commission of a crime." 
 Plumley v. Landmark Chevrolet, Inc. 
 , 122 F.3d 308, 310 (CA5 1997) (applying Texas law); see also 
 Head v. Newton 
 , 596 S.W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, 
 being 
 homosexual carries the presumption of being a criminal. See 
 State v. Morales 
 , 826 S.W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See 
 ibid. 
 In 
 Romer 
 v. 
 Evans 
 , we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U.S., at 633. The same is true here. The Equal Protection Clause "'neither knows nor tolerates classes among citizens.'" 
 Id. 
 , at 623 (quoting 
 Plessy v. Ferguson 
 , 
 163 U.S. 537 
 , 559 (1896) (Harlan, J. dissenting)). 
 
 A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass. . . cannot be reconciled with" the Equal Protection Clause. 
 Plyler v. Doe 
 , 457 U.S., at 239 (Powell, J., concurring). 
 
 Whether a sodomy law that is neutral both in effect and application, see 
 Yick Wo v. Hopkins 
 , 
 118 U.S. 356 
 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a 
 
 
 [585] 
 
 
 law would not long stand in our democratic society. In the words of Justice Jackson: 
 
 
 "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." 
 Railway Express Agency, Inc. v. New York 
 , 
 336 U.S. 106 
 , 112-113 (1949) (concurring opinion). 
 
 
 That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. 
 
 A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional. 
 
 
 [586] 
 
 
 
 

 JUSTICE O'CONNOR, concurring. 
 
 The issue of abortion is one of the most contentious and controversial in contemporary American society. It presents extraordinarily difficult questions that, as the Court recognizes, involve "virtually irreconcilable points of view." 
 Ante, 
 at 921. The specific question we face today is whether Nebraska's attempt to proscribe a particular method of abortion, commonly known as "partial birth abortion," is constitutional. For the reasons stated in the Court's opinion, I agree that Nebraska's statute cannot be reconciled with our decision in 
 Planned Parenthood of Southeastern Pa. 
 v. 
 Casey, 
 
 505 U. S. 833 
 (1992), and is therefore unconstitutional. I write separately to emphasize the following points. 
 
 First, the Nebraska statute is inconsistent with 
 Casey 
 because it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother. See 
 id., 
 at 879 (plurality opinion). Importantly, Nebraska's own statutory scheme underscores this constitutional infirmity. As we held in 
 Casey, 
 prior to viability "the woman has a right to choose to terminate her pregnancy." 
 Id., 
 at 870. After the fetus has become viable, States may substantially regulate and even proscribe abortion, but any such regulation or proscription must contain an exception for instances "'where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" 
 Id., 
 at 879 (quoting 
 Roe 
 v. 
 Wade, 
 
 410 U. S. 113 
 , 165 (1973)). Nebraska has recognized this constitutional limitation in its separate statute generally proscribing postviability abortions. See Neb. Rev. Stat. Ann. § 28-329 (Supp. 1999). That statute provides that "[n]o abortion shall be performed after the time at which, in the sound medical judgment of the attending physician, the unborn child clearly appears to have reached viability, 
 except when necessary to 
 
 
 preserve the life or health of the mother." Ibid. 
 (emphasis added). Because even a postviability proscription of abortion would be invalid absent a health exception, Nebraska's ban on previability partial birth abortions, under the circumstances presented here, must include a health exception as well, since the State's interest in regulating abortions before viability is "considerably weaker" than after viability. 
 Ante, 
 at 930. The statute at issue here, however, only excepts those procedures "necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury." Neb. Rev. Stat. Ann. § 28-328(1) (Supp. 1999). This lack of a health exception necessarily renders the statute unconstitutional. 
 
 
 
 
 
 Contrary to the assertions of JUSTICE KENNEDY and JusTICE THOMAS, the need for a health exception does not arise from "the individual views of Dr. Carhart and his supporters." 
 Post, 
 at 969 (KENNEDY, J., dissenting); see also 
 post, 
 at 1012-1013 (THOMAS, J., dissenting). Rather, as the majority explains, where, as here, "a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view," 
 ante, 
 at 937, then Nebraska cannot say that the procedure will not, in some circumstances, be "necessary to preserve the life or health of the mother." Accordingly, our precedent requires that the statute include a health exception. 
 
 Second, Nebraska's statute is unconstitutional on the alternative and independent ground that it imposes an undue burden on a woman's right to choose to terminate her pregnancy before viability. Nebraska's ban covers not just the dilation and extraction (D&X) procedure, but also the dilation and evacuation (D&E) procedure, "the most commonly used method for performing previability second trimester abortions." 
 Ante, 
 at 945. The statute defines the banned procedure as "deliberately and intentionally delivering into the vagina a living unborn child, 
 or a substantial portion 
 
 
 thereof, 
 for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child." Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999) (emphasis added). As the Court explains, the medical evidence establishes that the D&E procedure is included in this definition. Thus, it is not possible to interpret the statute's language as applying only to the D&X procedure. Moreover, it is significant that both the District Court and the Court of Appeals interpreted the statute as prohibiting abortions performed using the D&E method as well as the D&X method. See 
 192 F.3d 1142 
 , 1150 
 (CA8 
 1999); 11 F. Supp. 2d 1099, 1127-1131 (Neb. 1998). We have stated on several occasions that we ordinarily defer to the construction of a state statute given it by the lower federal courts unless such a construction amounts to plain error. See, 
 e. g., Bishop 
 v. 
 Wood, 
 
 426 U. S. 341 
 , 346 (1976) ("[T]his Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion"); 
 The Tungus 
 v. 
 Skovgaard, 
 
 358 U. S. 588 
 , 596 (1959). Such deference is not unique to the abortion context, but applies generally to state statutes addressing all areas of the law. See, 
 e. g., UNUM Life Ins. Co. of America 
 v. 
 Ward, 
 
 526 U. S. 358 
 , 368 (1999) ("notice-prejudice" rule in state insurance law); 
 Brockett 
 v. 
 Spokane Arcades, Inc., 
 
 472 U. S. 491 
 , 499 (1985) (moral nuisance law); 
 Runyon 
 v. 
 McCrary, 
 
 427 U. S. 160 
 , 181 (1976) (statute of limitations for personal injury actions); 
 Bishop 
 v. 
 Wood, supra, 
 at 346, n. 10 (city employment ordinance). Given this construction, the statute is impermissible. Indeed, Nebraska conceded at oral argument that "the State could not prohibit the D&E procedure." Tr. of Oral Arg. 10. By proscribing the most commonly used method for previability second trimester abortions, see 
 ante, 
 at 924, the statute creates a "substantial obstacle to a woman seeking an abortion," 
 Casey, supra, 
 at 884, and therefore imposes 
 an undue burden on a woman's right to terminate her pregnancy prior to viability. 
 
 
 
 
 
 
 
 
 
 It is important to note that, unlike Nebraska, some other States have enacted statutes more narrowly tailored to proscribing the D&X procedure alone. Some of those statutes have done so by specifically excluding from their coverage the most common methods of abortion, such as the D&E and vacuum aspiration procedures. For example, the Kansas statute states that its ban does not apply to the "(A) [s]uction curettage abortion procedure; (B) suction aspiration abortion procedure; or 
 (C) 
 dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the pregnant woman." Kan. Stat. Ann. § 656721(b)(2) (Supp. 1998). The Utah statute similarly provides that its prohibition "does not include the dilation and evacuation procedure involving dismemberment prior to removal, the suction curettage procedure, or the suction aspiration procedure for abortion." Utah Code Ann. § 76-7310.5(1)(a) (1999). Likewise, the Montana statute defines the banned procedure as one in which "(A) the living fetus is removed intact from the uterus until only the head remains in the uterus; (B) all or a part of the intracranial contents of the fetus are evacuated; 
 (C) 
 the head of the fetus is compressed; and (D) following fetal demise, the fetus is removed from the birth canal." Mont. Code Ann. § 50-20401(3)(c)(ii) (Supp. 1999). By restricting their prohibitions to the D&X procedure exclusively, the Kansas, Utah, and Montana statutes avoid a principal defect of the Nebraska law. 
 
 If Nebraska's statute limited its application to the D&X procedure and included an exception for the life and health of the mother, the question presented would be quite different from the one we face today. As we held in 
 Casey, 
 an abortion regulation constitutes an undue burden if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." 
 505 U. S., at 877. If there were adequate alternative methods for a woman safely to obtain an abortion before viability, it is unlikely that prohibiting the D&X procedure alone would "amount in practical terms to a substantial obstacle to a woman seeking an abortion." 
 Id., 
 at 884. Thus, a ban on partial birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view. 
 
 
 
 
 
 Nebraska's statute, however, does not meet these criteria. 
 
 It contains no exception for when the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother; and it proscribes not only the D&X procedure but also the D&E procedure, the most commonly used method for previability second trimester abortions, thus making it an undue burden on a woman's right to terminate her pregnancy. For these reasons, I agree with the Court that Nebraska's law is unconstitutional. 
 

NAME / TITLE	TYPE
Grutter v. Bollinger	Supreme Court Opinion
Lynch v. Donnelly	Supreme Court Opinion
Akron v. Akron Ctr. for Reprod. Health	Supreme Court Opinion
City of Richmond v. J. A. Croson Co	Supreme Court Opinion
Lawrence v. Texas	Supreme Court Opinion
Planned Parenthood of Southeastern Pa. v. Casey	Supreme Court Opinion
Stenberg v. Carhart	Supreme Court Opinion

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Queen of the Center

July 11, 2005

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