Lawrence v. Texas (2003) Facts: basically same facts as Bowers.
Issue: The lower court argued this as an equal protection case. Kennedy, writing for the Court, argues it as a due process challenge. Is there a fundamental right of liberty?
Kennedy makes an argument different from that in previous doctrine. Before, the Court had asked, "is there a fundamental right for gay sodomy?" Kennedy, on the other hand, makes an argument that Barnett would approve of; he argues a presumption of liberty. He says that if the statute wants to be sustained, it must have state interest, and "morals" are not a state interest. Dissent:
A. Scalia likes this case to Casey. He says that the law is eroded, unpopular, and nobody actually uses it, but we're not going to overturn Roe, so we shouldn't overturn Bowers either. He poses the following hypothetical: if we follow Casey's framework, we will have even stronger reason to stick with Bowers that we have to stick with Roe! In such a situation, the Court would also have to "impose" gay marriage! (...just you wait, Justice Scalia...)
B. Thomas echoes his dissent in Griswold.
Significance: There is a presumption of liberty in rational basis due process cases. Bowers is overturned.