Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.It's a great piece of reasoning, up to the end when Scalia uses the marriage restriction to, as Razor likes to say, put the rabbit in the hat. Likewise, when O'Connor makes the argument that the law affects homosexuals as a distinct group, Scalia is again on the ball:
Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.Again, it's pretty reasonable, up to the end. I know that the court, particularly Scalia's side, is typically averse to the recognition of unenumerated rights (though I'm pretty certain that the 9th Amendment demands attention in that matter), but Reynolds has a good short summary of why the onus is, in this case, not on the individual to prove a new right. It's on the government to do more to prove the necessity of an incursion into the realm of liberty. The Constitutionalist argument cuts both ways in this case. Surely it's possible to argue that the Constitution mentions no specific right to privacy; just as surely can it be argued that the Constitution nowhere enumerates any powers that would be odious to the concept of privacy and, in fact, is in spirit quite contrary to such powers (as in the 4th and 5th Amendments). In combination with the 9th Amendment, the plain text would indicate that it is up to the government to make a compelling case that a law threatening privacy or liberty is warranted. I see no such argument.