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The Supreme Court apotheosized the right of privacy in its now-famous words: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”…

Editor’s Note: This essay continues a discussion of the Supreme Court’s sexual “right of privacy” cases, which are the primary “precedents” being discussed in connection with the nomination of Brett Kavanaugh to the United States Supreme Court.

After the case of Eisenstadt v. Baird (1972) extended the sexual jurisprudence of Griswold v. Connecticut‘s (1965) “marital bedroom” to any bedroom, the Supreme Court went on to evolve the right of privacy into a feminine one, a woman’s right to abortion, in Roe v. Wade. Women have their own constitutional rights. Then, in Danforth and Carey, the Court abolished parental moral authority over female teenagers and established the teenage right to privacy about contraception and abortion. Each case was unprecedented in that the Court had never before expropriated any of those areas of state and family law from the constitutional authority of the states. The Court, on the other hand, said that its unprecedented decision in Griswold was a precedent for all the subsequent decisions.

The right of privacy temporarily placed on hold

This essay chronicles how the Supreme Court advanced its constitutional right of privacy from contraception and abortion to homosexuality. But first, there was a detour into the traditional constitutional jurisprudence under a Constitution that divides political power between the federal government and the states.

In Bowers v. Hardwick (1986), a homosexual was arrested but never prosecuted for violation of the Georgia state sodomy law. Because the court of appeals had used the privacy cases to overturn the Georgia law, the Supreme Court had to take the case. In a 6-3 decision written by Justice White, the Court upheld the Georgia law and repudiated the appeals court’s reliance on Griswold, Eisenstadt, Roe, and Carey. The Bowers Court denied that the right of privacy established by those cases bore “any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.” The Court thus made the kind of distinction about justiciability that it had ignored in stretching the right of privacy again and again in the privacy cases.

The Court said that any claim that sodomy concerned a “fundamental liberty” was refuted by the history and current status of sodomy in legal history and state law and could only be regarded as “at best, facetious.” The Court said that its rulings “come nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” And against the accusation that the law was based on the illegitimate “presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable,” the Court answered that “the law, however, is constantly based on notions of morality.” We are “unpersuaded,” the Court said, “that the sodomy laws of some 25 states should be invalidated on this basis.”

From a right of privacy to “defining one’s own concept of existence”

Six years after Bowers and before returning to the subject of homosexuality, the Court issued an opinion that not only became the basis of its subsequent homosexuality decisions but also remains in the history of the Court—and in the history of the country—as a more-than-landmark event in judicial, political, social, moral, and even religious philosophy.

In Planned Parenthood v. Casey (1992), the Court re-affirmed Roe, again overturned a requirement that a woman notify her husband before an abortion, but allowed a requirement that a minor get the consent of one parent as long as there is a judicial bypass available. Instead of the normal single author, whose opinion is “joined in” by other Justices, the almost unprecedented opinion for the Court was jointly authored by three Justices, Reagan-appointees Anthony Kennedy and Sandra Day O’Connor and Bush-I-appointee David Souter. It included a lengthy dissertation about “precedent” which the Court used to defend the basic right-to-an-abortion of Roe. The Court not only defended the “precedent” of Roe, but in a lengthy dissertation on judicial precedence in general, compared the significance of Roe to that of Brown v. Board of Education.

In a direct comparison to the civil rights movement, the Court said there are times when “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It may be remarked that today, 26 years later, the plea of the Court about this supposedly settled “common mandate” still has not caused an “end” to the abortion controversy. In addition, before Roe there was no “national controversy” about abortion. It was Roe that made the abortion controversy “national.” At the time of Roe, abortion had been legalized in only eight states.

In equating Roe to Brown v. Board of Education, the Court said that it had “thus addressed the Nation only twice in our lifetime.” That is, among precedents, those two decisions were a kind of super-precedent. They were of “rare precedential force.” The Court enunciated its view not only of judicial supremacy but also of “the root of American governmental power,” which “is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court.”

As for the right of privacy, the Court apotheosized it. In its now-famous words:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Overall, then, according to Casey, the right of sexual privacy, as proclaimed by the federal judiciary—the public institution which is “the root” of American government—is doubly “central” and at “the heart” of American democracy. Indeed, the right of privacy is beyond law; it is a right of “autonomy.”

About marriage specifically, the Casey Court said that “throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusion in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice.”

That statement was false, for, except for its ruling in Loving v. Virginia (1967) overturning Virginia’s ban on inter-racial marriage, the Court had not ruled on marriage, because, until the modern Court, marriage had been recognized as one of the exclusive powers of the state. The Casey Court refuted itself and proved this very point, for it could refer only to Roe and to Eisenstadt (which was, in fact, about the individual, not the marital right) to support its claimed “century” of holdings about marriage.

The “precedent” of Bowers repudiated

In Romer v. Evans (1996), the Supreme Court entered the field of homosexuality by overturning an amendment to the Colorado state constitution, which had been approved by 53 percent of voters in a statewide referendum. The amendment forbade affirmative-action status for homosexuals by any state or local governments and was passed in response to local governments, e.g. Boulder, Aspen, doing just that.

In the 6-3 decision, Justice Anthony Kennedy wrote the opinion for the Court and was joined by Casey co-authors O’Connor and Souter, together with Ford-appointee John Paul Stevens and Clinton-appointees Ruth Bader Ginsburg and Stephen Breyer. This became the first of five opinions of Justice Kennedy about homosexual rights. He had not been on the Court in Bowers.

Referring to the recent ordinances of the Colorado local governments that provided for special treatment for homosexuals, Justice Kennedy said that there was a new “tradition” that was “emerging” from the common law about affirmative statutory protections for certain groups of people. He essentially labeled it the new civil rights and compared it to issues like sex discrimination. But as for applying the “emerging tradition” to homosexuals, he was unable to cite any other state—this was 1996—besides Colorado. Thus, the “emerging tradition” was substituted for any available federal-judicial or state-legislative precedents, of which there were none.

In Romer, Justice Kennedy did not base his majority opinion on the privacy line of cases and, indeed, he never mentioned them. Instead, he invented a new kind of constitutional law that became the basis and necessary foundation of his four later opinions on homosexuality: Persons have constitutional standing to overturn democratically enacted laws if they are offended by them. Justice Kennedy said that Colorado voters had voted in the state constitutional amendment, a “status based” enactment, out of an “animus” and “animosity” against homosexuals that had been “born out of a bare desire to harm a politically unpopular group.” In Romer, he likewise began his habit of imposing his own morality and lecturing the country on its morality, or lack thereof: “It is not within our constitutional traditions to enact laws of this sort”—although he had previously said that that the “tradition” was just now “emerging.”

Citing Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896) that we are a classless society, Justice Kennedy and the five other justices in the majority established homosexuals as a new constitutional class. And he accomplished that without the help of any legislature, state, or federal, and without any reference to the Court’s precedential jurisprudence about the “suspect classes” of race, national origin, and religious affiliation. Thus, he not only invented a new suspect class, he may have, if the subsequent cases are any indication, invented a super-suspect class. For the class of homosexuals, the Colorado statute violated the Equal Protection Clause, he concluded.

In dissent, Justice Antonin Scalia, after wondering why the majority had not explicitly overturned the precedent of Bowers, said that the Court’s decision involved reversing the meaning of “equal protection” from non-discrimination to active, animus discrimination. An additional semantic strategy of the majority, Justice Scalia added, was to re-label “adherence to traditional attitudes” as “bigotry.” “Without a foundation in American constitutional law,” the Court had accused 53 percent of Coloradans, acting in a “most democratic of procedures,” of “having fallen to pointless, hate-filled gay bashing,” he concluded. The reader might recall Justice Hugo Black’s dissent in Griswold (see previous essay) about the Court substituting its own words for the “crucial” words in the text of the Constitution.

Congress tries to defend marriage

In his Romer opinion, Justice Kennedy had said nothing about marriage. But, in specific reaction to Romer, Congress, concerned about Romer’s implications for marriage, passed the Defense of Marriage Act (DOMA) four months after the Romer decision in 1996.

DOMA allowed individual states to refuse to recognize homosexual marriages legalized in other states. It restricted marital benefits in federal programs—an exercise of the power of the purse—to traditionally married couples. At the time, there were no states—and no countries in the world—that had homosexual marriage. In section 3 of the Act, DOMA defined marriage as “the legal union between one man and one woman as husband and wife,” thus, the report of the House Judiciary Committee said, making “explicit what has been understood under federal law for over 200 years.” The Act did not prohibit states from enacting homosexual-marriage laws on their own and did not prohibit states from recognizing such laws of other states. DOMA passed the Congress with votes of 84-14 in the Senate with Democrats in favor 32-14; and 342-67 in the House with Democrats in favor 118-65. It was signed into law by President Bill Clinton.

Referring specifically to Romer, the House Judiciary Report had maintained and asserted that

it “would be incomprehensible for any court to conclude that traditional marriage laws are (as the Supreme Court concluded regarding [Romer] motivated by animus toward homosexuals. Rather, they have been the unbroken rule and tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and responsible child-rearing.”

In 2013 and 2015, of course, the Supreme Court (as will be developed in the final essay in this series) “comprehended” that result in its same-sex marriage decisions.

The “autonomy of self;” precedent of Bowers overturned

In Lawrence v. Texas (2003), the Court, in a 6-3 opinion authored by Justice Kennedy, joined by Justices Stevens, Souter, Ginsburg, and Breyer, and concurred in the judgment by Justice O’Connor, explicitly undertook to overturn the precedent of Bowers, which it had avoided doing seven years previously in Romer. The Court decided that a Texas statute criminalizing sodomy between same-sex persons was unconstitutional.

Justice Kennedy said that Eisenstadt and Roe v. Wade had extended the right of privacy beyond the marital relationship. Justice Kennedy then went on to use Casey and Romer to overturn Bowers, even though, as already pointed out herein, he had said nothing about Bowers in Romer. Directly quoting himself in Casey’s “autonomy” and “define one’s existence” passage, he said that Casey “again confirmed that our laws and tradition afford constitutional protections to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” It was a “tradition” that he was “again” confirming. He then went beyond even the expansiveness of Casey to elaborate even more on autonomy: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”  The Constitution requires “respect” for the “autonomy of the person.”

Justice Kennedy asserted that Eisenstadt had established that “certain decisions regarding sexual conduct extend beyond the marital relationship.”

Bowers had been based on “animosity” to homosexuals, lesbians, and bi-sexuals, thus elaborating on the new kind of constitutional law he had invented in Romer. Homosexuals had a “due process right to demand respect.” The “state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Justice Kennedy recognized “a homosexual lifestyle” and spoke of the “stigma” a sodomy law puts on homosexuals, saying that it “demeans the lives of homosexual persons.

To the “majority” of Americans who condemn homosexual behavior as “immoral” based on “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family,” Justice Kennedy answered that they may not “use the power of the State to enforce these views on the whole society through operation of the criminal law.” Thus did Justice Kennedy attribute anti-sodomy laws to popular bigotry rather than to the historical norms of state laws.

Justice Kennedy pointed out that five states have not followed Bowers, of course, omitting that forty-five states have followed it. He also appealed to the laws of other European countries, what he called “wider civilization.”

Bowers must be overturned. Justice Kennedy and the Court now held that Romer had indeed “eroded” the “foundations” of Bowers. The present case, Lawrence, is concerned only with “respect” for the “private lives” of homosexuals, the majority said. It “does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In dissent, Justice Scalia, accurately predicting the future, countered that the case “does not involve” the issue of homosexual marriage only if “principle and logic have nothing to do with the decisions of this Court.” Citing the principles of “stare decisis” and precedence, he defended Romer and pointed out the long passage in Casey that had been used by the Court to support the precedent of Roe.

This essay is second in this series. The first can be found here.

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Published: Aug 17, 2018
Author
Thomas Ascik
Thomas Ascik is Senior Contributor at The Imaginative Conservative. Mr. Ascik is based in North Carolina and retired as an assistant United States attorney after nearly three decades of service. His writing has appeared in a variety of publications, including Real Clear Policy, The Hill, The Library of Law and Liberty, and The Federalist.
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