Sexual liberation from legislative restraints and restrictions in this country began with a pair of Supreme Court decisions, Griswold (1965) and Eisenstadt (1972), which together held that married and unmarried adults cannot be legally denied access to contraceptives. Together, they quickly begat Roe (1973) with its well-known right to abort and a bit later engendered Carey (1977) with its lesser-known right for minors to have access to contraceptives. With this quartet of decisions the sexual revolution received considerable support from the Supreme Court, as it lent the authority of “the Constitution” to permissive or emancipatory egalitarianism. Adults or minors, married couples or unmarried individuals, it mattered not: all with a clear constitutional conscience could prevent pregnancy during sexual intercourse, and all (but minors?) could terminate a pregnancy before term. With these decisions the Court boldly entered into, and in important ways aggravated and inflammed, the culture wars.
Roe in turn, after two decades of intense controversy and travail, finally had a progeny, Casey (1993), which upheld Roe’s “essential holding.” Casey also introduced a new term for liberty into our constitutional jurisprudence. That term was “autonomy.” Privacy in general and the privacy rights to contracept and to abort in particular were upheld, but the domain of “privacy” was now populated by a newly named figure: the autonomous individual. Somehow or another, merely being declared to be a private rights-possessor was inadequate to understand the newly emancipated individual and his distinctive constitutional status or “dignity.” This individual, Justice Anthony Kennedy declared, was so “self-legislating” that he had the right to define for himself his “own concept of existence, of meaning, of the universe, and of the mystery of human life.”
After that long gestation period Casey more quickly bore fruit in Romer (1996), then later in Lawrence (2003). These two decisions had to do with the status of homosexuals and of same-sex sexual activities under law. In both instances, democratically-enacted measures in their regard were struck down. In Romer, a large democratic majority in Colorado had approved a constitutional amendment which declined to recognize homosexuals as a distinct, protected class. In Lawrence, Texas had chosen to criminalize homosexual (but not heterosexual) sodomy. In both cases Supreme Court majorities saw the prejudice of traditional stereotypes and anti-homosexual animus and they declared that under the Constitution the “liberty” and the “dignity” of the “free” or “autonomous” individual required that these views not be enacted into law. Yet again the Supreme Court was an active agent, a decisive intervener, in the forced march of sexual progressivism.
The Court claimed to do so, to be sure, in the name and by the authority of “the Constitution,” as performing its sworn duty by articulating the constitutional concept and imperatives of “liberty.” As Justice Kennedy intoned in Lawrence, quoting himself from Casey: “Our obligation is to define the liberty of all, not to mandate our own moral code.” It is remarkable, though, how frequently and predictably this view of “liberty” consorts, that is, comports, with the views of self-proclaimed “progressive voices” and “forces” in American politics and culture.
With these decisions reaching back to Griswold, then, a distinctive understanding of liberty has been implanted and rather decisively taken root in our polity; in them a distinctive construal of man and of our constitutional order has been at work, dramatically altering and shaping our common and individual lives. Its central, defining terms include “privacy” and “autonomy.”
As it happens, there is no need to take my word on this score, especially as I am a critic of this view of liberty and of this jurisprudence. One of its chief contemporary practitioners, the afore-mentioned Justice Kennedy, said as much in his Lawrence majority opinion. He explicitly located Lawrence in the series of cases and decisions I limned above; in it he retraced for all to consider the path that a distinctive form of jurisprudence has taken for some decades now, building upon, and dramatically expanding, precedent upon precedent.
I – without any claim to originality – call this form of jurisprudence, “neoprogressive liberalism.” As the “neo” indicates, this jurisprudence presupposes, but also alters and expands, an earlier progressive liberalism which came to power and began its Supreme Court reign in 1937. The New Deal Court had rejected the entrenched judicial philosophy of “natural rights” or “natural justice” (associated doctrinally with the concept of “substantive due process”) and articulated—particularly through the work of Justice Cardozo—in a new way the foundational concept of “ordered liberty.” “Ordered liberty” in Cardozo’s view, rather than drawing on a fixed standard of nature or the past, looks Janus-face to “the traditions and conscience of our people” and to emerging liberty-standards as “the domain of liberty … [is] enlarged by latter-day judgments.” The quotations come from his majority opinion in Palko v. Connecticut (1937).
A new progressive constitutional jurisprudence was thus given – or, rather, it gave itself – license to interpret and to select from the legal materials of the past, as well as to set itself up as the arbiter of the “logical imperative[s]” of the “expansion” of liberty. Similarly, the progressive Court in Carolene Products (1938) presented itself as the last refuge of protection for those who found themselves, or were deemed, marginalized and vulnerable in democratic society. The progressive Court assumed these tasks while also eschewing reliance upon several fixed standards of constitutional right, including the traditional American standard of natural rights.
Nonetheless, the practitioners of this new jurisprudence did exercise restraint in several areas including vis-à-vis the exercise of state police powers in the regulation of human sexuality and moral conduct generally. For example, in 1938 (in Gardner v. Massachusetts) the Court declined to review a Massachusetts statute outlawing the sale or furnishing of contraceptives because, as Justice Black reminded his brethren in his Griswold dissent, it “did not raise a substantial federal question.” 1965 marks the date when the dam of restraint was breeched and libertarian waters rushed into new constitutional precincts starting with what Justice William O. Douglas, who penned the majority opinion in Griswold, called “the sacred precincts of marital bedrooms.”
Again, the reader does not need to take my word on these points. Justice Black, whom we cited just above, was appointed to the Court by Franklin D. Roosevelt in 1938. He was present at the beginning of what Edwin Corwin famously called the “constitutional revolution, ltd.” of the New Deal Court. However, in 1965 he vigorously dissented from the Griswold majority. He thereby testified that he saw something new – dramatically new – afoot in this employment and expansion of the legal concept of “privacy” to these areas. His hue-and-cry can be a first, rather credible, indicator of the novelty of this privacy-based jurisprudence. We, however, will have to consider and take stock of it for ourselves. No thoughtful citizen can fail to ask himself at some point or another whether these decisions and this jurisprudence are legitimate or not, salutary or baneful.
This project requires that we look again at Griswold v. Connecticut (1965), the widely acknowledged Ur-decision of the neoprogressive privacy tradition. That it has been widely acknowledged (and widely critiqued) does not mean that it has always been deeply considered or fully appreciated.
In Griswold and its progeny cited above—from Roe to Casey to Lawrence and all the stepping stones in between—the Supreme Court struck down state laws regulating, that is, outlawing and criminalizing, certain sexual activities. It did so first in the name of privacy, then of privacy-equally applied, then in the names of privacy and autonomy. In doing so, the Court has significantly restricted the scope and exercise of state police powers. Traditionally, these powers could be, and were, exercised by legislatures for the sake of the physical or moral interests of society, as plausibly rationally determined by them. Society’s safety and health, its morals and good order, were the traditional ends of such legislation.
The Court’s decisions striking down specimens of such legislation therefore not only entailed a narrowing of the constitutionally permitted scope of such legislation, but they dramatically impacted upon federalism, the relationship between the federal and state governments, not to mention the separation of powers at the federal level. In so ruling, the Court nationalized – that is, posed and required as uniform national standards – certain libertarian and “progressive” conceptions having to do with sex, sexuality, and morals. The Court increasingly has set itself up as the nation’s moral arbiter in matters sexual or intimate.
And while it claims to do so, not in the name of this-or-that view of “morality,” but rather of “liberty,” that “liberty” itself possesses or implies a view of human morality. I would argue that private, autonomous liberty is tantamount to epistemological relativism and ethical nihilism. It is the rationally dubious and socially baneful morality of the sovereign autonomous self. It is a view of man as creator of meaning and values, and of someone who never has to give any substantive reason(s) for his choices, his activities, his relations. Socrates cannot pose his questions to this individual, nor could Aristotle – whom I take as emblematic of substantive natural reason – guide legislation concerning human character and conduct, under the constitutional scheme once, and increasingly, mandated by the Court.
Moreover, having implanted this particular view of man and liberty in constitutional law, the Court itself will find it impossible to deny this individual further, more public, claims. Any delays will only be tactical or the result of indecisiveness on the part of individual justices. Not all justices, however, will be, or are, so inclined towards such hesitations. The Massachusetts Supreme Judicial Court Goodridge (2003) decision, mandating same-sex marriage for the Commonwealth, squarely based itself upon the autonomy and equality of autonomous selves jurisprudence of Lawrence. It showed the necessary future of this form of liberty, the next progressive step this jurisprudence must take. The Kansas Supreme Court’s Limon (2005) decision, a case reviewing Kansas’s statute criminalizing homosexual statutory rape which was remanded to the state supreme court by the United States Supreme Court for reconsideration in light of Lawrence, makes the guiding rational explicit. In following Lawrence and overturning the statute, Kansas Justices held that “The Lawrence decision rejected a morality-based rationale as a legitimate State interest… . Thus, we are directed … by the United States Supreme Court’s holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest.”
This jurisprudence is, in its clear tendency, lethal to America and our common life. To my mind, it is the deathknell of proper constitutional order and even more ominously of any substantive form of reason and reasoning in our common life. In my judgment, the stakes could hardly be higher in connection with the status and future of this form of jurisprudence. From its future, however, let us now return, in the spirit of Lord Acton’s famous dictum concerning the pedigree of ideas, to its past and to its origins. Let us give attentive, even heightened, scrutiny to Griswold.
The Griswold majority opinion, penned by Justice William O. Douglas, is short; about four pages in all. To it are appended three concurrences (by Justices Goldberg, Harland, and White) and two stinging dissents, one by Justice Black, the other by Justice Potter Stewart. Stewart concludes his dissent (footnote #8) with a newspaper report and a comment: “The Connecticut House of Representatives recently passed a bill (House Bill No. 2462) repealing the birth control law. The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7.” The Supreme Court decision in Griswold short-circuited and effectively deconstitutionalized a (certain range of) democratic deliberation. In his dissent, Justice Black accused the majority of acting as a constitutionally illegitimate “supervisory agency” over legislative enactments and he raised the spectre (quoting Learned Hand) of the Court becoming rule “by a bevy of Platonic Guardians.” He went on to say that
[t]he adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control … would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.
In different ways, one more restrained, the other more flamboyantly, both draw attention to the significant, rather momentous, effects of the Court’s decision on both federalism and state police powers. More than contraceptives, and more than a state’s right to regulate them and their use, is at stake – was decided – in the instant case and decision. Justice Black has the further merit of raising the prospect that we are in the presence of “‘liberty’ as [certain of] my Brethren define ‘liberty.’” and of reminding us of the obvious, that “’[p]rivacy’ is a broad, abstract and ambiguous concept.” As the wag said of the medieval “appeal to authority” this concept of privacy has a fairly shapeless and malleable “wax nose” that can be pulled in any number of directions.
However, because of certain limitations in his own jurisprudence, Black was not in a position to fully appreciate, [nor] to accurately capture, the novel form of jurisprudence at work in this case. He (with some warrant) thought that this “privacy” jurisprudence was the resurrection of the discarded “natural rights” thinking of the pre-1937 Court. It is more correct to say, as does Hadley Arkes, that starting with Griswold, “privacy” (and then “autonomy”) occupied the place formerly occupied by the natural rights standard of the pre-1937 Court and unleashed a comparable logic in our jurisprudence. (“Comparable” in certain respects, but decidedly different in others.) Pace Justice Black, with “privacy” any notion or standard of a fixed, definable human nature was replaced by (expansive) notions and (ever-expanding) standards emanating from progressive liberal attempts to reconceptualize liberalism without recourse to fixed standards, whether natural or constitutional. The Griswold decision therefore is more truly seen as at once the dramatic extension of the view of man and society embodied in “civil libertarianism” and a significant repudiation of its immediate predecessor’s self-imposed restraints.
In particular, the neoprogressive jurisprudence of Griswold built upon the New Deal Court’s work in the areas of the First Amendment and the Bill of Rights more generally. It, however, took the salto mortale into sexual, procreative (or rather, contraceptive), and marital relations and activities. The Griswold majority, despite, as Justice Black detected, departing dramatically from several decades of dissents and decisions, nonetheless appealed to these precedents, but it did so in a way to add a new wing to, or to dig a new basement for, the edifice its predecessor had constructed to house [a] new figure of man. Given this complexity we will have to see what the two progressive liberal jurisprudences have in common, as well as disentangle how the latter departs from the former.
Now, remarkably, both jurisprudences are rather “spiritual” in their view of things, in the first place, concerning the text and meaning of the Constitution. One might say, though, that the Griswold majority went much further and implicitly set the Court up as the clerisy of a new religion, one that D. H. Lawrence would approve of: the religion of the sanctifying powers of sex. No doubt, we need to explain these last enigmatic statements. To do so, however, we simply need to consider how Douglas presented the form of jurisprudence at work in the Griswold case. It had obstacles to overcome (e.g., the Gardner precedent), but it had precedents with which it could creatively work.
Our first guides into Griswold, Justice Black as well as Justice Stewart, raised the obvious objections to the appeal to “privacy” in this case. The term “privacy” is not found in the Constitution. How can the Court base such a dramatic restriction of state police powers on an absent term and undefined concept? Moreover, Black rightly noted, it is a term that can be easily expanded or contracted, apparently at will by so-inclined judges. It leaves open apparently indefinite room for Courts and Justices to define in, or rule out, whatever particular policy and moral preferences they may favor or disfavor. Justice Stewart, for example, noted that “[t]he Court does not say how far the new constitutional right of privacy announced today extends.” In his dissent he ventured the “suppose[ition]” that even after the majority’s invocation of “privacy” the states would still be able to outlaw and criminalize certain private sexual activities. As though to reassure him, Justice Goldberg in his concurrence approvingly cited Justice Harlan’s Poe v. Ullman (1961) dissent-precedent for Griswold, in which Harlan wrote: “Adultery, homosexuality and the like are sexual intimacies which the State [legitimately] forbids … .” As one can read, this list of such permissibly prohibitable activities included homosexual sodomy. Recent Supreme Court decisions, however, (i.e. Romer and, especially, Lawrence) indicate that either Harlan’s and Goldberg’s imaginations, or their grasp of the imperatives or “manifold possibilities of liberty,” were too limited, or that Justice Stewart’s barely-contained apprehensions concerning the real breadth of privacy protected conduct were all too accurate. In fact, all three could be true.
Douglas and the majority were aware of the intellectual awkwardness inherent in appealing to an unmentioned-in-the Constitution concept of “privacy” What is it?, one might legitimately ask. A domain? A right? A set of rights? Where does it come from? What is its connection with the text and history of the Constitution? This is an especially pressing matter to address and resolve when it is used to effect such a major shift in federal-state relations, as well as in the ability of states to manage their own sexual-moral-and-marital affairs. He had ready-to-hand, however, a jurisprudence that had already broken the, as it were, unspoken ground which he could adopt and creatively wield. It was the civil libertarian jurisprudence he, his brethren, and important predecessors had developed and been employing for decades, starting with dissents by Oliver Wendall Holmes and especially Louis Brandeis and followed by the majority decisions of the New Deal Court, particularly Cardozo’s Palko v. Connecticut alluded to earlier.
The Ur-dissent in this regard, arguably, was Brandeis’s in Olmstead v. US (1928). Justice Black thought so, as did Justice Goldberg, and it is what Justice Brennan will approvingly, even lovingly, invoke in Eisenstadt. In that dissent, Justice Brandeis wrote: “The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be left alone – the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment” (my italics).
Implicit in this remarkable statement, full of “high sentence” (the phrase is Chaucer’s) and sentiment, is a distinctively progressive liberal/civil libertarian view of the nature of the individual and of the proper purpose and structure of constitutional government. It is asserted, not argued for. After invoking or alluding to the Declaration of Independence (“the pursuit of happiness”), i.e., the classic American statement of the natural rights foundation of our polity, Brandeis subtlely but dramatically recasts the foundations and reorients the purpose and hence structure of our liberal order. At the very least, one is fully within his intellectual rights to ask, is this the proper construal of the philosophy of man and government held (generally, broadly) by the founding generation? Brandeis does not cite one eminent Founder or founding/ratifying-era text to back up his assertion that “the most comprehensive right, the right most valued by civilized men” is “the right to be left alone.” This view certainly – and debatably – privileges one sphere, “the private” over all others in the liberal democratic polity. It posits a particular view of man and his nature and his proper foci and activities about which one can ask, says who?
Given this backdrop, Douglas begins his main argument in Griswold by tacitly acknowledging that the term “privacy” is not found in the text of the Constitution. This is not necessarily an insurmountable difficulty though, says Douglas, because other not-found-in-the Constitution terms have been given constitutional status or standing, “association” for example, by previous Courts. Similarly, Court precedents have already invoked “privacy.” The marital relation, he claims, is an association, a private association, of long and venerable standing: it antedates much of the American order as such, political parties, for example, and even the Bill of Rights. It is an association, he declares, that centrally involves “the private” and the “sacred,” so much so that the thought of policemen knocking down the door of the marital bedroom in search of offending contraceptive devices (or practices) is simply “repulsive.” However, one would not necessarily be advocating such an employment of police forces if one noted that this line of thoughts only pushes the matter back a step or two. With what legitimacy did the previous decisions invoke “association” and “privacy?” How did (and does) the Court generate these acceptable alternative terms and concepts not found in the text of the document? And with what warrant does Douglas, in effect, define marriage as he does? Is it the province of the Court to define marriage as an institution, sacred, civil, or otherwise?
It is at this juncture that Douglas shows himself to be cognizant of New Testament hermeneutics. Or, since we have been instructed that the devil can quote Scripture to his purposes, we more accurately have to say that Douglas invokes a distinctive form of jurisprudence, of “constru[ing]” the text of the Constitution, that we can term “spiritual security” by fusing its two components. To them, we have to add another term of description: “umbral” (or “shadowy,” in more than one sense). By their means, as we will see, he detects (or, generates) various domains (“zones of”), in fact an entire domain (“the zone of …”), of “privacy” that the state cannot unnecessarily invade, or even much regulate. In this case it includes, and envelops, “the sacred precincts of marital bedrooms.”
However, in a few years, with Eisenstadt and Roe, any allusion to traditional contents and meanings associated with marriage and its “sacred precincts” to help justify this appeal to “privacy” will be unilaterally jettisoned by the Court, by Justices Brennan and Blackmun respectively. Henceforth the subject of “privacy” will be the bare individual as such, and the “sacred” aura previously ascribed to “the marital relation” or to married couple as such will be abandoned in the subsequent evolution of “privacy” jurisprudence.
Confronting this subsequent imperious volte-face, this use, then discarding, of “sacred” marriage to shelter and give birth to emphatic “privacy” and “intimate” “privacy rights,” one is permitted to raise skeptical questions concerning the initial appeal to “the sacred precincts of marital relations.” Was it not more rhetorical than substantive? How serious was Douglas in his concluding paean to the understanding of marriage which construes it as “sacred?” One can ask whether the deep sentiments and high ideas connected with a traditional notion of the marriage bond were not abusively invoked in order to provide a novel conception of “privacy” with a patina, with the aura, of traditional legitimacy and even “sacredness.”
As we will soon see, there is good reason to suspect that such disingenuous bad faith is at work in Griswold, because Douglas will provide an alternative view of “the sacred,” one that wars with any and all traditional notions of marriage. At the very least this latter Douglasian concept of “sacred,” which is merely asserted by him but which is pregnant with great consequence, gives a very different meaning and ground to “sacred marital precincts” than do traditional understandings. And that new meaning and ground of “sacredness” in fact do not require marriage. They just require two (or more?) “intimate” individuals, period. With the next two “privacy”-grounded decisions, Eisenstadt and Roe, “privacy” will continue its work of reworking, that is, undermining, traditional notions of sexual conduct and relations in the name of “the individual”; Justices Brennan and Blackmun will continue to put an authoritative constitutional stamp on “private” or “intimate” matters construed by them as primarily, if not merely, matters of individual personal choice.
This judicial redefining – in the direction of permissive egalitarianism – begins in Griswold itself. Thus we return to Douglas and to his presentation in Griswold of the jurisprudence that yields a distinctive conception of the domain of “privacy” and which outlaws state efforts to require married couples not to contracept (a requirement which, to be plausibly rational, presupposes a distinctive notion of what the marriage union is and is for).
To start with, Douglas explains that with the (amended) Constitution there is the letter of the law, the very words of the text. For example, there are the express provisions of the Bill of Rights in general and the First Amendment in particular. Giving life to that letter, to those provisions, though, is a “spirit.” For example, in certain precedents, such as Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923), the Court, says Douglas, declared that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.”
Now Douglas knows, or senses, that there are problems with appealing to “the spirit” of a text, among which one could list the difficulties involved with the license it gives to judicial judgment which engenders interpretative cacophonies, or gives rise to judicial legislation. So, he continues his little primer on “constru[ing]” constitutional provisions, helpfully providing some guidelines for distinguishing false from true spirits. The main one is the criterion, or rather, the judicially-self-imposed task, of “securing” the rights expressly enshrined in the letter of the text. This is done by way of judicially determined “peripheral rights,” rights that the Court decides are required to secure, nay, to give their very “life and substance,” to expressly guaranteed constitutional rights. For “[w]ithout those peripheral rights, the specific rights would be less secure.”
Now, it is these “peripheral rights” that allow, or require, the extension of constitutional language and hence standards. This is very much, and self-avowedly, a jurisprudence of “In other words …” For example, Justice Douglas wrote that “In NAACP v. Alabama” (1958) the Court “noted that freedom of association was a peripheral First Amendment right” (my italics; “association,” of course, is not found in the text of the Constitution). In that decision “we protected the ‘freedom to associate and privacy in one’s associations,’.” Thus by way of a jurisprudence of “securing” express rights by deciding whether or not a claimed right is required or not to secure them, the Court has tremendously empowered itself to declare constitutional both unexpressed rights and unexpressed subjects and areas of rights.
The quotation above from the 1958 NAACP v. Alabama decision linked two of the key concepts that Douglas needs to get to his conclusion. The Constitution – in particular, the First Amendment – has been recently read to include rights of association. And “association” sometimes has “privacy” or “privacies” associated with it. It is on this “old/recent” ground that Douglas takes his stand and then takes his next step. “In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” (N.B.: “In other words”, yet again. And yet again we can say, as Justice Black noted: “One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.”)
“Penumbra” was not Douglas’s coinage; it was Justice Harlan’s in an earlier, Poe v. Ullman (1961), dissent. It is of no great matter, though, whether Douglas coined or simply adopted it. With Griswold he decisively introduced thoroughgoing “shadows” into our Constitution, that is, into constitutional jurisprudence. (“Umbra” is the Latin word for “shadow.”) “Penumbra” is an odd locution. One might think that the jurisprudence of discerning the spirit of the various letters and provisions of the constitutional text, and in particular of giving real “life and substance” to the literally stated and thus expressly guaranteed rights and liberties and powers of individuals, would shed light on things, that it would illumine unexpressed dimensions and contours of our constitutional order. Instead Douglas says that this jurisprudence detects and follows “penumbras,” that is, shadows cast by the letters of the text. I can barely resist seeing a great irony in that odd choice of terms by Douglas. For we all know that shadows obscure rather than clarify matters. But we must try to follow Douglas’s thinking and argument to its end. And he himself believes that he has now (almost) found his desired harbor: “privacy.” Once there, he will invoke – with, as we said earlier, dubious “high sentence” – that special, even “sacred precinct” found therein: the marital bedroom and, more broadly, marriage with its ancient “right of privacy.” Douglas, though, has a few obstacles and “controversies” to finesse before he can so conclude.
In general, “[t]he foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman … (dissenting opinion).” This famous (and much mocked) statement is but a generalization from previous “spiritual security” jurisprudence. But these shadows must do a specific work in this case. And they do: “Various guarantees create zones of privacy.” As we saw earlier, the 1958 NAACP v. Alabama decision had expressly linked association and privacy. So, too, had other cases, especially in the domain(s) of criminal procedure.
The Fourth and Fifth Amendments were described in Boyd v. United States (1886) … as protection against all government invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred in Mapp v. Ohio (1961) …to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”
In short, previous Court decisions, says Douglas, have exposed “the zone of privacy created by several fundamental constitutional guarantees.” He indicates the First, Third, Fourth, Fifth, and Ninth Amendments as texts and provisions whose “emanations” lead the discerning judicial eye to this great domain.
Douglas knows that this jurisprudence and the particular applications of it in previous cases have not been met with universal acclaim and agreement. In fact “[w]e have had many controversies over these penumbral rights of ‘privacy and repose.’” After this acknowledgement, he lists six previous Supreme Court cases and decisions. The last listed is the chronologically earliest of the six (which range from 1942 to 1962). It is the 1942 Skinner v. Oklahoma decision striking down an Oklahoma statute requiring sterilization for certain three-time criminal offenders. The Court struck it down in the name of a “basic right” to procreate and the unjustifiability of the statute’s classification scheme, which did not rationally relate to the objective of the legislation. We need to look at this alleged precedent because it shows us not only the creative use that Douglas makes of precedent, but also the legislative/judicial conceptual framework of pre-Griswold thinking on marriage and its incident rights.
As it happens, we do not need to do this on our own. In fact we have a sure guide, Justice Robert J. Cordy of the Massachusetts Supreme Judicial Court. In his magisterial dissent in Goodridge, Justice Cordy rightly notes that Skinner was effected under a distinctive (pre-Griswold) conception of marriage and human sexuality and the rights flowing from that conception. Marriage, this view held, was the civil institution established by duly empowered-and-acting legislative organs for the regulation and elevation of heterosexual sexual intercourse. It was deemed to be the sole “site” of legitimate sexual activity. It was deemed such because democratic society had decided that monogamous and procreative sexual activity in the context of marriage and the two-parent family was to be normative for society and positively sanctioned by the state. This was done because of the vital importance of heterosexuals’ potentially procreative sexual activities’ regular and predictable issue, children. The institution and incidents of marriage, therefore, including the “right to procreate,” were part and parcel of a coherent and rationally plausible conception of marriage as the societally agreed upon institutionalization and normalization of potentially and actually procreative sex. This conception, as Cordy notes, was not derived from religious sources, it did not require any religious sanction, it was oriented toward secular civil purposes, it was based upon obvious distinctions (e.g., sexual activity that in principle is fecund versus other sorts), and this conception of marriage and its rights, privileges, and duties and obligations was structured according to rationally understandable and plausible purposes. In short, marriage was the civil institution which gave heterosexual couples a public license for procreative sex. Griswold severs that core purpose from the institution, thus denaturing it, or at least dramatically recasting it.
Once again, one need not take my word for this last conclusion, adherents to, and proponents of, Griswold make this point. The Goodridge majority (led by Justice Margaret Marshall) while opening marriage to same-sex couples approvingly cited Griswold’s concluding paean to and description of marriage. They thus, perhaps inadvertently, allow one to notice the deep character of, and dramatic shift involved in, Douglas’s presentation of marriage. Here is his concluding paean:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decision.
“Marriage is a coming together for better or for worse”: Douglas expressly cites, or at least alludes to, the traditional formula involved in the wedding ceremony, with its accompanying full complement of meanings – including procreation – attached to the institution. It is, he sonorously intones, “a way of life,” “a harmony in living,” “a bilateral loyalty.” One’s heart cannot but swell at these phrases. Douglas further plays upon those heart strings: It is “hopefully enduring.” But, alas, we know that this is not always the case. Sometimes marriages fall apart and it is the state’s sad duty to dictate terms of separation and to adjudicate between separating partners.
But all this is rather more fig-leaf and feint than anything else on Douglas’s part. One suspects that one is being played, that is, abused and deceived, by the liberal-minded Justice. Why? Read again and reconsider. Marriage has a purpose, Douglas solemnly affirms, a noble purpose; hence, one might think, flows its deep and commonly shared “way of life,” “bilateral loyalty,” and (hopefully) “harmony in living.” But what is that noble purpose? Douglas coyly, or disingenuously, does not say what it is. And the Goodridge majority opinion rightly seizes upon that omission to declare that same-sex couples fit its description. And they do.
The traditional, the legislatively declared and enacted and promoted, aim of civil marriage, as Skinner presumed and Justice Cordy so helpfully reminds us, is primarily for the procreation and rearing of children who are “the next generation” of society. Its primary aim is to add and properly raise new members to society, a society which has to make reasonable and authoritative, that is, legal, provision for its own order and its own continuation. Douglas glaringly omits this obvious, central, determinative “noble” purpose. Moreover, he tacitly but definitely denies it. How? The effect of his decision is to deny all states the right to define marriage as a non-contraceptive institution (for reasons plausible and debateable). Now, to deny this possibility of defining marriage is to define, that is, recast, marriage as intrinsically a contraceptive and non-procreative sexual relationship and institution. Henceforth constitutional status is given to a particular view of marriage. That view entails that married couples, as a matter of constitutional, that is, sovereign legal authority, can contracept during the entirety of their married life. Marriage henceforth constitutionally need not be open to, or about, procreative sex and children at all. In these few words we have the clear beginnings of the progressive liberal view of marriage as whatever two individuals wish it to be, including sex without openness to children. It is a license to have sex, period.
But Douglas, remarkably, goes even further in redefining basic terms. Earlier I said that the majority set itself up as a new clerisy, as the high priests of a new religion. That may have sounded rhetorically over-the-top, but it was intended as a sober reading of Douglas’s very words and their necessary implications. These are the words: “intimate to the degree of being sacred.” Douglas, it turns out, employs the term “sacred” twice in this short opinion. Initially he employed it while referring to “the sacred precincts of the marital bedroom.” It is a use of the term “sacred” that could be taken to derive from, or have resonances with, religion, that is, Biblical religions, both Jewish and Christian faiths, and their understandings of the divinely instituted institution: “Male and female He created them.” “For this sake will a man leave his parents and cleave to his wife.” In this view human gender differentiation and human sexual powers are God-given for the sake of imaging the fecund creativity and faithful love of the Creator and divine Covenanter. Marriage in this, generally shared by Jews and Christians, Biblical view is of divine origin, ordinance, and orientation. It is “for better and for worse, until death do the partners part.”
The second use of “sacred,” however, cuts in a completely opposite direction. “Marriage is … intimate to the degree of being sacred,” we are told by Douglas on his own, not alluding to Scripture. Marriage is an institution, an intimate one, to be sure. But the order of causation has been shifted. He does not say, “marriage is sacred,” he says it is “intimate to the degree of being sacred.” Intimacy, not marriage itself or as such, is the causative factor or force. By “intimate” Douglas means or importantly has in mind “sexually intimate” or “involving sexual relations.” But, to repeat: intimacy (here essentially including sexual intimacy) is now the ground and source of “being sacred.” Intimacy makes marriage sacred, not vice versa. Because two individuals are “intimate,” that is, “know one another” or are involved in sexual concourse, the institution, marriage, assumes a certain status. From the Biblical point of view, this is to put the cart before the horse. To speak bluntly: inherent in Douglas’s words is the view that it is “intimacy,” that is, sexual activity, that introduces sacredness into the world. And the fecundity or sterility of the intercourse does not matter or bear upon the nature or degree of that holiness: “intimacy” does.
Douglas is not the first to have thoughts of this sort. In truth, this is but a vulgar version of the apotheosis of sexual eros that philosophers and poets trying to build a habitable world upon the pediment of modern individualism created or extolled. Douglas himself presents a rather prosaic, submerged, version of the plight of the modern individual caught in a disenchanted world, trying desperately to get out of his (or her) bare self, and for whom sexual ecstasy is temporary relief from the truth of individuality—a grand illusion of transcendence. I say “grand illusion” because Douglas’s sexually-generated sacredness is not per se open to – in principle it is closed to – the natural and ordinary source of individual transcendence: procreation and parenting. To repeat: even contraceptive sexual intimacy, according to Douglas, engenders sacredness, it is in and of itself hallowed.
That this, or something very much like it, is implicit in Douglas’s conception is further indicated by his description and condemnation of the Connecticut statute, which immediately precedes the paean. “The present case … concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.” Note that Douglas is superlatively exercised by the “impact” of the anti-contraceptive legislation: if allowed to stand it will have “a maximum destructive impact upon that relationship” (my italics). One has to ask, from what point of view would denying contraceptives to a sexually active married couple be tantamount to destroying the relationship? It is only a half-step answer to say, from the point of view of marriage and married sexual activity construed as matters, principally, of personal choice. To truly see the perspective one has to go further and consider the further possibility of a totally contraceptive, sexually active, marriage union, which is what Douglas’s decision constitutionally allows, if not mandates. Is that point of view the same as the traditional Skinner view? That is, from the point of view of marriage as the civil institution designed to channel and shape heterosexual sexual appetite and activity for the purpose of legitimate issue and healthy family life, would the denial of contraceptives be the most destructive, the greatest threat, to it? With respect to this query I will allow the reader to reflect and answer for himself. Tantae molis erat.
Copyright 2004-2005 :: The New Pantagruel The New Pantagruel.