Law

consensual homosexuality, abortion,rnand sterilization, euthanasia and suicide.”rnStill, he voted to veto it.rnIn 1963, in Ferguson v. Skrupka, thernpendulum seemed to swing decisivelyrnaway from Harlan’s position. Writing forrna majority which included all justices exceptrnHarlan, Justice Black again affirmedrnthat “due process” does not justify courtsrnin substituting “their social and economicrnbeliefs for the judgment of legislativernbodies, who are elected to pass laws.”rnHowever, two years later, the Connecticutrnstatute was back before therncourt in Griswold v. Connecticut. Whilernthe Griswold majority was unwilling torninvalidate the statute on the basis of Harlan’srnview that due process “stands… onrnits own bottom,” it did conjure up alternativerngrounds, supported by Chief JusticernEarl Warren and Justice WilliamrnBrennan. The statute is void, said thernGriswold majority, because it is in conflictrnwith a claim of privacy which “pressesrnfor recognition here . . . ” That’s right,rn”presses.”rnClaiming to protect society’s deeprootedrn”right of privacy in marriage,” thernGriswold majority ignored the contractiialrnnature of marriage and purported tornrely upon “penumbras formed by emanations”rnfrom other express rights foimdrnin the Constitution. Twenty-seven yearsrnlater, the Court would effectively acknowledgernthat, in Griswold, it reducedrneonstitiitional liberty to therapeutic freedomrnor “license,” which repudiates commitmentrnand discounts the Constitution’srnhistoric concern for family andrncommunity well-being. Griswold, saidrnfive Republican-appointed justices inrnthe 1992 Gasey case, established thernwholly selfish “right to define one’s ownrnconcept of existence, of meaning, of thernuniverse, and of the mystery of humanrnlife.” Robert Bork calls this the “mystery”rnphrase.rnBut there’s no mystery, as MortonrnKondracke has noted, about its effect;rnSexual liberation has gone way toornfar .. . all kinds of people are sufferingrnas a result. .. . [Ijnfluentialrngrown-ups ought to encourage oldfashionedrnvirtues—like self-disciplinernand the postponement ofrngratification — instead of encouragingrnyoung people, as much of thernmedia certainly do, to [blank] theirrnbrains out.rnIf the concern in Griswold actuallyrnhad been to protect “the right of privacyrnin marriage,” all that was required was tornhold that the marriage relationship isrnprotected by the Contract Clause. So interpreted,rnthe marital relationship wouldrnhave received its historical protectionrnfrom a Court relying on the written Constitution,rnnot “making it up” as it wentrnalong; its holding would not have beenrnso broad as to encourage promiscuity,rnand the future interests of society wouldrnhave been served by a decision that upheldrnthe advantages of marriage. ThernContract Clause offered —and still offersrn— a way of protecting “privacy inrnmarriage,” without destroying the obligationrnof commihnent.rnUnfortunately, Griswold released “thernbrakes” on the counterculture’s promiscuous,rndiscipline-averse worldview ofrn”immediate gratification.” The fundamentalrncharacter of our governance wasrnchanged by judicial fiat. The mid-rn1960’s, said former Speaker Newt Gingrichrnin To Renew America, marked thernbeginning of a “collapse in our ability tornteach ethical behavior to our own people.”rnEasing the nation into the full implicationsrnof the therapeutic meaningrnwhich Griswold ascribed to constitutionalrnliberty required a degree of deception.rnThe Griswold majority itself gave false assurancesrnthat it was drawing the line atrnpromiscuity.rnWe deal with a right of privacy olderrnthan the bill of rights . . . : Marriage,rna coming together for betterrnor for worse, hopefully enduring,rnand intimate to a degree of beingrnsacred. It is an association that promotesrna way of life . . . a harmonyrnin living . . . a bilateral loyaltv’.rnThe concurring justices gave similarlyrnfalse assurances. “The Court’s holdingrntoday . . . in no way interferes with arnstate’s proper regulation of sexualrnpromiscuity or misconduct.” Statutesrnproscribing “all forms of promiscuous orrnillicit sexual relationships, be they premaritalrnor extramarital” are “a permissiblernand legitimate legislative goal.”rnBut soon, Griswold’s purported specialrnexception for “a right of privacy olderrnthan the bill of rights” and the antipromiscuityrnstatements of the concurringrnjustices would amount to nothing.rnIn King V. Smith (1968), the Courtrnheld that AFDC’s “man-in-the-house”rnrule was valid for married couples, butrnnot for unmarried couples. “Alabama’srn. . . interests in discouraging immoralityrnand illegitimacy would have been quiternrelevant at one time in the history of thernAFDC program,” wrote Chief JusticernEarl Warren. But no more. From thenrnon, the Court held, benefits could bernstopped only if the “legal” father remainedrnin the home.rnTwo years later, in Goldberg v. Kelly,rnthe privilege of public assistance wasrnconverted into a property right whichrncould not be terminated without a trial.rnTo justice Black, this holding was utterrnnonsense:rn[AJlthough some recipients mightrnbe on the lists for payment whollyrnbecause of deliberate fraud onrntheir part, the Court holds that therngovernment… must continue,rnuntil after an evidentiary hearing,rnto pay money that it does not owe,rnnever has owed, and never couldrnowe . . . I know of no situation inrnour legal system in which the personrnalleged to owe money . . . isrnrequired to continue making paymentsrnto a judgment-proof claimantrnwithout.. . bond to insure thatrnthese payments can be recovered ifrnhe wins his legal argument.rnIn Eisenstadt v. Baird (1972), JusticernBrennan put the Court squarely on thernside of the counterculture: “Whateverrnthe rights of the individual to access torncontraceptives may be, the rights mustrnbe the same,” said the Court in obviousrncontradiction of its prior position, “forrnthe unmarried and the married alike.”rnThis already libertine reading of thernConstitution would be extended, inrnCarey v. Population Services (1977), torncover sex between children. Carey is stillrnthe law of the land. Graduates of somernof America’s most famous law schools,rnpeople reputed to be our “best andrnbrightest,” furrowed their brows, listenedrnto learned arguments, pondered the issuesrnfor months, and then declared thatrnstate legislatures have no power to discouragernsex by unmarried minors. Atrnleast two justices appeared to grasp thatrnthe Carey majority’s liberal impulse hadrnagain strayed into the fringes of anarchicalrnmadness. As Justice Lewis Powellrnsaid, ” . . . the extraordinary protectionrnthe Court would give to all personal decisionsrnin matters of sex is neither requiredrnby the Constitution nor supportedrnby our prior decisions.” Justicern46/CHRONICLESrnrnrn