Beyond the "Horribles"

The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.

I will now broadly cover what the "horribles" of the two recent posts ultimately concern. Robert v. United States Jaycees determined rules to require women to be allowed to take part in meetings of the named business organization was not a violation of the freedom of association. This provided a chance for extended discussion of both intimate and advocacy associations, the former not as directly about carrying out religious [e.g., marriage as a sacrament or raising children in a certain faith] and other purposes of the First Amendment as the latter.  Nonetheless, both are honored and protected in this country.

Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State.

This shows how intimate association (as with "privacy," the term "intimate" should not be given a limited meaning) furthers First Amendment values. Nonetheless, it also is honored as a wider matter of liberty particularly when involving marriage, family and child-rearing matters. Certain matters are matters of personal choice, including forming relationships with others. Thus, two justices in one case noted that the "opportunity to make friends and enjoy the company of other people" was a constitutional liberty. The zone of privacy involving various groups recognized above is the sort also early on flagged by Justice Douglas.  Romantic and sexual relationships factor in here, even ones (like in Lawrence v. Texas) that are fleeting.

The "horribles" suggest that regulating such associations often take into consideration their ends. Thus, e.g., informed consent laws that are correctly crafted are acceptable and actually ideal in a range of areas, including reproductive health matters.  Such laws advance the interests of the associations as compared to requiring doctors to provide ideological cant such as "life begins at conception."  This also shows how something can be problematic because it clashes with some other principle.  Same sex marriage is fit into marriage's ends; not treating it equally is wrong.*  Free speech and other interests arise too. For instance, repeatedly vague rules ("unnatural") are arbitrarily applied.  This is even if the ultimate rule (even clarity doesn't warrant interfering with sexual freedom on private morality grounds) itself is also a problem.

A basic example here is obscenity, which often was a battle of clarity, only two justices at the start willing to simply reject the line itself.  I flagged this already -- so, e.g., Justice Douglas in one case simply asked, why shouldn't things like fetish magazines be protected speech? The ideas might seem distasteful and trivial, but not only is that really the case [one can find deep analysis on why], even that sort of speech is protected.  Some lame teen comedy from the 1980s is protected speech as much as Breakfast Club.  Ditto something like sex toys, which various lower courts protected (not all of them), which might seem a bit trivial (or embarrassing) for the Supreme Court to take up, but yes, a basic freedom is the freedom to use a dildo.

All of this is what is involved when we examine lines and outer limits. Use of "horribles" are easy ways to suggests borders of right/wrong.  We all do this in some fashion and any discussion is likely to have such familiar extreme hypos that drive people to say "I don't mean that!" or "come on!"  So, being that guy, even when the two horribles to me were dubiously applied, I realize there is a wider discussion to be had.  So, yes, control of one's health including reproductive choice will at some point lead to questions of euthanasia and medicinal marijuana.  And, why stop there? One movie had a suffering patient get a strong opiate, medicinal heroin.  Thus, the last two "horribles" do deserve some discussion.

Ultimately, freedom involves "certain  personal  choices central  to  individual  dignity  and  autonomy,  including  intimate  choices  that  define  personal  identity  and  beliefs."  This includes relationship choices of a wide range, bad choices as well as good.  In some fashion, "horribles" will be factored in there.  We should be able to handle that but as with all horror, it is at times messy.

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* I find originalism tiresome so do not think it "sad" that a workable approach results in today applying basic principles in way their originators would find rather surprising.  The level of restraint turns out to be more limited than we are led to believe, the overall general principles involved so open-ended in practice that it is not really worth separating it into a new interpretative realm.  That is, as a book by that author flags, unless it is a matter of faith.  Flag as well his favorite singer, Billy Joel.

Equality includes using overall principles and applying them to today's realities. This was done in a fashion in 1970s case involving the right of a grandmother to have certain family members reside with her.  The function of family, not "standardizing" was honored.  This would eventually be respected when same sex families were seen as normal and even then single parents, blended families and so forth showed the breadth of the principle.