Some call their daily walk a "constitutional" ... when I have a long walk ahead of me, it sometimes gives me a chance to think constitutionally. One way, I was considering how this country is not a democracy. As the Pledge of Allegiance says, we are a republic. But, one step further -- the representation is imperfect as well. This is not just a matter of malapportionment, including constitutionally mandated (the Senate -- giving a plus to thinly populated Republican states in a way the Democrats do not benefit from in return ... the only real plus is D.C., and that is just electorally).
Only around a half of the
voting public votes, and that for presidential elections. Think off year and/or local elections, or even the primaries that determine things often enough. And, don't get me started on school board elections and so forth. In some fashion, a minority clearly governs. This is partly our fault, since so many do not vote, but it is bound to happen ... always did in some sense (helped in the past by stringent suffrage requirements; in the present by special interests and so forth). This is one more reason why the criticism of courts as "anti-democratic" does not quite work. Another reason would be that legislatures often work large scale, often making rough compromises at the last minute (often in conference days before the final vote), while courts look at things more carefully. Meat cleaver/scapel.
This can be seen as a sort of legislature due process safeguard via the courts. Also, our constitutional republic, of course, has various rights that a majority cannot infringe except by amendment. Some can be viewed as basic principles, including the right to privacy. A right that sadly was not dealt with carefully in too many opinions -- they all seem to be a summarily effort based on a few core decisions, which also did not carefully spell out the privacy reasoning. For instance,
Loving (interracial marriage) and
Stanley v. Georgia (obscenity in the home) both have privacy components, components underlined over time, but originally they were covered rather briefly.
Griswold is a core offender -- the whole thing is about six pages with a lot of the weight left to a concurring opinion (Goldberg respecting the Ninth Amendment) and later analysis left to a dissenting opinion in the case (Harlan in
Poe v. Ullman) that came before it!
Roe spends rather little time discussing the privacy core of the ruling. The
Skinner case baldly spoke of procreation as a fundamental right. And, so it goes. Overall principles were reaffirmed over time, but it often is left to concurring/dissenting opinions to define things. This is why
Bowers v. Hardwick is so important -- Blackmun highlights core privacy themes. Somewhat strangely, it was Stevens' dissent that was honored in
Lawrence v. Texas.
* And, on closer scrutiny, it is a bit lacking.
First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.
And, the example was interracial marriage. But, this does not really help -- the
Loving ruling underlines that morality alone can not be a trump,
if there is constitutional interest that overrides. Racism surely is one. A broad, but fair, reading (Blackmun does the heavy listing in this respect) of various opinions suggests sexual freedom is as well. But, this does not mean morality is not a legitimate state interest. Other factors might make morality based arguments problematic -- for instance, when morality is too closely entwined with religion, or the "morality" in question is illegitimate.
I tend to find this to be the case all the time. But, I still need those two reasons. And, even then, a few things require me to stretch a bit, including harm to animals. In that case, there is rarely a compelling contrasting interest -- many would consider the basic principle at issue moral. Ultimately, Stevens dissented because Georgia only wanted to defend half of the law (partly since the other half, respecting heterosexuals, seemed comparable to decisions protecting heterosexual sexuality) and do so merely symbolically at that:
The record of nonenforcement, in this case and in the last several decades, belies the Attorney General's representations about the importance of the State's selective application of its generally applicable law
As in
Lawrence, the couple only were caught in the act because of chance, though (a telling point, addressed in passing by Stevens) discriminatory treatment (by a police officer in the first case, by a private party in the second) helped things along (Stevens notes a rarely used statute leads to arbitrary selective enforcement, but only in a footnote -- Blackmun and
Lawrence addresses the core stigma problem more directly). Anyway, in a footnote, Stevens raises the suggestion the law ultimately is symbolic. And, really, this is the nature of such laws. But, he notes:
Since the Georgia Attorney General does not even defend the statute as written, however, see n. 10, supra, the State cannot possibly rest on the notion that the statute may be defended for its symbolic message.
As written, again, the old law targets all types of sodomy. But, the state felt heterosexual sodomy (or sodomy among heterosexuals) was secured by a constitutional right of privacy -- one recognized after it was written. Some sodomy laws came late in the game, like the one in Texas, and selectively targeted homosexuals.
These laws cannot be targeted in this fashion. Furthermore, Georgia was sort of making the best out of a bad situation -- the law's original purposes were limited by forces outside of its control. They might save as much of the statute as possible, right?
After all, arguably, the rulings did emphasis family life and so forth. One involving unmarried couples using contraceptives did not and a few other rulings spoke of individuals. But, again, there was a legitimate argument made that they could be interpreted narrowly. Blackmun suggests why they should not -- Stevens at times assumes there is only one way to do things, so defending his way is less necessary. If you accept his argument, things are a bit easier.
Ultimately, as Powell's own law clerk (gay -- but the justice did not know it) thought at the time, it might have been best to target criminal statutes. Hard as it is to believe, a few people were in jail just for sodomy -- though some were involved in public activity (homosexuality taboo, so this often was the only way to express one's sexuality). He only briefly concurred, noting Hardwick was not prosecuted. But, he was charged, and liable to be charged again. The fear is there, probably liable to be selectively enforced. The risk was large enough, the state's failure to prosecute underlining taking this weapon out of its hands as no big deal.
The ruling would have been thusly: a plurality strictly saying that homosexual sexual activity is not a fundamental right, even as part of a great privacy right. The deciding vote saying he agrees, but taking way the possibility of any serious criminal sanction (Georgia having a ridiculously high possible sentence). Four saying it is part of privacy, while three of the four underlining how the symbolic interest surely does not justify a criminal sanction.
And, the next step -- recognizing homosexuals deserved equal protection in the civil arena -- would develop over the years, as it already was recognized in the speech area (years before in the beefcake magazine field, of all places, and also in less racy fare). But, Stevens -- though as always interesting and raising good points -- was a bit slipshod in his analysis. One might also note that Blackmun has a great footnote/aside on how the activity here was a core expression of the couple's very identity, so it could not be criminally targeted for that reason alone.
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* Not too strange. His dissent emphasized the equal protection aspects of the problem -- the law covered all sorts of sodomy, but the state here only targeted homosexuals. And, in
Lawrence, O'Connor concurred separately on equal protection grounds, and Kennedy has been known to been libertarian in certain areas, including free speech and equality. The other sentiment in Stevens' dissent was the inability of morality to trump ... this too was a theme in
Lawrence.
