The Sodomy Cases by David A. J. Richards is the "Landmark Cases" volume for Bowers and Lawrence, providing good background, if you could get pass the trudge of the introductory chapter. It provides some general principles (the author working on them at least since the 1970s) in helpfully summary form. A basic one is that "sectarian" legislation is constitutionally problematic. "Sectarian" in this context means "internal to a moral tradition not based on reasons available and accessible to all." A mid-1980s law review article expanded:
Richards is more comfortable and would apply the principles in a more evenhanded fashion. Judicial review is a positive in that it is "grounded in arguments of principle" that is less possible in various respects than political decision-making tied to elections and partisanship. The latter spoken of at times in Prof. Dworkin's writings.** A reasonable and consistent approach to the "contemporary understanding" approach to judicial review, one that still is loyal to the basic principles of the Framers (and often honoring open-ended provisions found in the text such as "privileges and immunities" or "due process") would honor a right to "intimate life."
[Thus, Prof. Jack Balkin and others argue for a type of liberal originalism, apparently to not just approach things via a common law approach ("living"), but -- see that link -- navel gaze on what exactly what the original meaning, now more open-ended, means exactly. That is, the "originalism" part. I jest. Sort of. ]
As Richards notes in a later book challenging "fundamentalism" in law:
There is a clear overlap there with freedom of expression and conscience, The Sodomy Cases arguing that the Supreme Court had to first strongly secure those rights, including opposing sectarian state religious establishments, to be ready to fully secure a right to privacy. Nonetheless, intimate life is firmly a basic "inalienable right," one honored in the time of the American Revolution, if selectively denied to certain groups, particularly to slaves. Therefore, it would be wrong to hold that it has "little or no textual support in the constitutional language" (particularly the Ninth Amendment) or history. Unless one was selective about it. There is a key equal protection issue there and the author ties gay rights to racial and gender equality. We see this today in bullying.
On some basic level, these principles have broad acceptance, but they continue to be challenged in various respects. Partially, it is a matter of selective respect, like Republicans who suddenly oppose free market friendly insurance policies when Obama signs it into law. Sometimes, it is based on "sectarian" sentiments that are colored by racial, religious or other biases that are suspect. It also might be a somewhat conservative approach that wishes to go only so far, but the lines drawn can be somewhat curious and on closer review, a bit too arbitrarily drawn.
Consider Prof. Ely, who supported abortion rights legislatively, but was very wary of some "right to privacy" judicially. But, his political equality approach to judicial review fully/equally applied very well might cover this ground, and even he thought there was a principled approach to strike down the unequally applied law in Griswold and opposed class based abortion laws like Maher v. Roe. And, eventually, even Roe as a matter of precedent. One thing Ely cited in a famous law review article criticizing Roe was that fetal rights can be seen as a "minority rights" issue, but embryos and fetuses are not constitutional persons. It is quite true, he too is a vegetarian, we protect animals, but requiring women to be vessels for their growth akin to a joey in a kangaroo is again not something done. The ruling addressed that, including with a long look at history.
And, other challenges are made as well. We will continue to be "sectarian" on some level there. The best thing one can hope for is some protected sphere, equally and fairly applied as best as we can, continuously tweaking the exact nature of the whole affair.
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* This explains the overall nature of this much disliked opinion and underlines the importance of authorship.
Justices Burger and Rehnquist were never gung ho about the basic principle of a "right to privacy" while Justice Powell was, but basically had a block as to gays (ironically, he had many gay clerks, liking a certain "type,"one eventually arguing Lawrence v. Texas, though he first went through a heterosexual phase). He later admitted error on the point. O'Connor's vote is a bit more curious though -- like society -- she too "grew" on the matter as shown by her later votes and actions.
Lower courts, however, cannot psychoanalyze, and needed to follow such a precedent, though it was a poor fit as Lawrence eventually held.
** The Constitution specifically obligates political actors to swear or affirm loyalty to its dictates, constitutional review ultimately more likely to occur in practical ways outside of the courts. Like it or not, however, people tend to entrust the courts with a special duty here, its very make-up honoring the assumption they will look at things differently.
general goods are those goods whose nature and relative value is free of sectarian disagreements so that all persons, irrespective of religious or philosophical convictions, could reasonably agree that the criminal law should protect those goods from harm. But because there are sectarian disagreements about fetal life, it is not reasonably understood as a "good" in this sense, that is, as a good whose protection is an adequate justification for the application of criminal law to choices protecting reproductive liberty.This suggests the "secular state interests" Justice Stevens referenced regarding birth control, abortion and euthanasia contexts or the "ethical and moral principles" of Lawrence v. Texas and the matters of "conscience" left to personal choice in Planned Parenthood v. Casey. Originally, the forbidden zone would be a more homogenous matter of religious dispute, now it is a more open-ended affair, though some might still see it in First Amendment terms (see, e.g. U.S. v. Seeger). Just how broad "sectarian" should be defined is open to debate -- I myself do not quite know how broadly Lawrence did so beyond cases often deemed "privacy rights" in nature and doubt (contra Scalia) it wanted to end all "morals" legislation as such. There seems to be some "public morality" that is accepted and Kennedy himself sees fetal life as such, one that can limit reproductive liberty to some sense, particularly after viability.
So argued Justice Burger in his concurring opinion of Bowers v. Hardwick and such is the sentiment of Justice White's majority opinion. Some still have this point of view in this area, arguing that such "moral" questions be left to the legislature, Madison's factions (Federalist No. 10) dealt with there. White is an interesting character there in that he -- unlike Scalia or Thomas -- supported Griswold. His Bowers opinion, however, was foreshadowed some years before in a dissent respecting a zoning law blocking a grandmother's living arraignments with her grandsons. It supported a substantive due process, evolving understanding of "liberty," but only so far. Not comfortable with the whole thing.*This is essentially not a question of personal "preferences," but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.
Richards is more comfortable and would apply the principles in a more evenhanded fashion. Judicial review is a positive in that it is "grounded in arguments of principle" that is less possible in various respects than political decision-making tied to elections and partisanship. The latter spoken of at times in Prof. Dworkin's writings.** A reasonable and consistent approach to the "contemporary understanding" approach to judicial review, one that still is loyal to the basic principles of the Framers (and often honoring open-ended provisions found in the text such as "privileges and immunities" or "due process") would honor a right to "intimate life."
[Thus, Prof. Jack Balkin and others argue for a type of liberal originalism, apparently to not just approach things via a common law approach ("living"), but -- see that link -- navel gaze on what exactly what the original meaning, now more open-ended, means exactly. That is, the "originalism" part. I jest. Sort of. ]
As Richards notes in a later book challenging "fundamentalism" in law:
Like the right to conscience, [the right to intimate life] protects intimately personal resources (thoughts and beliefs, intellect, emotions, self-image, and self-identity) and the way of life that expresses and sustains them in facing and meeting rationally and reasonably the challenge of a life worth living -- one touched by enduring personal and ethical value.
There is a clear overlap there with freedom of expression and conscience, The Sodomy Cases arguing that the Supreme Court had to first strongly secure those rights, including opposing sectarian state religious establishments, to be ready to fully secure a right to privacy. Nonetheless, intimate life is firmly a basic "inalienable right," one honored in the time of the American Revolution, if selectively denied to certain groups, particularly to slaves. Therefore, it would be wrong to hold that it has "little or no textual support in the constitutional language" (particularly the Ninth Amendment) or history. Unless one was selective about it. There is a key equal protection issue there and the author ties gay rights to racial and gender equality. We see this today in bullying.
On some basic level, these principles have broad acceptance, but they continue to be challenged in various respects. Partially, it is a matter of selective respect, like Republicans who suddenly oppose free market friendly insurance policies when Obama signs it into law. Sometimes, it is based on "sectarian" sentiments that are colored by racial, religious or other biases that are suspect. It also might be a somewhat conservative approach that wishes to go only so far, but the lines drawn can be somewhat curious and on closer review, a bit too arbitrarily drawn.
Consider Prof. Ely, who supported abortion rights legislatively, but was very wary of some "right to privacy" judicially. But, his political equality approach to judicial review fully/equally applied very well might cover this ground, and even he thought there was a principled approach to strike down the unequally applied law in Griswold and opposed class based abortion laws like Maher v. Roe. And, eventually, even Roe as a matter of precedent. One thing Ely cited in a famous law review article criticizing Roe was that fetal rights can be seen as a "minority rights" issue, but embryos and fetuses are not constitutional persons. It is quite true, he too is a vegetarian, we protect animals, but requiring women to be vessels for their growth akin to a joey in a kangaroo is again not something done. The ruling addressed that, including with a long look at history.
And, other challenges are made as well. We will continue to be "sectarian" on some level there. The best thing one can hope for is some protected sphere, equally and fairly applied as best as we can, continuously tweaking the exact nature of the whole affair.
---
* This explains the overall nature of this much disliked opinion and underlines the importance of authorship.
Justices Burger and Rehnquist were never gung ho about the basic principle of a "right to privacy" while Justice Powell was, but basically had a block as to gays (ironically, he had many gay clerks, liking a certain "type,"one eventually arguing Lawrence v. Texas, though he first went through a heterosexual phase). He later admitted error on the point. O'Connor's vote is a bit more curious though -- like society -- she too "grew" on the matter as shown by her later votes and actions.
Lower courts, however, cannot psychoanalyze, and needed to follow such a precedent, though it was a poor fit as Lawrence eventually held.
** The Constitution specifically obligates political actors to swear or affirm loyalty to its dictates, constitutional review ultimately more likely to occur in practical ways outside of the courts. Like it or not, however, people tend to entrust the courts with a special duty here, its very make-up honoring the assumption they will look at things differently.
