Justice Blackmun went on to explain that the Court construed the right to privacy by proceeding along two lines. “First, [the Court] has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. [He cited Roe v. Wade and Pierce v. Society of Sisters]. Second, [the Court] has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged.”43 Neither of these withstands even cursory examination.
The first line of argument gives itself away at once with the qualification that the Court protects the right to make those decisions that are “properly” the individual’s to make. What is proper is not an objective fact but a moral choice to be made by someone, and the Bowers dissent says the moral choice is for judges. That is bad enough, but the next question is whether the judges can at least frame criteria that guide them to their choice and explain to us why the choice is correct and what is likely to be the judges’ next choice on behalf of the individual against society. From the evidence of Blackmun’s Roe opinion there are no such criteria, or at least none that the Justices care to share with us. Bowers, on the other hand, confirms the conclusion that there are no such criteria by trying to explain them to us. The dissent chastises the majority for stating that prior cases had related to the protection of the family. That may be so, Blackmun said in a truly startling argument, but the rights to be protected extend beyond that, because “We protect those rights [associated with the family] not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ‘[T]he concept of privacy embodies the “moral fact that a person belongs to himself and not others nor to society as a whole.” #8217; ” It is doubtful that there are any moral “facts,” as opposed to moral convictions, but if there are, this is not one of them and cannot be so long as we live in a society. If the opinion meant what it said, four members of the Court viewed the state of nature, in which every individual is free to be for himself and no one else, as the moral condition contemplated by the Constitution. That view of the individual and his obligations can hardly be taken seriously. In our view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a “person belongs to himself and not others.” No citizen should take the view that no part of him belongs to “society as a whole.” Under that notion, there would be no moral obligation to obey the law and it would certainly be impossible to draft an army to defend the nation. Here and elsewhere some Justices have enunciated a position of extreme individualism, which amounts necessarily to an attitude of moral relativism. If all that counts is the gratification of the individual, then morality is completely privatized and society may make no moral judgments that are translated into law.
The dissent cannot really mean what it said and, indeed, no Justice takes any such position consistently. None could since all law is based upon moral judgments. There is, for example, no basis for worker safety laws other than the moral judgment that it is wrong to endanger workers’ lives and limbs in order to produce goods at lower cost. There is no objection to segregation or even to slavery other than moral disapproval. No one suggests that the fourteenth amendment, which ended the one, and the thirteenth amendment, which ended the other, are based on anything other than morality. Justice White rejected Justice Blackmun’s point as phrased by Hardwick. Hardwick made the argument that has become common in these cases. White said he asserted that “there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”44
Justice Blackmun attempted to repair his position somewhat by claiming that “what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.”45 “Intimate associations,” of course, means sex. It has never been thought, until the rampant individualism of the modern era, that all individuals are entitled, as a matter of constitutional right, to engage in any form of sexual activity that appealed to them. The dissent had no real reply to the majority’s observation that if the constitutional argument is “limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” Indeed it would. When the community decides that certain sexual conduct is permissible and other conduct is not, courts have no way of disagreeing about the line drawn except by saying that the judges’ morality is superior to that of the majority of the citizenry and is, for that reason, to be transformed into a constitutional standard.
The dissent’s second line of argument, that a right of privacy attached because Hardwick’s behavior occurred in his own home, “a place to which the Fourth Amendment attaches special significance,”46 fares no better. The fourth amendment states that citizens are to be secure in their homes from unreasonable searches and seizures; it does not even remotely suggest that anything done in the home has additional constitutional protection. Moreover, that amendment specifically recognizes the government’s right to enter a home under a proper warrant, or if the search is reasonable. That certainly suggests that the privacy of the home is less than absolute. Many actions taken entirely in one’s home can nonetheless be punished by law. Of course the Constitution and much legislation protect the privacy of the home in many respects, but they also leave much that is done in the home unprotected. When Justice Blackmun extrapolates from protections that exist to create a new protection not to be found in existing law, he performs precisely the same logical leap that enabled Justice Douglas to invent a right of privacy in the first place. Thus, it is appropriate that Justice Blackmun should end this section of his opinion with the observation that the “right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.”
The dissent makes a point of the fact that Hardwick’s behavior was not physically dangerous to those engaged in it or to others and refers to “victimless” activity. That, as we have reason to know, is not true. But, in any event, physical danger does not exhaust the categories of harms society may seek to prevent by legislation, and no activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral. That statement will be taken as repressive by many, but only because they really do not disapprove of the conduct involved in Bowers. If the sexual conduct involved was bestiality, they might agree that it could be prohibited by law, although the only objection to it is moral.
There is vast confusion upon this point. In the seminar on constitutional theory I taught with Alex Bickel, I took the position at one time that it was no business of society what conduct that did not harm another person took place out of sight. Indeed, my position then, though not my reasons, was almost identical to that of the Bowers dissent. Bickel posed a hypothetical. Suppose, he said, that on an offshore island there lived a man who raised puppies entirely for the pleasure of torturing them to death. The rest of us are not required to witness the torture, nor can we hear the screams of the animals. We just know what is taking place and we are appalled. Can it be that we have no right, constitutionally or morally, to enact legislation against such conduct and to enforce it against the sadist? I cannot now remember what, if any, answer I gave; certainly, whatever it was it was not a very good one. Bickel was right. Moral outrage is a sufficient ground for prohibitory legislation
.
Many people will argue that Bickel’s hypothetical does not at all resemble a law against consensual homosexual sodomy since cruelty to animals is involved in the former. We have already dealt with that argument. There is no objection to the torturing of puppies for pleasure except that it outrages our morality. There is, indeed, no objection to forcible rape in the home or to the sexual abuse of a child there, except a moral objection. But, it will be said, those cases do not involve consent or do not involve a consent the person is mature enough to give intelligently. Those are not objections to the comparison. They are merely statements that the speaker perceives a moral distinction in consent. But the perception of a moral distinction does not affect the point being made that morality, standing alone, is a sufficient rationale to support legislation. In fact, for most people, consent does not solve everything: they would favor laws punishing the torture of a consenting masochist or the provision of cocaine to a willing purchaser. I am sure to be attacked on the ground that I see no moral distinction between forcible rape and consenting sexual activity between adults. That is not true. I do see a clear moral difference. But the subject for discussion is not my morality. Nor is it the case that the moral difference between consent and non-consent means that only behavior involving the latter may be punished by law. If a majority of my fellow citizens decide that the cases, while not alike, are nevertheless similar enough so that both actions should be made criminal, while I may disagree with them morally, the fact that I am a judge does not mean that I am entitled to displace their moral judgment with my own. A robe is entirely irrelevant to the worth or power of one’s moral views. A judge is also a voter, and it is in the polling booth that his moral views count.
The dissenting opinion also made the elementary error of confusing its power to override legislated morality when that morality conflicts with the Constitution and its power to override legislated morality when that morality conflicts with nothing in the Constitution but only with the judge’s preferences. I have heard this argument when I sat on the bench: why, if you allow people to legislate their morality, it is said, they can decide that morality requires racial segregation. The argument is that if courts allow people to legislate on the basis of morality, the people will legislate immoral laws. There could hardly be a clearer statement that what those who want activist courts actually fear is rule by the people. The people cannot, of course, reflect any racist morality in law, because that notion of morality is placed out of bounds by the fourteenth amendment.
But the dissent went beyond denying that morality could be a basis for law and contended that if the morality was based in religion, that fact made the law worse. The Georgia Attorney General had argued that traditional Judeo-Christian values proscribed homosexual sodomy. The dissent correctly noted that conformity to religious doctrine is not enough to sustain secular legislation, but the opinion went further:
[F]ar from buttressing his case, [the Attorney General’s] invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy’s heretical status during the Middle Ages undermines his suggestion that [the statute] represents a legitimate use of secular coercive power. A State can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus.47
The fact that a moral view is embodied in religious doctrine does not convert either the view or the doctrine into religious intolerance. The Constitution prohibits punishing a person because of his religious beliefs; to do that would be religious intolerance. All religions of which I am aware condemn murder. One supposes that the dissenters would not find a homicide statute undermined by that fact. Indeed, if a religious parallel or basis for a law makes the law suspect, the Court should reexamine statutes punishing perjury since Jews and Christians believe that God has commanded, “Thou shalt not bear false witness.”
There is a further paradox in the judicial objection to morality as the basis for legislation. Judges who vigorously deny elected representatives the right to base law on morality simultaneously claim for themselves the right to create constitutional law on the basis of morality, their morality. There being nothing in the Constitution prohibiting legislated morality, the only opposition to it rests upon a moral view. The Bowers dissent said as much when it stated as a “moral fact” that a person belongs to himself and not to others or to society. Moral relativism is, after all, one moral position. But the imposition of moral relativism upon legislatures by judges is not, strictly speaking, moral relativism in itself. It is more accurately described as the belief that the only valid and trustworthy morality is the judges’. That being the case, even should Roe be overruled, we have no idea what the “right of privacy”—or some other judge-made moral principle—may accomplish next.
The First Amendment and the Rehnquist Court
There will be no attempt here at a comprehensive survey of the first amendment rulings of the Supreme Court during William Rehnquist’s tenure as Chief Justice. Rather, a few of the most recent decisions are discussed in order to make one point. The press, both print and electronic, have announced that the Court has a “working conservative majority,” that the present Court is imposing the “conservative social agenda” on the country, and that the Court has taken a “sharp turn to the right.” These things are simply not true. We have become so used to a left-liberal Court that any move toward the center is immediately proclaimed a right-wing threat to our basic liberties. We may pass by the point that what is seen from the left as a threat to American liberty is almost any instance in which the Court allows the American people to decide a question in a way the left dislikes. The point to be made is that we have recently gone from having a reliably left-liberal Court to having a mildly and somewhat inconsistently left-liberal Court. This is not because a majority of the Justices are liberal—although certainly there is no majority of conservatives either, except from the perspective of the left. The major reason for the course of the Court is, I think, that in the past four decades so much constitutional doctrine has been remolded on left-liberal assumptions that only a self-consciously and determinedly centrist Court could gradually, over a period of years, extricate itself. In any event, the cases discussed next should dispel any notion that the Court is now imposing conservative values upon the nation.
Forty-eight states and the federal government had laws prohibiting the desecration or defilement of the American flag. They do no longer. In Texas v. Johnson, five Justices ruled that a man who burned the flag in public to express his hatred for the United States was protected from prosecution by the first amendment’s guarantee of the freedom of speech.48 Justice Brennan’s opinion rests upon two propositions, neither of which can be maintained. The first was that enforcement of the statute violated the “bedrock principle underlying the First Amendment,” that being: “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” If we accept that formulation, nothing follows. Texas had not prohibited the desecration of the American flag because the idea expressed was offensive but because the mode of expression was. Johnson and his companions chanted while the flag burned, “America, the red, white, and blue, we spit on you.” Nobody suggested they could be punished for that, although the idea, or rather the emotion, is the same as that expressed by the burning. There were dozens of ways for Johnson to express his sentiments. Nor is it unusual for the first amendment to allow the prohibition of particular modes of expression. One supposes that the delivery of a political view in obscenities could be barred, as could its delivery by a sound truck in a residential neighborhood at two in the morning, or indecent exposure as forceful symbolism for a point of view.
The opinion’s second proposition fares no better:
To conclude that the Government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the Government, on this theory, prohibit the b
urning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced toconsult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do.49
This is a claim that the Court cannot make distinctions, a function it performs continually. The national flag is different from other symbols. Nobody pledges allegiance to the Presidential seal or salutes when it goes by. Marines did not fight their way up Mount Suribachi on Iwo Jima to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.
To see how far the Court has moved, it is necessary only to recall, as Chief Justice Rehnquist’s dissent did, that Chief Justice Earl Warren and Justices Hugo Black and Abe Fortas, a trio unlikely to be enshrined in any conservative pantheon, all expressed strong views that the Constitution did not prevent the states and the federal government from prohibiting the burning of the flag.50
In its most recent term, the Court also found that the first amendment protected the delivery of pornographic messages by telephone, thus throwing the mantle of the Constitution around the multi-million-dollar “dial-a-porn” industry.51 Contrary to the historic meaning of the first amendment’s prohibition of the establishment of religion, the Court held that a creche could not be displayed in a public building during the Christmas season.52 And, contrary even to its own precedent, the Court declared invalid a state tax exemption on the sale of the Bible and religious literature.53
The Tempting of America Page 17
