The Supreme Court in the Intimate Lives of Americans

Birth, Sex, Marriage, Childrearing, and Death

Howard Ball

• Publisher: NYU Press
• Year: 2002
• ISBN:
  9780814709085
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Choice Outstanding Academic Title 2003

Personal rights, such as the right to procreate—or not—and the right to die generate endless debate. This book maps out the legal, political, and ethical issues swirling around personal rights. Howard Ball shows how the Supreme Court has grappled with the right to reproduce and to abort, and takes on the issue of auto-euthanasia and assisted suicide, from Karen Ann Quinlan through Kevorkian and just recently to the Florida case of the woman who was paralyzed by a gunshot from her mother and who had the plug pulled on herself.

For the last half of the twentieth century, the justices of the Supreme Court have had to wrestle with new and difficult life and death questions for them as well as for doctors and their patients, medical ethicists, sociologists, medical practitioners, clergy, philosophers, law makers, and judges. The Supreme Court in the Intimate Lives of Americans offers a look at these issues as they emerged and examines the manner in which the men and women of the U.S. Supreme Court addressed them.

1
“Fundamental” Rights versus State Interests

The Balancing Process

There is a fundamental right to marry, maintain a home, and a family. This is an area where we have the right to be left alone.

—Justice Tom C. Clark’s remarks, in Conference Session,
Griswold v Connecticut, 1965¹

The right to be “left alone” is not absolute. “I like my privacy as well as the next one,” wrote Justice Hugo L. Black in his Griswold² dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional prohibition.” The Fourth Amendment, he reminded Americans for three decades, prohibited only “unreasonable” searches and seizures of persons, and their “houses, papers, and effects.”³

Since Griswold, the “right of privacy” has been seen, legally, as a fundamental right all persons possess. Legislators, presidents, governors, attorneys general, judges, pressure groups, and the general public accept the premise and the promise of this fundamental right. However, all agree, the state can invade one’s privacy if there are necessary and sufficient reasons for the intrusion. This, however, is the essence of the balancing dilemma faced by judges, from the local trial judge to the nine men and women who sit atop America’s judicial system as Justices of the U.S. Supreme Court.

Because the “right to privacy,” although labeled by Court majorities as a “fundamental” one, is not absolute, the U.S. Supreme Court has been intimately involved in resolving collisions between the individual and the state. In the past four decades, these clashes have involved issues that touch on the most private, the most intimate of personal relationships. This chapter examines how the Justices have employed the “balancing” process to resolve these intense encounters between individuals and the state.

I. “I Am Not Talking Very Much Like a Lawyer”

U.S. Supreme Court Justice Lewis F. Powell was in the throes of a legal and moral dilemma. It was early spring 1986. He and his law clerks were groping for a legal answer to the question: Does “the constitutional right of privacy give [a gay man] a fundamental right to engage in homosexual sodomy [with another consenting adult male]?”⁴ The flip side of the issue was also a conundrum for the Justice: Does the State “have a legitimate interest in legislating a moral principle?” Certiorari⁵ had been granted the previous Term. Briefs in No. 85-140, Bowers v Hardwick had been filed earlier in the 1985 Term of the Court; oral arguments were set for early April 1986.

The respondent, Michael Hardwick, a gay man⁶ living in Atlanta, challenged the constitutionality of a Georgia statute that stated that “a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” (If found guilty of the felony, the sentence was one to ten years in prison.) He sought a declaratory judgment from the federal district court that the statute was unconstitutional. After the U.S. District Court judge summarily ruled against him, the 11th Circuit Court of Appeals (CA11) reversed and sent the case back to the federal trial court for a trial on the merits. Georgia Attorney General Michael J. Bowers appealed to the U.S. Supreme Court and the Court took the case.

Lewis Powell, who, months before said to his law clerks, “we should not have taken this case,” now had to answer the legal question before the Court. Although the statute’s language encompassed sexual behavior by both heterosexual and homosexual couples, the state “practically concedes that the statute cannot apply to married couples,” wrote Mike, one of Powell’s three law clerks, in his Bench Memo of March 29, 1986.⁷

For Mike, Bowers “presents a fairly discrete legal issue: Is engaging in voluntary homosexual sodomy a fundamental right protected by the constitutional right of privacy?” Did the Georgia statute violate “the right of privacy found in the Fifth and Fourteenth Amendments’ guarantees of protection against the deprivation of life, liberty, or property without due process of law?”⁸

He reminded Powell that, according to Supreme Court precedent, the standard for determining whether a right was fundamental meant that the justices “must look at the history and ‘traditions and collective conscience of our people’ to determine whether a [right] is ‘so rooted’ [there] as to be ranked as fundamental.” He applied the “history and traditions” test and concluded that homosexual sodomy “does not fit within the right of privacy.”

Although Hardwick’s lawyer, Harvard Law School’s Lawrence Tribe, argued that the right of privacy protected all “intimate sexual relations in the sanctity of the home,”⁹ Mike suggested that the “Court’s right of privacy cases have never recognized a broad-based right of sexual freedom.” Only “traditional sexual relationships” have been protected by the Court: “Every one of the Court’s right of privacy cases can be explained in terms of a concern for the fundamental right of [traditional] marital and family privacy.” These cases dealt with “child rearing and child education, marital sexual privacy, the decision to marry, and the decision to have an abortion.”

The right-of-privacy cases are limited to marriage, family, and procreation [and] accurately reflect the basic values and traditions of our people. Personal sexual freedom is a newcomer among our national values, and may well be a temporary national mood that fades. I recommend reversal [of the CA11 decision].

On March 31, 1986, Powell wrote back. It was a somewhat personal note for, after talking about appropriate precedents in the case, he wrote:

In view of my age, general background and convictions as to what is best for society, I think a good deal can be said for the validity of statutes that criminalize sodomy. If it becomes sufficiently wide-spread, civilization itself will be severely weakened as the perpetuation of the human race depends on normal sexual relations just as it is true in the animal world.

“As you can see, Mike,” he added, “I am not talking very much like a lawyer.” He feared that the justices would find themselves on a terrible slippery slope if the Court upheld the CA11 order. He said: “If sodomy is to be decriminalized on constitutional grounds, what about incest, bigamy, and adultery?”¹⁰

Justice Powell told his biographer that he never knowingly knew a homosexual in his entire life.¹¹ Ironically, the Justice did not know that, in the year he struggled with Hardwick, one of his law clerks was a gay man.¹² Another law clerk, that year, recalled that, according to his boss, Powell told his colleagues that he had “never met a homosexual.”

He made the same comment to one of his clerks, oblivious to the fact that this clerk (as well as others in the past) was gay. As Powell engaged him in presumably hypothetical discourse on gay sexual attraction, the clerk considered revealing his sexual orientation but ultimately chose instead merely to plead Hardwick’s case with unusual emotion.¹³

As seen later in this chapter, Bowers v Hardwick expressed the majority’s very traditional views of marriage, family, home, privacy, and liberty. As Mike reminded Powell: “The kind of marriage that our society has traditionally protected clearly is heterosexual, not homosexual. It would be ‘bootstrapping’ to say that marriage is protected because of our history and tradition, and then add that homosexual relationships are protected because they ‘resemble marriage.’ … Once you conclude [that], you would necessarily suggest that homosexuals have a right to adopt and raise children.”

The Bowers insight touches on key issues this book will examine: marriage, sexual intimacy, procreation, family, homosexuality, personal privacy, the home, and liberty—and how the U.S. Supreme Court has participated in the dialogues. The conversations between Justice Powell and his law clerk also introduce the reader to the inevitable realities associated with judicial intervention into the general area of intimate associations.¹⁴

In America, as Alexis de Tocqueville observed almost two centuries ago, sooner or later all controversial public policy issues come before the U.S. Supreme Court. For over two hundred years America’s existence as a sovereign nation has been framed by the language of the U.S. Constitution as interpreted by legislators, executives, judges, and, in many cases, finally by the Justices of the U.S. Supreme Court. As Justice Robert Jackson once wrote about the U.S. Supreme Court’s “finality:” “We are not final because we are infallible, we are infallible only because we are final.”¹⁵

When interpreting the Constitution’s words in appropriate cases, most Justices of the U.S. Supreme Court have chosen one of two basic methodologies: “originalism” or the “evolving Constitution.” Originalists such as Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas believe that interpretation of the Constitution must rest on the original intent of the men who wrote the words and/or the original meaning of the words. At bottom, there is an understanding that there are unchanging principles of governing in the covenant called the U.S. Constitution and the sole task of the Justices is to discover these enduring values when deciding cases before them.

Justices such as William J. Brennan, Jr., and Thurgood Marshall, on the other hand, believed that the U.S. Constitution must be seen as an evolving fundamental law of government. The task of the Justices, in cases that require them to ascertain the meaning of a constitutional phrase, is to interpret the words based on a contemporary understanding of their meaning. At bottom, these Justices believe that contemporary society should not be bound solely by eighteenth-century ideas and by outmoded, centuries-old language. As Justice Marshall sardonically recalled, if society were bound by the original words of the Constitution, he’d still be serving coffee to his masters.¹⁶

The Supreme Court Justices hear and try to resolve a variety of controversial social and political matters. Issues such as slavery, the extent of state powers, the general powers of the national government during war and economic depression, as well as disputes involving whether the Constitution protects a person’s civil liberties and civil rights from governmental infringement. “In the past forty years [1960–2000] the courts have become forums for resolving social questions, and the docket of the Supreme Court has become defined by the most divisive issues. During the past fifteen years the line between law and politics has been increasingly hard to draw.”¹⁷

A prime reason for the blurring of the line is that the U.S. Supreme Court has found itself confronted with many dozens of cases in which plaintiffs claim that their “fundamental rights,” especially their “right of personal privacy,” have been infringed in some manner by the state. The Justices of the Court, for the past four decades, have heard—and decided—cases that dealt with birth as well as death; sexual relations and abortion; the meaning of family; and the sanctity of the home.

Inevitably, in this process of deciding case outcomes, based on the majority’s method of interpreting the Constitution, the Justices bring into the decisional equation and reach judgment based, in large measure, on their own values, prejudices, and biases. In a 1987 Memo to his colleagues Justice Antonin Scalia expressed his firm beliefs regarding the state of humankind: “It is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable.”¹⁸

In the Bowers litigation, one sees that Justice Powell’s own traditional belief about voluntary homosexual sodomy was determinative in his decision to validate the sodomy legislation. As he wrote to his clerk: “In view of my age, general background and convictions,” Powell did not see any constitutional protection for that sexual act. “As you can see, Mike,” he added, “I am not talking very much like a lawyer” (my emphasis).

Still another corollary axiom of U.S. Supreme Court decision making is “Who sits on the High Bench determines the outcome of controversial cases and controversies.”¹⁹ The presidential nomination of Justices of the U.S. Supreme Court—who must then be confirmed by the U.S. Senate—is one of the most significant of presidential powers. All Presidents want “their kind” of person appointed to the federal courts. A conservative President will want to nominate judges who share his conservative values, while a moderate or liberal President will want to nominate moderate or liberal judges.²⁰ Of course, once the jurist finds herself on the Court, she is there for life and can move in a direction different from the one imagined—and hoped for—by the appointing president.

When examining the Court’s decisions in cases involving intimate personal and family relationships, there is a sharp demarcation between liberal and conservative judges, largely reflecting the positions of the Presidents who nominated them to the high bench. There is a significant correlation between the Court appointments by conservative Republican Presidents and the Court’s decisions during and after these Presidents left office.

President Richard M. Nixon, 1969–1974, appointed Chief Justice Warren E. Burger and Justices Harry A. Blackmun, Lewis F. Powell, and William H. Rehnquist. President Gerald Ford, 1974–1977, appointed Justice John P. Stevens. Ronald Reagan, President from 1981 to 1989, appointed Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy. George Bush, President from 1989 to 1993, appointed Justices David Souter and Clarence Thomas.

Of the ten new persons placed on the Court by Republican Presidents, at least seven of these reflected and continue to reflect the conservative values of the Presidents who appointed them.²¹ Only Justices Blackmun, Stevens, and Souter have been disappointments to the Presidents who nominated them to serve on the Court.

An understanding of the Court’s involvement in the intimate lives of Americans must be based, in large part, on such fundamental political realities. To a certain extent, Court majorities indirectly mirror the...