Opinion: What Courts Are Teaching
When a court does the right thing for the wrong reason, it does the wrong thing
December 7, 1998
251 West 57th Street, New York, NY 10019
By George F. Will
Following the U.S. Supreme Court's logic to a conclusion that the court flinched from
reaching 12 years ago, Georgia's Supreme Court last week struck down that state's
anti-sodomy law. The court said the law violates the state constitution's privacy right.
Often, what a court does is less consequential than the reasons it gives for doing it.
Indeed, often the reason a court gives for doing something is what it does. In
privacy-right cases running back to 1972, courts are teaching Americans to misunderstand
themselves -- literally, their selves.
In 1986 the U.S. Supreme Court narrowly (5-4) affirmed the constitutionality of
Georgia's law that criminalized sodomy. The 1986 case, involving a homosexual, established
that consenting adults had no constitutional right to engage in homosexual conduct. (Last
week's case involved heterosexual sodomy.) One justice in the 1986 majority, Lewis Powell,
later said he regretted his vote. That was understandable, given the evolution of the
court's rationale for the privacy right from 1961 to 1972.
In 1961 the court dismissed on technical grounds a challenge to a Connecticut law
banning the use of contraceptives. However, two justices dissented, arguing that
enforcement of a ban on use of contraceptives would require government intrusion into the
zone of privacy necessary for healthy marital intimacy. So the privacy right was defined
and justified in terms of society's stake in a valued relationship, not merely in terms of
an individual's right to choose. The right was not -- not yet -- linked to a government
stance of neutrality among various choices people might make.
Four years later the court overturned Connecticut's law, but still not because privacy
protects individual autonomy in sexual lives. Rather, because privacy serves "a
relationship," the institution of marriage, which is "an association that
promotes a way of life" about which society is not neutral. The court could have
reasoned directly from this decision to its 1986 decision about Georgia's anti-sodomy law
-- if there had not been two intervening decisions.
In 1972 it overturned a law that banned not the use but the distribution of
contraceptives. Because use was not the issue, neither was intrusive enforcement that
would injure the institution of marriage by bringing government into bedrooms.
Nevertheless, the court overturned the law, arguing that it violated privacy simply
because it unjustifiably interfered with individual choices. The stage was set for the
1973 judicial earthquake -- Roe v. Wade.
The radicalism of that decision, which established a broad constitutional privacy right
to abortion, stemmed from this fact: the court severed the justification for the privacy
right from any contribution that right makes to the socially valued relationship of
marriage. Instead, the court said the privacy right "is broad enough to encompass a
woman's decision" to terminate a pregnancy. Mere deciding, not marriage, was what
mattered. One justice, using the language from the 1972 decision, stressed "the right
of the individual [the court's italic], married or single" to enjoy "freedom of
personal choice," without inhibition by husbands or parents.
The court had arrived at what Harvard's Michael Sandel, in his book "Democracy's
Discontent," says is a privacy right defined in terms of a "voluntarist
conception of the person." Henceforth, government would strive to protect
individuals' autonomy in making certain important choices, while remaining neutral about
the content of those choices. Which is why in 1986 the court seemed inconsistent in
upholding Georgia's ban on consensual adult sodomy.
It was too late for the court to say that homosexual activity is outside the zone of
protected privacy because it has "no connection" with "family, marriage or
procreation." Since 1972, the privacy right in sexual contexts has had no necessary
connection with those social relationships.
Upholding Georgia's proscription of sodomy, the court in 1986 insisted, correctly but
awkwardly, that moral neutrality is not a constitutional necessity of law because
"law ... is constantly based on notions of morality, and if all laws representing
essentially moral choices are to be invalidated ... the courts will be very busy
indeed." This is true, but the court was locking the barn door after selling the
The court had put its prestige behind the idea that individuals should be thought of as
freely choosing selves "unencumbered" (Sandel's word) by social roles or
relationships that society values. Is it merely coincidental that, as the court has been
embedding this "voluntarist" image of the individual in constitutional law and
the country's consciousness, marriage has been increasingly treated as just another
choice, to be casually made -- and unmade? Society's neutrality has resulted in no-fault
Sandel is a liberal, but is uneasy with the reasoning that courts use to give liberals
some victories. He would overturn Georgia's law and broadly affirm gay rights by recurring
to pre-1972 reasoning about privacy. He would have the law regard homosexuals, like
everyone else, not simply as sovereign choosers "unencumbered" by social roles,
but as "situated selves," defined by engagement in roles and relationships
society wants to encourage. Sandel would ground the elemental gay right (to intimacy
protected from intrusive government) in society's stake in encouraging homosexual unions
that are (to borrow language from the 1965 decision) "intimate to the degree of being
sacred ... a harmony in living ... a bilateral loyalty" in an association for a
Some thoughtful critics will say courts should not employ such language to give
society's imprimatur to homosexual intimacies. And these critics will insist that such
assigning of social values should generally be done not by courts but by political,
representative institutions. However, Sandel and his critics can agree that much damage is
done when we define human beings not as social beings -- not in terms of morally serious
roles (citizen, marriage partner, parent, etc.) -- but only with reference to the watery
idea of a single, morally empty capacity of "choice." Politics becomes empty;
The moral of the story is: when a court does the right thing for the wrong reason, it
does the wrong thing.
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