Last edited: February 14, 2005


Opinion: What Courts Are Teaching

When a court does the right thing for the wrong reason, it does the wrong thing

Newsweek, December 7, 1998
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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 horse.

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 divorces.

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 "noble purpose."

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; citizenship, too.

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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