HOW PRIVACY WENT PUBLIC: James Taranto

Last week a state judge held that New York City's refusal to issue marriage licenses to same-sex couples violates the constitutional right to privacy. When the Massachusetts Supreme Judicial Court mandated the recognition of same-sex marriage in 2003, it too cited the right to privacy. Whatever the merits of gay marriage, this is a case of judicial activism run amok, for the contemporary right to privacy has its roots precisely in the traditional definition of marriage.

"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Justice William O. Douglas asked rhetorically in the 1965 U.S. Supreme Court case of Griswold v. Connecticut. Then he answered: "The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

But the court did not long confine those "notions of privacy" to "the marriage relationship." In less than a decade it expanded the right of marital privacy into a right of reproductive privacy. In Eisenstadt v. Baird (1972) the court held that unmarried couples have the same right as married ones to obtain and use contraceptives, and the following year, in Roe v. Wade, the justices declared that the right to privacy includes abortion.

...In Planned Parenthood v. Casey--a decision for which Justices Sandra Day O'Connor, Anthony Kennedy and David Souter claimed joint authorship--the court essentially upheld Roe, while asserting a new, breathtakingly expansive formulation of the right to privacy.

"Intimate and personal choices," the justices wrote, are "central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

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posted by Eve at 5:29 PM | link

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