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from Political News and Parenting & Family
THE USES OF PRIVACY
Is The Supreme Court Poised To Redefine Marriage?
By Bill Duncan, NARTH Legal Committee Chairman
An important article in the Columbia Journal of Gender and Law describes how
recent U.S. Supreme Court decisions could eventually be used to create a court
mandate to redefine marriage as the union of any two persons. ("Beyond Romer and
Lawrence: The right to privacy comes out of the closet," Nancy Marcus, Columbia
Journal of Gender and Law, 6/22/2006)
The article provides an imaginative reinterpretation of constitutional law with
the aim of showing that a right of privacy thread has been woven throughout our
constitutional history. The article claims that the U.S. Constitution contains a
"longstanding privacy rights doctrine" although it was not provided per se
recognition until the 1960's. To do this, the author describes past cases that
recognized family autonomy as mere appli-cations of a broader privacy right.
Thus, the author argues that there is a longstanding "tradition of honoring
individual freedom in matters or privacy, autonomy, and self-definition."
To the author, however, it is two recent cases that provide the most important
indicators of the nature of the right to privacy. These cases have been decided
in the last decade: Romer v. Evans (1996) and Lawrence v. Texas (2003). In
Romer, the Supreme Court decided that an amendment to the Colorado state
constitution preventing state and local government from creating a legal class
status based on "sexual orientation" lacked any rational justification and,
thus, the Court assumed was enacted only out of spite. In Lawrence, the Court
struck down state laws prohibiting sodomy between consenting adults. The article
argues that these cases advanced an understanding of the Constitution as
"demand[ing] respect and freedom for all citizens under the protections of the
Constitution." Taken together, these cases create a "right to demand respect"
which "implies an affirmative protection from public stigmatization."
Having transformed Constitutional tradition into an ideology of the "armed
doctrines" of radical personal autonomy and egalitarianism, it is the work of a
moment to conclude that the Constitution's Fourteenth Amendment mandates a
redefinition of marriage. The author claims that after the Court's decision in
the Lawrence case, "individuals may demand affirmative respect from the
government for [intimate] private choices." She notes that with this theory in
place, "[t]he stage is thus set for the Court's recognition of same-sex marriage
rights under the Constitution."
This article provides an important summary of the kind of ideological
underpinnings, which taken to an extreme, could result in a decision that
marriage is unconstitutional. It also serves as an unintended warning that the
tools for this kind of result might be becoming available.
The way to defend against this logic is to reclaim the constitutional tradition
that has prevailed until quite recently. This tradition, exemplified in early
Twentieth Century Supreme Court cases, prevented the government from interfering
with "those privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men" and noted that some things are not "within the
competency of the state to affect. (Meyer v. Nebraska, 1923). This tradition has
survived in a more recent case which held that to merit constitutional status a
right must be deeply rooted in our history and tradition (Glucksberg v.
Washington, 1997).
This tradition is, however, threatened. This article has done a service by
explaining the nature and logic of that threat.
Updated: 3 September 2008
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