March 2, 2006

From Griswold to Lawrence and Beyond: The Battle Over Personal Privacy and the New Supreme Court

Although a right to personal privacy is not mentioned in the Constitution, most judges and legal scholars acknowledge that a measure of privacy is essential to the pursuit of life, liberty and happiness. The exact extent of that privacy, however, is highly contested. Indeed, some of the most hotly debated high court decisions in U.S. history, such as Griswold v. Connecticut, Roe v. Wade and Lawrence v. Texas, have involved privacy issues. On one side are those who believe the court must recognize and defend personal liberty against majoritarian intrusion. Others argue that the right to privacy is largely a judicial contrivance at odds with the text of the Constitution and the original intent of the Framers.

The Pew Forum, together with the Federalist Society and the Constitution Project, held an event to examine the current state of privacy law in the United States, especially in light of the recent confirmations of John Roberts and Samuel Alito to the Supreme Court.

Speakers:
Hadley Arkes, professor of political science, Amherst College
Chai Feldblum, professor, Georgetown University Law Center
William Hohengarten, partner, Jenner & Block, LLP
Daniel Robinson, professor of philosophy, Oxford University

Moderator:
Dean Reuter, director of the practice groups, the Federalist Society


Event Transcript

reuter.jpgDEAN REUTER: I am the director of the Federalist Society’s practice groups. This conference on the right to privacy is sponsored by the Federalist Society’s Religious Liberties Practice Group, the Pew Forum on Religion & Public Life and the Constitution Project. It is one of a series of such programs that we are presenting together, and I welcome you here today on behalf of all three organizations. Many thanks and my acknowledgments to David Masci of the Pew Forum, Sharon Bradford Franklin and Virginia Sloan of the Constitution Project and their respective staffs.

We are here today to debate privacy. Throughout Western history, discussions of privacy have been deeply related to parallel discussions on the nature of individuality, civic duty and human dignity. In the United States, while some level of privacy has generally been recognized as essential to the pursuit of the dream of life, liberty and happiness, the exact extent of such privacy is open to heated debate. Does the sphere of privacy include a couple’s right to use contraceptives, to have an abortion, to engage in sexual practices contrary to statutory norms, and does it include married persons of the same sex? Or does this view of privacy lie outside the Founders’ intentions? Are the protections of privacy restricted to the specific text of the Fourth, Fifth, Ninth, and 14th Amendments, or do the words of these amendments allow for a more expansive view?

With the recent nominations and confirmations of Chief Justice John Roberts and Justice Samuel Alito, this age-old debate is renewed. Here today, we seek to contribute to this discourse by looking at the current state of privacy law in the United States, its ramifications on lower courts, states, communities and individuals, and its future development in light of recent changes in the nation’s political and judicial environments.

The 1965 Supreme Court ruling in Griswold v. Connecticut concerning the right to contraception changed the state of privacy law for generations to come. Before Griswold, privacy was relegated either to common law, where it was concerned with protecting a person from unwanted intrusion and harmful speech, or to very limited instances of constitutional law, where it dealt primarily with Fourth and Fifth Amendment issues like eavesdropping. Although the concept of privacy was invoked to defend individuals against social or governmental intrusion, an explicit right to privacy was never acknowledged by the court until Griswold.

In Griswold, Justice William O. Douglas, writing for the majority, asserted that a definite right to privacy could be garnered from emanations surrounding the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. Justice Douglas essentially argued that the specific rights guaranteed in these several amendments could not be fully realized unless surrounded by penumbras that expanded the meaning of their original texts. Griswold transformed the concept of privacy from a series of discrete prohibitions or restrictions on governmental action to a broad-based protection of personal autonomy. New applications of the privacy right then began to emerge where none had previously existed. In the landmark case of Roe v. Wade, the Supreme Court held that laws prohibiting a woman’s ability to have an abortion violated her fundamental right to privacy and, as such, were unconstitutional. In Bowers v. Hardwick, which upheld the constitutionality of sodomy laws in Georgia, the court ruled that the right to privacy did not extend to cases involving same-sex sodomy. However, Lawrence v. Texas recently overturned Bowers and struck down the criminal prohibition of sodomy in Texas less than a generation later.

Proponents of Griswold and its descendents argue that in the Griswold line of cases, the court was acting to protect fundamental rights, that the very structure of the Bill of Rights entails a broad respect for personal liberty and that the court’s very purpose is to recognize and defend that liberty against majoritarian intrusion. Opponents argue that the right to privacy is simply a judicial concoction at odds with the text of the Constitution and the original intent of the Framers and that the court has usurped the democratic process. In recent years, this controversy has presented itself in a number of ways we will talk about today. Lawrence has, at least in part, opened a debate on same-sex marriage laws in several states. At least two serious proposed constitutional amendments to define marriage have emerged. South Dakota has recently attempted to directly challenge Roe v. Wade with a bill that would essentially ban all abortions not necessary to save the life of the mother. I read this morning that Mississippi is contemplating the same strategy. And the Supreme Court recently agreed to hear a case concerning the congressional ban on partial-birth abortions.

So the debate on a constitutional right to privacy is perhaps nearer its beginning than any final resolution. For our panel today, we will focus on whether government incursion on privacy is necessarily an incursion on the explicit constitutional right to liberty. If the state can regulate some private arrangements, as in family law and private business deals, how do you draw the line between what the state may and may not regulate, and who draws that line? What precisely are the limits of the right to privacy, and will the new composition of the court matter in this discussion?

First, we’re going to hear from Hadley Arkes, professor at Amherst College. Then, we will hear from Chai Feldblum, professor of law at the Georgetown University Law Center. Third, we’ll hear from Dan Robinson, professor at Oxford University. And finally, we will hear from William Hohengarten from the D.C. firm of Jenner & Block.

arkes1.jpgHADLEY ARKES: Friends, as you’ve heard, we’re confined to 10 minutes, and so I may have to use an old device of mine and compress this talk Hebraically by omitting the vowels. (Laughter.) But every word counts. In the run-up to the hearings of Sam Alito, a reporter from a paper in Sacramento called to ask whether the pro-lifers were disturbed that both John Roberts and Sam Alito had accepted a constitutional right to privacy. I explained there was no problem, that they could readily concede a principle of privacy and there was no need to find that principle in the 14th Amendment or the Fourth or in penumbras. I said that the regime itself, the constitutional order began with a deep premise that people had a presumptive claim to freedom in all dimensions of their lives. They would have the freedom to deliberate about the grounds of their well-being and pursue their own private interests. The burden of justification fell to the government whenever it would override those private rights.

A constitutional order meant a limited government – a limit to the reach of public authority. And what was marked off then was a sphere of privacy outside the reach of the law. It was understood in the past that a liberal constitutional order drew a sharp line to protect the sphere of privacy – private business, private clubs, yes, even private families – with the freedom to arrange their lives according to their own private criteria. But clearly, the community has found reason at different times to penetrate those spheres of privacy. We have legislated against racial discrimination in private corporations and even private clubs. We have intervened in the lives of families to protect children from abuse or death at the hands of their parents. And with the same sense of the matter, the law in the past has cast its protection on the unborn child in the womb, as James Wilson so luminously explained in his lectures on jurisprudence in 1790.

In each case, the question was whether there were wrongs to be vindicated, harms to be averted. And in each case, we would need to judge whether the intervention of the law would be justified or unjustified. The point is that merely invoking the notion of privacy does none of the heavy lifting here. It does not tell us whether the law would be justified in intervening in any case to protect victims from suffering wrongs or irreparable harms. It is curious that we hear so much about privacy at a time when respect for privacy has so dramatically receded. The people who talk most insistently about privacy have been most willing to see the law invade spheres of privacy in private businesses and private clubs for the sake of reaching instances of discrimination. And many of the same people have been willing to extend the laws on sexual harassment or even reach matters of rape within the family.

Now, in none of these instances, let me emphasize, do we depend on surveillance. Instead, we have seen the willingness of people to lodge complaints, to invite the inquiry of outsiders and to expose, in a public, legal forum, the most intimate details of their sexual lives and their sexual encounters. We seem to see the banner of privacy raised these days mainly to protect the right of people to end the life of a child in the womb for wholly private reasons (a concession that the law makes in no other part of the law). Or, in the case of gay rights, the principle of privacy is invoked for the purpose of fending off those people who might cast moral judgments on sexual encounters taking place in private settings.

Strictly speaking, a right of privacy can never be explained or justified as a right to mark off a domain insulated from the reach of the law, behind which people may claim a “right to do a wrong.” A murder in the bedroom is as much a murder as a murder in the public streets. Packets of heroin hidden in body cavities have come within the reach of the law, which has, as Judge Sirica used to tell us, a claim to the evidence of any man or woman, even if it has to be taken out of obscure places. (And taken out, we might note, with the artful use of pincers, under a court order.) But even in private sexual encounters, anyone with a sense of the law and moral judgment can see that Justice Kennedy truly overreached in Lawrence v. Texas if he really meant to suggest that private consensual acts may never become the concern of the law. Just about every conservative I know would have held back the law or repealed that criminal law on sodomy in Texas. And yet it marks a kind of flight from sobriety or even a faintly rigorous juridical sense to say that the law may never cast an adverse moral judgment on sexual practice taking place in private settings. If we had men seeking to be adoptive fathers, it could make the most notable difference in the weighing of their claims if they happen to be committed members and officers of the Man-Boy Love Association or people quite openly committed to sadomasochistic sex. Even judges who tend to shy away from moral language may find reservoirs of judgment as they find quite plausible grounds to believe that a man committed to sadomasochism containing in his house whips and chains and fearsome devices does not figure to provide the most wholesome household for the nurturing of a child.

But then to the A word: abortion. I find it curious that so many people on both sides seem to think the court has been poised now at the edge of overruling Roe v. Wade. I’ve been in the pro-life movement for 30 years, and as a matter of prudence I would not seek an immediate overruling of Roe. We think those people in South Dakota have jumped the gun. But this move would set off a panic among people who would now think that the court was outlawing abortion or dispossessing them of a right, rather than simply returning the issue to the political arena where legislators and citizens can deliberate and vote on the matter. And what we are likely to see then is a rush to enact Roe v. Wade into statutes in various states. My own inclination is to move along the path that, in my reading, John Roberts and Sam Alito are far more likely to take. If they manage to flip the decision on partial-birth abortion – if they manage to sustain the federal bill – they will be saying, in effect: We are in business to start making serious and sustaining restrictions on abortion. And from that point on, we will see a steady flow of measures restricting abortion, moving step by step.

arkes2.jpgEvery one of these measures would involve things never actually settled in Roe v. Wade, measures that cannot be struck down simply by invoking the mantra of privacy and measures that would command at each step the support of about 70 percent of the electorate, including people who call themselves pro-choice. For example, we could test the Born-Alive Infants Protection Act, that act we passed to preserve the life of the child who survives an abortion. Is the “right to abortion” the right to detach oneself from an unwanted pregnancy, or is it the right to a dead child? Could a legislature require then the method of abortion more likely to yield the child alive? We could revisit that matter. A woman may have the right to choose, but is a decision taken in ignorance a voluntary decision? Many women are astonished to learn that the beating of a heart can be heard in the fetus at 22 days. And 67 percent of the public opposes abortion after that point. Would it be unconstitutional to make sure they know that or simply to ask women just what information they would like to have? There are lingering questions also about the right to perform surgeries on minors without the permission or even the awareness of parents.

When the court starts simply upholding restrictions of this kind, the regime of Roe will have come to an end quite apart from whether the court pronounces it overruled. Roe may stand then as a shell with the substance just more and more removed. Byron White, one of the original dissenters in Roe, once surprised Justice Stevens by remarking that he, too, could live with a certain understanding of Roe v. Wade. He might do that if Roe were placed on the same plane as those precedents from which Roe was supposedly drawn. And the so-called “right-to-marry” involved in Loving v. Virginia never meant that the state may not make many plausible, legitimate restrictions on the freedom to marry, as when it bars incestuous marriages or the marriage of minors. Roe could be taken to mean that there was a right to abortion when that surgery can be justified, but that the community may make many restrictions on taking the life of the child in the womb when it judges that there is no compelling justification for the taking of this innocent life.

At some point, it would indeed be important to overrule Roe, precisely because of the corrupting effect that it has as it touches all parts of our law and creates, for example, that notable exception to the First Amendment carved out for pro-life demonstrators. But we have here what has been called the art of overruling, the art of showing why the holding in Roe just cannot supply the grounds of judgment in case after case. And as the public becomes schooled to this movement – as it comes to see more and more restrictions as plausible and justified – there will be far less surprise or astonishment on the day when the judges finally decide to take the last, short step and announce that it is time to put this precedent away. When it does that, it will have removed a political holding that has done more than anything in the past 30 years to disfigure our jurisprudence and poison our national politics. Not a bad day’s work on the day that it is finally done.

feldblum3.jpgCHAI FELDBLUM: One of the nice things about panels like this is that you get to discover where there is, in fact, agreement on issues you wouldn’t necessarily find agreement on if you did not have something of a disparate panel. And then it also surfaces more clearly where the disagreements will be. So you’ll hear from me that I actually think Professor Arkes is absolutely correct that privacy may not be the best word to be using to capture what we are trying to talk about here. Partly, it is because of his statement that a fair number of uncomfortable, bad things that go on in the private sector – in the private home, in private corporations – are things the government wants to say should be illegal. But I think more importantly, from a legal perspective, it is because I do not think that is where the court is going as a legal matter.

I think the court has already started to move away from privacy jurisprudence back to a liberty jurisprudence where this started. With all due respect to Dean’s introduction about Griswold, we may have a jurisprudence now in which Griswold is not the touchstone. There are two cites I want to give you: One is the Glucksberg case. I strongly recommend anyone who’s interested in privacy and interested in this court to read the Glucksberg case (521 U.S. 702). And the second is an article that Professor Nan Hunter wrote in the Minnesota Law Review in 2004 called “Living with Lawrence,” where she pulled out what she saw as the trio of Justices Souter, Stevens and Kennedy moving away from privacy towards liberty. At the time she wrote this, Justices Roberts and Alito were nowhere in sight. I think, having looked at this again, I can imagine Justices Roberts and Alito joining with Souter, Stevens and Kennedy in this new approach I will describe. I think Scalia and Thomas will stay where Justice Rehnquist was in the majority opinion in Glucksberg, and I am not sure of what Ginsburg and Breyer will do. I’m also going to give you another reference: moralvaluesproject.org. It’s so much easier to go to a website, isn’t it? Moralvaluesproject.org is a website I started a year ago with the intent to infuse the conversation about sexual and gender equality with the discourse of moral values.

What is the argument here? I think you need to go back to the beginning – though perhaps not as far back as Justice Souter does in the Glucksberg opinion. I refer you to Glucksberg, but primarily, just to Justice Rehnquist’s majority opinion where he argues for keeping to the old approach of deciding whether it is a fundamental right to commit physician-assisted suicide. The case was challenging a Washington law that did not allow physician-assisted suicide. Justice Rehnquist stuck to the usual approach of asking, is there a fundamental right here? Let’s see there is a fundamental right to kill oneself? Gee, no, there isn’t. And, as Justice Rehnquist explained, once we determine a fundamental right exists, then it can be limited only if narrowly tailored to a compelling government interest. That is akin to taking the issue out of the public discourse and just having the courts decide. That was Justice Rehnquist’s point in the majority.

I then suggest you read Justice Souter’s concurrence. I think Justice Rehnquist talked as much as he did in the majority about privacy jurisprudence because he was responding to Justice Souter’s offer of a completely different approach to the liberty discourse, to the substantive due-process discourse. Justice Souter goes back to the 1800s; I’m just going to start you off with 1919, Meyer v. Nebraska. Nebraska passes a statute saying no one can teach a kid in school in any language other than English. The reasoning there was that we had all these foreigners coming, and, if they taught their kids in their mother language, they would never imbibe the culture of America. The Zion Evangelical Lutheran congregation was teaching its Bible stories in German, and was taken to court by the state of Nebraska. The congregation went to the Supreme Court contending that the federal Constitution should invalidate this state law. The court could have invoked freedom of religion. They didn’t; and you can realize it is not really a case for freedom of religion; they could, in fact, practice their religion – just not in German.

So the court affirmed that “the problem for us to determine is whether the statute, as construed and applied, unreasonably infringes on the liberty guaranteed to the plaintiff by the 14th Amendment: No state shall deprive any person of life, liberty or property without due process of law.” Okay, says the court, what does liberty mean? It sounds like it means the right not to be put in jail, right? You get life, liberty and property. But the court says we have not attempted to define with exactness the liberty that is being guaranteed: “From our cases, we do know it denotes not merely freedom from bodily restraint, but also the right of the individual to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, bring up children, to worship God according to the dictates of one’s own conscience and generally, to enjoy those privileges long recognized in common law as essential to the orderly pursuit of happiness by free men.”

This is way beyond the Fourth and Fifth Amendment, right? And this is not privacy. This is: What does it take to be happy? What are the essential components? They are the right to your occupation, to bring up your kids the way you want and establish a home, etc. Then the court says that the Constitution ensures you cannot be deprived of these rights without due process of law. What does that mean? The Court says: “The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.” “Without due process” means that it must have some reasonable relation to a purpose within the competency of the state to effect. Souter continues: “Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive. It is subject to supervision by the courts.”

That is the liberty interest. The state of Nebraska is saying it has a goal of making sure students can become real Americans. And the court says that the state “may go very far indeed in order to improve the quality of its citizens physically, mentally and morally,” but the individual has certain fundamental rights, which much be respected. So the court uses the term “fundamental rights,” but not in order to trigger some heightened scrutiny. It uses the term to describe the types of things that are basic to the happiness of an individual and to conclude that the state’s interest in creating real Americans cannot override that interest of the individual

feldblum1.jpgThe first time fundamental rights are tied with a strict scrutiny standard is in Skinner v. Oklahoma in 1942, a sterilization case in which the court said marriage and procreation are fundamental rights. But actually, that was an equal protection case, as opposed to a pure due-process case. What happened then is what Dean referred to and what we’ve all seen, for those of us who know the privacy jurisprudence. The court starts getting into the business of identifying specific fundamental rights. Is there a fundamental right? Does it fall within the concept of ordered liberty? And when the court found a fundamental right, it would require that the government’s burden be narrowly tailored to a compelling government interest, and the government would usually lose.

What Souter recommended in Glucksberg in his concurrence and what I believe the court did in Lawrence, although it didn’t state it outright, was to shift the analysis significantly. Souter went back to Justice Harlan’s dissent in Poe [v. Ullman] and said, this is how I think we should do substantive due-process analysis.

There were two points Souter took from the Harlan dissent. The first was Justice Harlan’s respect for the tradition of substantive due-process review itself and his acknowledgment of the judiciary’s obligation to carry it on. He said that under the Constitution, it is the responsibility of the government to see whether the legislature has impinged on basic rights or needs of the individual.

The second of the lessons from Justice Harlan’s dissent, which I think is key, is a reminder that the business of such review is “not the identification of extra-textual absolutes,” not the identification of some fundamental right, but rather “scrutiny of the legislative resolution of clashing principles, each quite possibly worthy in and of itself, but each to be weighed with the history of our values as a people. Thus, informed judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable.”

Let me say what this means in practice. What Justice Souter says the court is supposed to do – and I think this is what the court did in Lawrence – is first identify the interest of the individual. Souter very specifically says, do not call this interest a “right” yet; wait until the end of your analysis to see whether you’re going to call it a right. It should be given the name “right” only if, at the end of the analysis, it trumps the government’s law burdening it. Even a trivial interest that’s burdened by the government should be protected if there’s no reasonable explanation of why the government should burden it.

Second, the higher that interest is, the more you will demand of the state. Here’s Souter’s key sentence: “The weighing or valuing of contending interests in this sphere is only the first step, forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable. It is only when the legislation’s justifying principle is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way” – only if the interest of the individual is key and the state’s interest is low. This is an explicit balancing.

And that type of balancing is what was going on in Lawrence. I have one last cite to give you. I have a piece coming out in the Georgetown Journal of Gender and the Law called “The Right to Define One’s Own Concept of Existence – Rights for Intersex and Transgender Individuals Post-Lawrence.” Part of what I do is talk about how that mystery-of-life provision in Lawrence cannot mean everything. That’s a pretty high standard to reach – to get to the core of your existence. And what Souter says clearly in Glucksberg, and what I think the court was doing in Lawrence, and what I think we might see Roberts and Alito begin doing, is an analysis in which the interests – not using the word privacy – of a person’s sense of self are set high. It will not mean the state can never trump this interest, but it must have a pretty good reason. And if it doesn’t have a good enough reason, then we call it a right protected by our federal Constitution.

And I think the country will be better off when we do start doing that type of careful analysis. Thank you.

robinson1.jpgDANIEL ROBINSON: As Professor Arkes has indicated, privacy, as such, is inherent in any rule of law respectful of the dignity of the person and the liberty interests that arise therefrom. Hadley mentioned James Wilson. You probably all know that he was arguably second to Madison himself in shaping the Constitution, and he did make clear his position on the issues we engage in today in his lectures on law of 1790. They were published by his son in 1804. Wilson asked, “What was the primary and principle object in the institution of government? Was it to acquire new rights by human establishment, or was it by a human establishment to acquire a new security for the possessional recovery of those rights to the enjoyment of which we were previously entitled by the immediate gift,” he says, “of an all-beneficent Creator? The latter I presume was the case.” Thus, privacy, as Hadley points out, was not an issue.

But privacy is actually a neutral term in law, as it is a neutral term in morals. It’s not unlike the term autonomy or competence. Privacy refers neutrally to the venues and to the associations under which actions take place, just as autonomy or competence refers to the powers by which persons come to be judged as accountable. Consider here what was taken to be the pivotal question in Lochner [v. People of the State of New York]. What the Lochner court understood to be the fundamental tension was expressed this way: “It is a question of which of two powers or rights shall prevail – the power of the states to legislate or the power of the individual to liberty of person?”

But recall Justice Holmes’s dissenting opinion. In Lochner he makes this in the dissenting opinion, which, I think, looks ahead to a time long after Holmes: “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think injudicious or, if you like, tyrannical. The liberty of the citizen to do as he likes, so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth of some well-known writers, is interfered with by school laws, by the post office, by every state or municipal institution. The 14th Amendment does not enact Mr. Herbert Spencer’s social status.” I thought it was Holmes at his best. (Actually, he would have been inclined to legislate on behalf of Spencerian social status.) He certainly felt that way in Buck v. Bell.

On the matter of abortion, in which the consideration of privacy was significant, it would be an ignorance of history to think this was not something with which the Founders might have dealt with in an informed way. Let me get back to the same 12th lecture of James Wilson: “With consistency beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence and, in some cases, from every degree of danger.” Clearly, privacy here would not have permitted aborting a fetus at any time after quickening, at least in Wilson’s rationale.

It has been said, however, that the Constitution is an organic or elastic document intended to be modified and stretched to meet the enlarged expectations of persons living under ordered liberty. We might ask when this notion found expression in the higher councils of constitutional jurisprudence. Some would surely point to the famous essay on the right to privacy by Charles Warren and Louis Brandeis appearing in the Harvard Law Review in 1890. It is in that celebrated work that Warren and Brandeis refer to the right to be let alone, but they actually take this phrase from a classic work already 10 years older, Thomas Cooley’s Treatise on the Law of Torts. And when Cooley refers to the right to be let alone, consider how he would have this right understood: “The right to one’s person may be said to be a right of complete immunity, to be let alone. The corresponding duty is not to inflict an injury and not within such proximity as might render it successful to attempt the infliction of an injury. The right to be let alone, we see, is foundationally the right not to be harmed.”

robinson2.jpgThis is entirely clear when Warren and Brandeis take over the phrase. Note how they understand the law to be elastic and evolving as regards privacy: “Political, social and economic changes entail the recognition of new rights, and the common law in its eternal youth grows to meet the demands of society.” Thus, in very early times, the law gave a remedy only for physical interference with life and property. Then the right to life served only to protect the subject from battery. Note that they take the right to life as the anchor point from which common law in its eternal youth might grow to meet new demands. If you’re going to have emanations from penumbras, you’ll have to have some starting point, some point of origin for the emanation itself, that is, in case you want to understand these things in penumbral terms.

Although there are new demands, even the Griswold court based respect for privacy not on some new demand, but rather on one of the most venerable of social values, presumably among the earliest emanations from that famous penumbra. After noting these emanations, Justice Douglas goes on to say, “We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, an association for as noble a purpose as any involved in our prior decisions.” He speaks, of course, of marriage between a man and a woman whose noble purpose is the creation and nurturing of life. Surely Griswold leaves room for the laws of the state to promote a way of life that includes such noble purposes and that is not eroded by conferring comparably sacred status on other forms of association.

But this is not a biased reading of Griswold. It is clear from the authorities on which Griswold depended, not the least of which was Harlan’s dissent in Poe v. Ullman. Harlan speaks this way: “The home derives its preeminence as the seat of family life, and the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted constitutional right. Of this whole private realm of family life, it is difficult to imagine what is more private or more intimate than a husband and a wife’s marital relations.” What is affirmed here is not privacy tout court, but the special zone of privacy in which family life proceeds. Surely none of this envisages either abortion or same-sex marriage.

Our constitutional jurisprudence was declared by Gladstone to be the greatest stroke of genius struck off by the political imagination of man. Gladstone was, as you know, not a Founder. And although the Constitution is a great and enduring work, it has its own intellectual and philosophical precedents. The core precedent was spelled out by Aristotle when he wrested with the question, just what is law? Dioper aneuorexios nous o nomos estin: The law is reason without passion.

Thanks very much.

hohengarten1.jpgWILLIAM M. HOHENGARTEN: I’m at a bit of a disadvantage here because I’m the only panelist who’s not a professor, distinguished or even undistinguished. I’m just a litigator, and I don’t have a unified theory of substantive due process, but I do have every litigator’s help, which is my set of bullet points here. (Laughter.) And I think that what Professor Feldblum said when she started is right, that there is actually a broad range of agreement here.

First of all, I think most people would agree that the Constitution does embody the idea that there are some unenumerated rights, and I think that just leaps off the pages of the Constitution. It screams at you in the Ninth Amendment, in the 14th Amendment’s phrasing, in the Fifth Amendment’s – due process – privileges and immunities, and also in the structure of the Constitution, which is meant to preserve a sphere of personal liberty. So that would be a starting point for me: There are unenumerated rights. The question is, how do we determine what they are?

The idea that there are unenumerated rights reflects the basic philosophy that the government is not an end in itself. It is also not an end for majority rule for its own sake, or for the majority to impose its values on the minority group. But it is a means of achieving important public purposes and, to that extent, justifies limiting the liberty of individuals in many ways. At the same time, we as individuals are not creatures of the state, to use a phrase, I believe, from Meyers’ earliest German-language case. We are not here just to have our personal identities defined by majority legislation. That is a counter-majoritarian principle. There is no question about it, and that is why vindication of unenumerated rights, like vindication of enumerated rights, has to be committed to the judiciary to define and elaborate. It cannot be committed to the legislature, although the views of the legislature should always be given great respect in this matter.

When you’re talking about any constitutional right, but particularly unenumerated rights, it is very important that the judiciary exercise restraint. I think that’s common ground as well; it is counter-majoritarian. There is a reason for restraint there. The public may think there are important public purposes being pursued by a law, and that should be given great deference. Particularly if we’re talking about unenumerated rights, the court needs to think very carefully about whether to recognize a right. But that does not mean they should be abdicating their responsibility – and I think the court very conservatively and cautiously embraces this as a duty of theirs – to elaborate on what unenumerated rights are and protect them.

Justice Scalia has the most well-articulated view for a very narrow reading of unenumerated rights, although he does not reject the existence of unenumerated rights completely. His view is that they are protected only insofar as they were recognized at the time of the founding or at the time of the adoption of the 14th Amendment and at what he calls “the most specific level of description” of the right. I’ve never really been able to understand what a “most specific level of description” is. I don’t think such a thing exists, and that is a reason, I think, that his view doesn’t work as a practical matter. But I also believe it is wrong insofar as it would freeze the idea of unenumerated rights as if it were a tax code written into the Constitution when it was adopted, rather than a set of principles, which must be elaborated over time and which may have applications that the Founders would not only be surprised by, but which were the exact opposite of what they thought those applications would be.

That is true of all constitutional rights. It is certainly true of the First Amendment, which has many applications that are different from what the Founders would have expected. It is true also, for instance, of the Sixth Amendment right to jury trial, for which Justice Scalia has been the moving force in getting the court to recognize that it imposes extreme constraints on the ability of judges to find facts relating to sentencing. I think that result would have been very surprising to the Founders; however, it is one that I agree with. And I think the court moved in the right direction by elaborating that principle in a new way.

The same is true of unenumerated rights. Privacy is the topic of this panel, and I agree again with Professor Feldblum and the other panelists that privacy is not a very apt description and doesn’t do much work here. I think the word really does come from Justice Douglas’ opinion, which talks about penumbras, and is not really the model or framework that the court has used consistently. The court has looked more at unenumerated rights as a general topic. However, it does have a specific application to private life. And I think that the word privacy does capture the idea that there are certain realm – the family, intimate relationships – that are particularly likely to be places where individuals have an extremely high interest in determining their own course and the state has a particularly low interest in interfering.

But this does not mean a wall is erected around certain spheres. The phrase has sometimes been used that there is a “realm into which the state cannot enter.” I think that is the wrong metaphor, as every panelist has pointed out. Obviously, the state may and in fact must enter into the family life to prevent sexual abuse, child abuse, regulation of property rights and the like. We’re not talking about a specific space the state cannot enter. Instead it is an area where people are most likely to have interests that outweigh any interest the government may have in constraining what they do.

hohengarten2.jpgWhen you elaborate those interests, the court has for many years used the tiers-of-scrutiny approach, which was made up in the post-World War II period. It is not a very useful tool for dealing with this problem. Some criticisms have already been pointed out, but I think a further criticism is warranted. I draw this also from Justice Souter’s opinion in Glucksberg, which I think has affected my thinking a lot because I was clerking for him the year he wrote that opinion. I was particularly struck at the time by how different his thinking was from the rigid tiers-of-scrutiny that was taught to me in law school. And I’ve come to embrace it. You look at the individual’s interest alone and decide whether it’s fundamental or not or something in between. After you’ve decided what level of scrutiny to apply, then, and only then do you look at the state’s interests. That results in the state’s interests often being undervalued, or I should say the public’s interest – the important public interest in our government regulation.

What Justice Souter thought you need to do, and what I think the court in reality does in most cases, is to look more holistically at both sides of the equation – at the outset – the private and the public interest. I think when the court has gone wrong, it has been primarily because it has failed to recognize the public interest. That’s what you had in the Lochner era. The court properly recognized a series of private interests, I think, but it utterly failed to recognize the very compelling public interests in regulating wages, hours worked and so on, not just as something that just affects the people involved in the particular relationship, but which also has economic ramifications throughout society. So we moved beyond Lochner, not because it was wrong to recognize important rights against the government, but because it just recognized the wrong rights. It failed to pay heed to the important public interest involved.

Criticisms of Roe, I think, reflect the same frustration. This criticism was voiced in the plurality decision in Casey, which reaffirmed but also reconceptualized Roe. It said that Roe was right to recognize the woman’s strong interest, but that perhaps it gave too little weight to the public interest or the important state interest in protecting potential life and the health of a child. Casey moved much more in the direction of recognizing those interests and, I think, long ago started the movement toward recognizing the importance of upholding restrictions.

I had hoped to be able to discuss where I think the court will go. I will say there are still five members of the court who clearly reject Justice Scalia’s narrow view, regardless of how the two new members of the court vote. So there really won’t be any huge shift. Certainly, there won’t be one until yet another new member of the court comes on. The last thing I’d like to say is about marriage as a fundamental right. It is interesting to think conceptually about how marriage can be a fundamental right, and we can leave aside same-sex couples getting married and just think about opposite-sex couples, because marriage is something you actually need the law and the state to create. The traditional concept of privacy as a realm into which the state cannot enter is incompatible with that. I think we need to think more about what the bases of privacy jurisprudence are as a relationship between the individual and the state, not as something keeping the state out in light of the fact that there’s a long-recognized right to marriage.

MR. REUTER: One thing that has peaked my interest is this idea of balance, and the tests that are used by the court and others to decide when government intervention is permitted and when it is not. We heard a lot about strict scrutiny. I think there has been an evolution of that. There’s the undue burden. Is it just a matter of the old lions that are comfortable with the old standards and the application of those? Is there something to be said for the undue-burden standard? Do we really need standards that are exacting?

MR. ARKES: Chai, in her insidious way, has made my point. In Meyer v. Nebraska the hateful, awful, McReynolds in the course of that opinion told us the ways in which the state may still restrict the family. You may not put children in “Fagin’s School of Pickpocketry.” The state may decide if it is going to be a legitimate school with certain provisions for the teaching of civics. There are many things the states may do in restricting people and arranging for the education of their children.

On the matter of unenumerated rights, we should recall that this goes back to the original argument about the Bill of Rights. The objection of the Federalists was that the addition of a bill of rights would impart the notion that the things put down would always be regarded as more important than the things left unmentioned. The question of, say, wage price controls has never been reserved as part of the Bill of Rights. We presume it falls within the reserve powers of the government. We’ve said in other cases you could just as plausibly add to the current Bill of Rights the right not to have my luggage searched without justification at the airport, my right not have blood removed from my arm after an accident. And, as in other cases, the matter will still pivot on our judgment about the searches that are justified or unjustified, reasonable or unreasonable. As in all these cases, whether we call it a liberty or a fundamental right, marriage was regarded as a fundamental right, and yet we may still restrict it on various occasions with or without justification.

Chai raised the question of the equal protection argument in Skinner. The equal protection argument emerged when the argument was made that we were providing for the sterilization of the chicken thieves but not for the embezzlers who will steal more than the chicken thieves. I thought that argument was blown out of the water by Harlan Stone leading in and saying, I don’t think that the problems of this legislation would be cleansed if the legislature went on with a proper sense of symmetry and arranged for the sterilization of the embezzlers as well as the chicken thieves.

Equal protection arguments do not get you there. What gets you there is a sense that you must have more demanding evidence; be clear about the scientific data on the traits that aren’t genetically transmissible before you order up irreparable surgeries. And as Dan Robinson would point out, this kind of argument, cast in that way, would apply to compulsory psychosurgeries.

Chai, one of the pitches I make is that detaching this from equal protection may offer a vastly more libertarian doctrine. A quick comment on Glucksberg having more libertarian reach: I remember O’Connor in Glucksberg doing a rendition of Henry James’ woman doctor in The Bostonians: leaning in, listening to discussion and thinking, I have got about as many rights as I have time for. Sandra O’Conner looked in and thought, uh-oh, I don’t think we want all of this – and this kind of litigation on top of everything else.

So the thing that comes to mind is our dear friend Nino Scalia in the Cruzan case, and there are moments where he illuminates the landscape. He said, just a word for those of you out there who are running emergency ambulance services: If you go to the aid of someone who has tried to commit suicide and you restore him, you are not liable for an action under 42 U.S. 1983 for violating his civil rights, namely his right to die; it doesn’t rise to that level.

My pitch is that whether you call these things harms, liberties or fundamental rights, at the end of the day, the whole thing will still pivot on the grounds on which we make those judgments between the restrictions that are justified or unjustified. And whether it is an important interest or not will depend finally on whether we think it is a rightful interest.

feldblum2.jpgMS. FELDBLUM: Let me first say two things in terms of clarifying. The case that said the child isn’t a creature of the state was actually Pierce v. Society of Sisters, two years after Nebraska, where there was a state law requiring that all kids be sent to public schools. And the court said, no, this is an intrusion on a parent’s right to decide not to send the kids to a public school or to send them to a private school. But, the court said, parents can’t send their kids to a school for pickpockets. So, there is some range for the state to burden the parents’ interest.

And, second, I had also always thought about Skinner for the sentence where it says we are dealing here with legislation that involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. So I was surprised that the case actually went on to say, “We advert to these rights merely in emphasis of our view that strict scrutiny of the classification that a state makes in a sterilization law is essential.”

In other words, please do not misunderstand me, I think forced sterilization would be unconstitutional on substantive due-process grounds; that is, the essential right to decide whether or not to have a child. But the case was actually being tried on equal protection grounds. The reason it is important for this conversation is that people here who want to engage in the debate are going to have to realize you might have to let go of some of your jabs at penumbras because the court isn’t going there.

MR. ROBINSON: That is because there is no there, there. (Laughter.)

MS. FELDBLUM: Yes, fine. The fact is —

MR. ROBINSON: Nobody is defending Justice Douglas.

MS. FELDBLUM: The court is focused on a very enumerated right, and that enumerated right is liberty. What the court understands, though, is that liberty can include everything. What is unenumerated, then, are the types of interests that will rise to a level that, when you take into account the state’s interest, as Bill was saying, the state ends up losing. That is what is unenumerated.

What Souter was saying is that, if you intrude on relatively trivial levels on someone’s liberty, the government has to have some rational interests, but given a trivial imposition, and some rational reason by the government, and then that is fine.

But as Souter says, those instances are rare. The claim usually arises, in these un-enumerated rights cases, where the interests being claimed require particularly careful scrutiny. Here’s Souter’s language: “In the face of an interest this powerful, a state may not rest on a threshold of rationality or a presumption of constitutionality, but may prevail only on the grounds of an interest sufficiently compelling to place within the realm of the reasonable a refusal to recognize the individual right asserted.”

This is the name of the game, guys, not penumbras. When you look at the interest raised on the part of the individual, is what the state is asserting as a counter-interest sufficiently compelling to place it in the realm of the reasonable to not recognize that individual right?

Let’s put it in the context of marriage. And I love that Daniel Robinson ended with Justice Harlan’s statement about family. (Okay, his penultimate ending was about family and marriage.) Marriage: the ability to commit in the eyes of civil society to the person that you most love. How can that not be an incredibly important interest? For years it has been men and women who have been able to do that, not because there have not been gay people all through the ages who loved people of the same gender, but because they were not acknowledged in society.

I am in love with a woman. I will never marry her because she is theoretically opposed to marriage. But let’s assume she wasn’t theoretically opposed to marriage and she was now going to marry me, what is the state’s interest that will stop me from getting married to her and having that recognition and having those benefits? That is the debate we are going to be in, and I don’t think we know where Roberts and Alito will come out on some of these questions.

MR. REUTER: Mr. Robinson?

robinson3.jpgMR. ROBINSON: I aspire to amateur status when it comes to discussions of this kind. But I think if you went to your travel agents and said that you had enough money for a ticket either to a penumbra or to the realm of the reasonable they would tell you that there is no cartographer on earth who will be able to help you find either.
Look, I am a distinguished professor (laughter) and I fear I am about to prove it. At a certain point you have to step back and ask yourselves as citizens, what form of life you hope to nurture and support and celebrate under ordered liberty. And you begin that question with a maxim that was old when Socrates was young: Polis andra didaskei. “Man is taught by the polis, shaped by the polis.”

You can go a step further with Hegel and understand that, “What the law permits it encourages.” And you then have to ask yourselves how that instrument of your good will and sound judgment, that instrument of your virtues fully and selflessly expressed, finds its way through legislative remedies for things we are inclined to do outside the realm of reason.

Now, “privacy” and “liberty” in these contexts do turn out to be somewhat sloganeering, if you understand what I mean. It is very difficult to win an argument on the basis of skepticism about rights, particularly in this country. Rom Harré and I some years ago wrote a very long unread paper in the Review of Metaphysics on the nature of rights, and I just want to treat you to part of this for a moment.

There is a core question regarding the ontology of rights. We assume when we use the language of rights that we are referring to something not readily revocable by a legislative body or a court. We like to think it is something other than a privilege or permission; we think it’s something different from and more fundamental than a license. Well, what on earth is it? What standing do “rights” have in the realm of reality? Are they real things or are they simply modes of talk? Are they merely part of a language game?

The tentative conclusion we reached is that rights, given any kind of ontological standing at all, had to match up with vulnerabilities of a certain kind. You have a right in virtue of the fact that some things otherwise could be done to you. Done to you how? Through the application of the powers of another. So the ontology of duties matches up with powers and the ontology of rights matches up with vulnerabilities. If you begin to think of it that way, then what “rights” talk is about is saving others from pain and injury, and what “duties” talk is about is making sure that you do thus save others from injury and offense.

H.L. Mencken defined Puritanism as the haunting feeling that someone somewhere may be happy. (Laughter.) I’m not urging a puritanical position on this, but I would qualify a claim made by my learned co-panelist and law professor when she referred to our “right to be happy.” The right to be happy? I hadn’t heard that one before. Much obliged to you, ma’am.

MS. FELDBLUM: Moralvaluesproject.org. It’s the second moral value.

MR. REUTER: Maybe it’s the right to pursue happiness.

QUESTION: My question is directed primarily to Professor Feldblum. The assumption here seems to be that substantive due process is a legitimate concept to begin with, and in fact there is no evidence whatsoever, going back to the Magna Carta, to the Fifth Amendment, or to the 14th Amendment that due process meant anything other than a process in a court of law. It did not impart or place limitations on the legislature. Alexander Hamilton said so when he spoke to the New York State Legislature.

And as an aside on that, I did ask Justice Scalia one time about this attempt to limit the scope of substantive due process by relying on the most specific level of tradition, and I told him I didn’t understand that either, that one could pick or choose whatever tradition they wanted and that does not limit the scope of the judges. So my question is: Based on the text and history of the Due Process Clauses of both the Fifth and 14th Amendments, which were intended to overrule a substantive due-process decision, Dred Scott, how can one read any substantive rights, whether they be liberty or happiness, into the Due Process Clause?

MS. FELDBLUM: Without a doubt, if a majority of the court decided to go back to the due process, meaning you just get process in a court before your life, your liberty or your property is taken away, we don’t have much of a conversation here. That absolutely just shortcuts it.

Justice Souter did a very solid job in his concurrence in Glucksberg of going back to the 1800s, late 1700s even, to justify this broader view of due process. And I don’t this court is going to go back to the purely procedural approach you describe – there would not even be close to five votes for that.

So, that’s why we are in this conversation. We are trying to figure out important interests to individuals. And, let me say, instead of “right to happiness,” the way I articulate it in the Moral Values Project is that it is good for people in society to feel safe, it is good for people in society to feel happy, it is good for people to be able to care for others and to be cared for and it’s good for people to live lives of integrity. I consider these to be four statements of moral understanding that, in my view, a political democracy must advance. I believe, because of the vulnerability of people in society, you sometimes need an affirmative government effort to make sure individuals can be safe, that they can experience happiness, etc. The government can not give me happiness, but it can make sure that the social structures are set up so that I am not precluded from the chance to experience happiness. That is a moral point.

MR. HOHENGARTEN: I just have a brief response to that question too. I think the assumption is just that if unenumerated rights exist anywhere, it has to be in the due process clause; and we only get to that point because of some fairly crazy prior Supreme Court decisions gutting the Privileges and Immunities Clause, treating the Ninth Amendment as if it is meaningless, etc.

I think it’s a pointless debate because the Constitution itself, as I said, screams that there are unenumerated rights. If we accept all those prior decisions and the other clauses narrowly, it seems to me we have to accept the decision that stated we would hang this on the hook of the due process clause. But that really is just a hook for something that’s much more deeply embedded in the Constitution as a whole.

MR. ROBINSON: May I just give a quick citation – this is not a legal citation. You might be interested in reading Hilary Putnam’s “Brains in Vats,” [in his book, Reason, Truth and History] which is a shortcut to a life of fulfillment and happiness; it just isn’t a lived life.

MR. ARKES: As an addition, in support of Chai, we might cite Webster’s brief in the Dartmouth College case [Dartmouth College v. Woodward] for something to be said about substantive due process.

QUESTION: I am an arch-conservative myself. I do support both Griswold and Lawrence. I’m not a lawyer, but what I want to know is, what is the difference whether Griswold and Lawrence are upheld on the basis of privacy or on the basis of liberty?

MS. FELDBLUM: None.

MR. ARKES: Nothing.

MS. FELDBLUM: Zero. (Laughter.) Oh, my God, complete unanimity.

JAMES MANSHIP, GOD AND COUNTRY: Yesterday in either the B or C section [of the newspaper] on page 13, there was a story about a [pregnant] woman who is being charged with a felony for inducing labor by shooting herself in the belly. She is not being charged with killing the child. We have Laci and Conner’s Law [also known as the Unborn Victims of Violence Act of 2004], which stipulates that a man who does that is charged with killing a child. What about equal justice between the mother and the father, but also between the mother and a medical professional who’s allowed to kill a child by “aborticide”?

MR. ROBINSON: Inducing labor by shooting herself in the stomach?

MR. MANSHIP: Inducing an abortion, I think. What she’s charged with is inducing abortion.

MR. ROBINSON: The first thing I would do is send her Gray’s Anatomy. (Laughter.)

MR. ARKES: The point is very apt. It goes to the confusions and inconsistencies that we’ve had over the years. Take Zoe Lofgren during the debate over the Laci and Conner Peterson bill – what was Lindsey Graham’s bill called? The Unborn Victims of Violence Act. Lofgren could not concede that two bodies washed on the shore in the Laci-Conner episode. The screen of ideology came down. She could recognize these things in that case only as an assault on the woman because she could not recognize a second life to be present. But in that case, her theory gets in the way of allowing her to acknowledge what should be in plain sight to anyone with eyes to see.

But of course, that’s the sort of thing that gets to the core. We had that case in D.C. several years ago about the judge who confined a woman because she had a heroin habit that could affect the unborn child. For the sake of the unborn child he confines her, but she had the right at any moment to sweep away the obstruction by simply ordering the destruction of the child who was the object of concern and the very reason for her confinement.

MS. FELDBLUM: I feel like the legal jurisprudence is maybe just getting out ahead of some of the political rhetoric on the bills. I thought Bill’s comment about what was so interesting to him about Souter’s reconceptualization was bringing right to the forefront what interest the state has. I think Casey did some of that by saying – and you might agree or disagree with how much those state interests should be weighted – but as a general legal structure, that’s a good way to go; to not try to make believe that there is not a child growing in this womb.

As someone who works with Congress a lot, I understand the needs of political rhetoric to cut certain lines. But in this conversation, which is about where this court is going, it is not a bad thing to start establishing the state interests. You cannot then disregard the interest of the woman, which is incredibly significant. Maybe we will be getting to a better conversation about this.

MR. ARKES: But in the past we’d ask, could she not satisfy her interests with means that were less than lethal?

MR. MANSHIP: Or hiring somebody else to do the lethal action.

MS. FELDBLUM: If you think about less than lethal and continue and carry that child to term and all, then you can come back and talk about why that would be a fine way of dealing with the issue.

MR. ARKES: Would you put that on the same plane, the hurt of carrying the child to term as opposed to the lethal hurt done to the child?

MS. FELDBLUM: This is where I come back to the point that there is significant interest on the part of the woman who is forced to bear a child. That doesn’t mean that, even from the beginning in Roe, there aren’t interests of the child that exist as you get further along in the pregnancy. I’m not speaking for any abortion-rights groups – it’s not an issue that I’ve worked on myself. But I am very clear that there are significant interests of the woman that have to be understood. And this is where I thought Souter was great in his concurrence in Glucksberg. He said one of the things Harlan’s dissent addressed is you’ve got to dig into the details. You have to really try to live it, and rhetoric on either side, in my mind, is not living it in its truest way.

MR. ROBINSON: I can only speak from secondhand experience, but I do know that my daughter surely would claim that it has been far more difficult raising my two granddaughters for the past 14 years than it was spending nine months carrying them, but as I say, I only know this secondhand.

QUESTION: JOHN VECCHIONE, SHEPPARD, MULLIN, RICHTER & HAMPTON

MR. ROBINSON: That has to be a law firm.

(Laughter.)

MR. VECCHIONE: It is.

MR. ARKES: No, it’s a tailoring establishment. (Laughter.) I know for sure. They did this one. They did the suit.

MR. VECCHIONE: We talk about liberty and privacy and I think it makes a big difference whether it is liberty or privacy because the Constitution does say liberty. Nevertheless, here is my question: On all of these issues, abortion, contraceptives, all of them, we are seeing a movement in the states to make everyone else complicit in somebody’s privacy choice. And I’m thinking about the Massachusetts laws, which say that if you run an adoption service, you have to let homosexuals adopt and if you run a pharmacy out in California, you have to pass out morning-after pills.

And my question to the panel is, if all of these are on a liberty interest, and we agree that it would be best to approach it that way, how does it affect the person who doesn’t want to be involved in the liberty choice that is made by the other person, and are these laws going to fall under the same analysis? Thank you.

MR. HOHENGARTEN: For the last 70 years or so we have understood that if you choose to enter a profession, you can be subjected to regulations which require you not to discriminate; and that has deep roots in the common law in the obligation of common carriers… not to discriminate. It has been broadened to other businesses, but those aren’t the same kinds of intimate relationships that we are talking about invading, those that are being more protected under privacy jurisprudence.

If you just said, my act of conscience exempts me from the law, then everyone would be their own lawmaker in every area.

MR. ROBINSON: But suppose you said, my conscience forbids me, though I am a specialist in obstetrics and gynecology, from performing an abortion. This certainly would not be grounds even for a legal action or for a consideration of licensing. I think the burden of the question was where institutions and persons find themselves complicit in actions that violate the terms of conscience. Wasn’t that what you were getting at?

hohengarten3.jpgMR. HOHENGARTEN: Yeah. I have a right not to have an abortion; you would also have the right not to participate in other person’s choice to have an abortion. And I’m trying to stay away from the religious aspects of it, which I know that Chai is somewhat of an expert in. If you have these rights in a profession, if you don’t want to take part in this activity… assisted suicide, putting a guy to death if the state wants you to … can the state make you do it in the way they can in an adoption?

MR. ROBINSON: Well, we have a room full of lawyers. Has any doctor ever been successfully sued for refusing to perform an abortion on grounds of conscience?

MS. FELDBLUM: Well, not on abortion but there is a case in California right now suing a doctor –

MR. ROBINSON: I mean, actual states of the Union. (Laughter.)

MS. FELDBLUM: A doctor who refused to inseminate a lesbian, because he said I’m sorry; I just have a right of conscience against that. Go somewhere else to get inseminated.

I’ll tell you, this is very near and dear to my heart personally and I don’t think the answer is just to focus on someone’s religious beliefs. I think we need to focus on liberty interests generally. I think we need to see religious beliefs and pure conscience beliefs as equally protected under the liberty interests of a person.

This is a zero-sum game; people who believe that homosexuality is sinful or abortion is murder or inseminating a lesbian is sinful – I do not believe we treat them with respect when we do not acknowledge that a law might impinge on their liberty. I feel very strongly about this, and I say this in front of gay-rights organizations and audiences. I do not think that is appropriate to ignore the burden on the person who has these beliefs, religious or otherwise. That’s why I do not agree with courts that have said to a person who doesn’t want to rent to an unmarried, cohabiting couple, there is no burden on your religious beliefs.

I do believe, however, that when you have interests on each side, the state has to make a decision. And sometimes the decision to allow an exemption for someone with a religious belief might actually be okay. It would end up not trampling the interests of the person who wants the abortion or the insemination. And sometimes it would not be okay.

But we need to have a reasonable conversation about that. If you don’t start the conversation by recognizing that there is a burden on the liberty interest and you just say, oh, that is bigotry. How can you have a conversation? And, conversely, if you say, oh, it’s your religious right, you win automatically. Forget it. … We are not going to recognize how it feels when you have to go to another doctor to get inseminated; that is also not grounds for a conversation.

MR. ROBINSON: I wasn’t referring to a religious position; I was referring to a position akin —

MS. FELDBLUM: It doesn’t have to be religious.

MR. ROBINSON: A practicing physician faced with this request is, after all, not a pill-dispensing machine or a mechanic of the body, but a professional person who has interests in the long-term health and well-being of patients – current and future patients. On professional grounds that are arguable, that doctor might reach the conclusion that the request of this patient is likely to have untoward effects over the long haul and that is a medical decision made by that person. Obviously, in the example under discussion it would only apply to a lesbian couple seeking insemination and a doctor who, on professional grounds, decides not to perform the procedure.

I think if we are going to be facing these things as legal challenges to judgments of this kind, we better get busy now with the prospect of losing physicians in certain specialty areas owing to the fact that they are being called upon to do things that just fall outside the ambit of traditional medical practice. We do have to be careful how we treat our so-called healthcare professionals, by which I mean doctors.

MR. ARKES: I’ll take one more angle on this one. I think we come back to the same ground. Just take, as an example, Bill Clinton’s difference in approaching discriminations based on sexual orientation as opposed to discriminations based on racial discrimination. He was willing to give an exemption to a religious institution, the Catholics, about matters of sexual discrimination and sexual orientation, but not on the matter of racial discrimination. Evidently, he regarded the propositions establishing the wrong of discrimination by race as so much more firmly grounded that he was not willing to allow these kinds of exemptions. And I think finally that is what it is going to come down to.

What we are hearing now in Massachusetts is that this matter of same-sex marriage is so urgent, compelling and deep-running that it runs as deeply as the argument for racial discrimination. So, justices of the peace in Massachusetts who, on grounds of conscience, did not wish to perform those marriages, are now being denied their licenses; and I think we’re going to see this radiate outward. It is like Lincoln’s line about the adversaries of his time: “You must be avowedly with them; silence will not do.” Once they are clear there is a principle, it will radiate outward all of the way.

MS. FELDBLUM: The justice of the peace’s job is to issue a license … that is one of the jobs. (Chuckles.) If you don’t want to do that job of being the justice of the peace, then that is not the job you should be having in a state that recognizes marriage for same-sex couples.

I can see the folks whose heads are shaking in the audience, but I think that actually if we sat down and had a conversation…. Now I get some of the ones nodding the other way. (Laughter) The Becket Fund is coming out with a monograph, hopefully in a few months, on the issue of religion and marriage for same-sex couples. I think I was their gay-rights person for the day. But after a day of conversation at an event on this subject – we had exactly this conversation about the justices of the peace in Massachusetts; I had several people, who, while I hadn’t changed their minds, at the end were thinking about it in a somewhat different way.

I do not need to change the minds of the people who were just shaking their heads, but I would like to have a better conversation about why it may not be appropriate to let a justice of the peace not issue that license. That, I think, is a worthwhile conversation. What I said at the Becket Fund is that maybe we will come up with something more creative, which none of us has thought about before, that could recognize the liberty of the justice of the peace who disagrees with marriage for same-sex couples in a way that still works for the gay couples. Who knows?

MR. HOHENGARTEN: One more thing on issuing marriage licenses. In 1967, opposition to interracial marriage in many parts of the country was far more passionate even than opposition to gay marriages is now among most people.

And that same claim of conscience by public officials not to issue marriage licenses could have gutted I think something that all of us, I hope, in retrospect recognize was absolutely right. The government cannot discriminate against people on the basis of race by denying an opposite-race or different-race couple the right to get married. But if we allowed justices of the peace to deny licenses, they would take that power into their own hands. If we recognize that is not legitimate in that context, it seems we have to recognize it is not legitimate in the Massachusetts context.

MR. ROBINSON: But it is not applicable to the practice of medicine. That is another topic, perhaps. It is not a legislature that decides how a surgical procedure is to be performed.

ROGER SEVERINO, BECKET FUND FOR RELIGIOUS LIBERTY: Thank you, Professor Feldblum, for the plug. We are coming out with a monograph on the same-sex marriage issue and its implications on religious liberty. And, in particular, we will be speaking about the justice of the peace. One thing to consider is how it will affect the status of religious institutions as nonprofit entities. If we follow the logic of Bob Jones [v. United States], the case that said it is so compelling, so important to end racial discrimination in a university setting, that it is a justification for revoking tax-exempt status. So if you could comment on those and how it fits in the framework….

MR. ARKES: I think we are going to see that trend to try to deny tax exemptions to those churches that would put up opposition to same-sex marriage.

MR. HOHENGARTEN: I do not think there is much likelihood of that happening. That was a statutory denial of exemption that the Supreme Court upheld given the historic, very compelling state interest in battling race discrimination. It seems to me that we are very unlikely to see the legislative decision to begin with, which is to withhold a tax-exempt status. Perhaps I am sorry about that, but I think that that is the case. (Chuckles.) If we do see that legislative decision, it seems to me that it is on the basis of sexual orientation. It is not going to get the same level of deference from the court because I think, rightly, race discrimination is regarded as the most egregious form of discrimination.

MR. ARKES: But Bob Jones did not arise through a legislative action; it arose through private complaints to the IRS, which the IRS was willing to act upon. It’s just as Lincoln told Douglas: if we acquiesced in the Dred Scott decision, it would be extended to the states and Douglas said, nobody here sees that; nobody here intends it. But as Lincoln suggested: You do not profess to see it now, but you will see it when it comes upon us.

MS. FELDBLUM: I have to say I am in agreement with Bill. I just finished teaching Bob Jones to my statutory interpretation class; Arkes is right, about the IRS position. It was not an explicit statutory provision. Bu, like Bill, I it’s unlikely we are going to get that type of policy from the IRS – at least not in the near future. I do think though that the underlying point here is going to come up in more of these interactions that were raised earlier, in terms of individuals having to comply with neutral civil rights laws; and I think that is a challenge.

MR. ARKES: But here is the difference, Chai. When we are talking about whether it’s likely or not, we are simply making a prediction on the unfolding of events, which is quite different from the question of what is the logic of the principle as that principle unfolds?

MS. FELDBLUM: I agree with Bill that it’s an interesting question about whether tax-exempt status should be revoked. Interestingly enough, after I finished teaching the Bob Jones case, I thought Rehnquist was more correct as a statutory interpretation analysis. He thought it should have been up to Congress to be forced to decide whether to add a charitable requirement in the statute – either a general public policy requirement or maybe have one just specifically on race discrimination. Maybe if the issue does come up again, in the area of marriage for same-sex couples, we will have a different statutory interpretation result. That would be interesting to see.

MR. REUTER: Please join me in thanking our panelists. Thank you very much.

This transcript has been edited for clarity, spelling and grammar.