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.
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
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
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
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.
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
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.
Every 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.
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
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
The 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
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
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.
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."
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.
WILLIAM 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
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.
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
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.
MS. 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
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?
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
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
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
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.
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?
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
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
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
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
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
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
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
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
MR. REUTER: Please join me in thanking our panelists. Thank you very much.
This transcript has been edited for clarity, spelling and grammar.