J. Max Wilson
July 2, 2003
Penumbras of the Constitution: charting the origins of the abolition of moral legislation
By J. Max Wilson

Is prostitution now legal? How about adultery and adult incest? What about homosexual marriage? The Supreme Court's decision on June 26th in the case of Lawrence v. Texas did not just invalidate laws against sodomy, it may have put an end to all legislation of sexual activity between consenting adults and opened the door to the end of traditional marriage.

First of all, let me explain specifically how the Lawrence decision demolishes moral legislation.

I. Implications

This case was not just about the whether the Texas statute prohibiting sodomy between members of the same sex was constitutional. Though he probably could have successfully convinced the Court that the Texas law, which proscribed homosexual sodomy while leaving heterosexual sodomy legal, was unconstitutional under the equal protection clause of the 14th Amendment, Mr. Smith, the lawyer for the petitioners, went above and beyond the call of duty and took advantage of the situation to ask the Court to overturn its 1986 Bowers v. Hardwick decision.

Bowers v. Hardwick is important because in that decision the Court said that anti-sodomy laws in Georgia, which differed from the Texas statute in that they did not differentiate between homosexual and heterosexual sodomy, were constitutional because the state had an interest in preserving morality. Since its decision, Bowers has been used as a precedent to uphold a myriad of morality laws. In fact, in its 1997 decision of Holmes v. California Army National Guard, the Supreme Court relied on Bowers to uphold the federal statute that bans those who engage in homosexual conduct from military service.

The Court's June 26th Lawrence v. Texas decision sinisterly declares "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." [Emphasis added] The overturning of Bowers has far-reaching implications because all of the state and federal laws that cited Bowers to justify the legislation of morality may now be called into question.

In addition to overruling Bowers v. Hardwick, the phrases used in the Lawrence decision establish a new precedent that may be used to overturn all laws related to adult consensual sex. The ruling declares "…liberty gives substantial protection to adult persons in deciding how to conduct their lives in matters pertaining to sex." [Emphasis added] The phrase "in matters pertaining to sex" is purposefully and dangerously vague. Isn't the availability of pornographic material a matter pertaining to sex? Aren't prostitution, adultery, fornication, bestiality, and adult incest all matters pertaining to sex? This vague phraseology will be, without a doubt, used to invalidate any law that tries to control these matters of sex.

What about homosexual marriage? The ruling disingenuously declares that it "does not involve whether the government must give formal recognition to any relationship homosexual persons seek to enter." But despite this disclaimer the Court proclaims that "our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." [Emphasis added] By including "marriage" and "family relationships" in its list of constitutionally protected private decisions in which homosexuals may be autonomous, the Court has established an obvious precedent for the universal legalization of homosexual marriage.

How did this happen? Where does the Constitution say anything about a Right to Privacy or a right to sex? And who is at fault?

Let's trace the development of the so-called "Right to Privacy." Where did it come from and how did it become part of our Constitution without an amendment?

II. Origins

The word "privacy" does not occur in the text of the Constitution or its amendments, though the word "private" appears in the 5th Amendment when it guarantees that "private property" will not "be taken for public use without just compensation." This does not mean, however, that the founders did not concern themselves with privacy. The original right to privacy is found in the 4th Amendment to the Constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The original right to privacy was this constitutional prohibition of unreasonable search and seizure. The privacy afforded by the constitution was that the government did not have the right to violate your private property without probable cause and a specific warrant. Now if you happened to be breaking the law in the privacy of your own home, the government could do nothing about it as long as your actions remained private, because regardless of what the law dictated, without probable cause the government could not enter your home to see if you were, in fact, breaking the law.

The government was free to legislate against private actions, but could not invade your privacy to see if you were transgressing those laws.

The origins of our modern "Right to Privacy" are found in what are known as penumbras of constitutional rights or penumbral rights. A penumbra is a partial shadow between regions of complete darkness and complete illumination, as in an eclipse. In law, penumbra refers to an area in which something exists in a lesser or uncertain degree. Penumbral rights are rights that the Constitution does not specifically mention, but may be implied by the rights that are enumerated. The idea of penumbral rights is not foreign to the Constitution. The 9th Amendment assures that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Though the Supreme Court's power to determine the constitutionality of the laws of the land was never explicitly granted in the Constitution, the Court has exercised the power of judicial review ever since the extremely controversial case of Marbury v. Madison in 1803. Inherent in the power of judicial review is the definition of penumbral rights.

Over years of exercising this power, the Court has established various rights penumbral to explicit constitutional provisions.

In the 1923 case of Meyer v. Nebraska, the Court struck down a Nebraska law that forbade the teaching of foreign languages before the 8th grade. The Court determined that if the parents of the students commissioned an instructor to teach their children German, it was their right as parents. In the ruling they affirmed a penumbral right "to marry, establish a home and bring up children."

Two years later, in the 1925 case of Pierce v. Society of Sisters, the Court declared an Oregon law that forbade parents from sending their children to private schools unconstitutional. The Court identified a penumbral right "of parents and guardians to direct the upbringing and education of children under their control."

Then, in 1965 the coagulation of the so-called "Right to Privacy" began. The Supreme Court was asked to evaluate the constitutionality of a Connecticut law that prohibited the use of contraceptives in Griswold v. Connecticut. The Court ruled that the prohibition was unconstitutional because of a penumbral "right to privacy" that had been previously established in Meyer v. Nebraska, Pierce v. Society of Sisters, and other intervening cases. The penubras of the enumerated constitutional rights created a "private realm of family life which the state cannot enter" without a compelling state interest. This right to privacy, they declared, was included among the liberties guaranteed by the 14th Amendment and the Connecticut statute deprived people of that liberty without due process of law. This penumbral "right to privacy" prevented the government from interfering in the private procreative decisions of a married couple.

The next step in the solidification of today's concept of a "Right to Privacy" came in 1972 when the Supreme Court decided the case of Eisenstadt v. Baird. A Massachusetts law that prohibited the distribution of contraceptives to unmarried people was found unconstitutional based on the Equal Protection clause of the 14th Amendment. The Court declared that the right to privacy in procreative decisions that Griswold v. Connecticut established in 1965 had to be extended to unmarried people because rights belong to individuals, not to couples, and therefore unmarried people may demand equal treatment under the law.

Then, in 1973 the greatest contortion of this new "Right to Privacy" took place in the form of the Supreme Court's infamous Roe v. Wade decision. The Court invalidated a Texas law prohibiting abortion and similar laws of other states. The Court held that the law violated the 14th Amendment in that it violated the woman's "fundamental" right to privacy as established by Griswold, Eisenstadt, among other cases.

Upon the precedents set by Griswold, Eisenstadt, and Roe, the Court struck down a New York state law prohibiting the distribution of contraceptives to people under the age of 16 in the case of Carey v. Population Services Int'l in 1977.

The "Right to Privacy" sat and festered for nine years before it was given a minor setback by the aforementioned Bowers v. Hardwick decision in which the anti-sodomy statues of Georgia were upheld. The Court affirmed that the private conduct at question "is not a fundamental right." They further explained that the Court was not "inclined to take a more expansive view of our authority to discover new fundamental rights embedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. . . . There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental." [Emphasis added] The Court concluded that the law "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." You can see why people who oppose moral legislation would seek the overruling of this case. All of these important assertions are cast aside by Lawrence v. Texas.

In 1992, the Court again advanced the "Right to Privacy" in the case of Planned Parenthood of Southeastern Pa. v. Casey. The decision partially upheld and partially struck down a Pennsylvania law that put certain restrictions on getting an abortion. The Court asserted that "our obligation is to define the liberty of all, not to mandate our own moral code."

Referring to the decisions of past cases including Carey and Griswold, the Court declared, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter" and that "our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

In what Justice Scalia sarcastically calls the "sweet-mystery-of-life passage" of this decision, the Court proclaimed, "Intimate and Personal choices, central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Now we are in 2003 and the Court has taken the accumulation of case law that has mutated from the penumbras of the Constitution into an unwieldy "Right to Privacy" and applied it to overrule Bowers v. Hardwick and to strike down all laws pertaining to private sexual action. The decision heavily relies on, among other cases, Griswold, Eisenstadt, Casey, and Planned Parenthood of Southeastern Pa. v. Casey as precedent and justification for the decision. While they viciously tear down their moral legacy, the Court takes the opportunity to mock the founders with this biting aside: "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known of the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight." <insert evil laugh here>

III. Conclusion

How ironic that the very penumbral rights of parents established by Meyer v. Nebraska, and Pierce v. Society of Sisters, which might have protected the rights of home schoolers, have been hijacked in this way by judge-made constitutional law which seeks to establish new fundamental rights out of the penumbras of the Constitution and enshrine them in the "liberty" of the 14th Amendment.

How ironic that they can find fundamental penumbral rights to privacy that would legalize all forms of depraved behavior, and yet they refuse to see any rights for the unborn lurking in the penumbras of the Constitution.

Meanwhile, the original right to privacy explicitly granted in the 4th Amendment's prohibition of unreasonable search and seizure is threatened with extinction by our need for security against terrorism.

You may dismiss my assessment of the implications of the Lawrence v. Texas decision as alarmist hyperbole. If so, I invite you to review the preceding history of the "Right to Privacy." Ask yourself how the assertion of a parent's penumbral right to control the education of their children in 1920's case law became the leviathan we now know as the Right to Privacy. Perhaps my fears are not so far-fetched.

© J. Max Wilson

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J. Max Wilson

Jonathan Max Wilson lives in Utah with his wife and children... (more)

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