PHIL 168: Philosophy of Law UCSD; Fall 2015 Professor David O. Brink Handout #4: Judicial Review and Substantive Due Process

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1 Draft of PHIL 168: Philosophy of Law UCSD; Fall 2015 Professor David O. Brink Handout #4: Judicial Review and Substantive Due Process JUDICIAL REVIEW IN A CONSTITUTIONAL DEMOCRACY Judicial review is the power of the judiciary to declare legislation unconstitutional. Within a constitutional democracy, such as our own, the constitution performs three main tasks. 1. Separation of Powers. It creates a federal government, specifying its powers and dividing them among the three branches of government (legislative, judicial, and executive). 2. Federalism. It allocates power, at least by implication, between federal and local government. 3. Individual Rights. It recognizes certain rights of individuals against both local and federal government. Judicial review is the power of the judiciary to determine if governmental action conforms to these constitutional powers and constraints. The rationale at work here is an argument from institutional role that is also advanced by Alexander Hamilton in Federalist #78 and by Chief Justice Marshall in Marbury v. Madison (1803). 1. It is the institutional role of the judiciary to interpret and apply the law. 2. The Constitution is the supreme law of our legal system. 3. Hence, it is the institutional role of the judiciary to interpret and apply the Constitution. 4. Hence, it is the institutional role of the judiciary to declare legislation unconstitutional if it determines that it conflicts with the Constitution. This rationale for judicial review fits with a common understanding of the separation of powers. Roughly, the legislature is supposed to make law; the judiciary is supposed to interpret and apply the law; and the executive is supposed to enforce the law as interpreted by the judiciary. This division of labor has a democratic rationale. The legislature, rather than the judiciary, should make law, because we want our law makers to be democratically accountable, as, in principle, legislators are and (federal and some state) judges are not. The institutional rationale for judicial review respects this division of labor. It instructs the judiciary to interpret the Constitution and measure legislation against this interpretation (interpretive review); it does not instruct the judiciary to decide if legislation is wise (non- interpretive review). The debates that interest us focus on the exercise of judicial review to protect individual rights. Some parties to the debate are impressed by the so- called counter- majoritarian worry. In Democracy and Distrust John Hart Ely frames the worry this way. Thus the central function, and it is at the same time the central problem, of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people's elected representatives that they cannot govern as they'd like [4-5]. But notice that this is really a quite general worry about judicial review, and it seems to misunderstand the institutional rationale for judicial review and the nature of our democratic commitments. Whereas we want our laws to be enacted by a majority, we have not accepted purely majoritarian politics. Concerns about the tyranny of the majority led framers of the Constitution to adopt constraints on what the community can do, even with democratic support. The resulting

2 2 form of democracy is not pure majority rule, but rather a constitutionally limited democracy. Whereas judicial review may be at odds with pure majoritarianism, it seems to be an essential part of a constitutional democracy. Because it is the institutional role of the judiciary, within our separation of powers, to interpret and apply the law, and because ours is a constitutionally limited democracy, it is the Court s job to see if the legislature has heeded its constitutional constraints, especially those protecting individual rights. Of course, this defense of judicial review doesn t mean that the Court s interpretation of constitutional constraints on majority rule has always been good interpretation, but it does mean that there is nothing suspect about judicial review as such. DEBATES ABOUT JUDICIAL REVIEW There is a popular debate between judicial restraint and judicial activism. People who frame the debate this way often (but not always) condemn judicial activism and praise judicial restraint. But it s often unclear how activism and constraint are being understood. Here are some possibilities. (a) Activism is a simple pejorative used to express disagreement with a particular exercise of judicial review. (b) Activism consists in the exercise of judicial review to invalidate democratically enacted legislation. (c) Activism consists in reliance on substantive and potentially controversial moral and political principle in the exercise of judicial review to invalidate democratically enacted legislation. Though the pejorative sense (a) often seems to be at work in public rhetoric over judicial activism/restraint, this sense is spectacularly unhelpful. This is because critics of judicial activism want to criticize particular exercises of judicial review because they are activist. But the pejorative sense of activism is just another way of stating their conclusion, not a premise in an argument for that conclusion. Recognizing this, some commentators appeal to the anti- majoritarian interpretation of activism. Notice that, unless we are skeptics about judicial review as such, there is no reason to think that activism in this sense is bad. Notice also that the Rhenquist and Roberts Courts, which have thought of themselves as restrained, are among the most activist Courts in Supreme Court history, in this sense of activism/restraint. This may provide some reason to focus on our third sense of activism. This version of the public debate about restraint/activism parallels an older scholarly debate between interpretive and non- interpretive review over the record of the Warren and Burger Courts in cases in which judicial review was exercised to protect personal and civil rights. As we will see, Ely frames the debate in this way in Democracy and Distrust. The Court exercises interpretive review insofar as it invalidates legislation based on its interpretation of the Constitution; it exercises non- interpretive review insofar as it invalidates legislation as embodying unsound policy or political morality. Some think that the Court exercises non- interpretive review whenever it invalidates legislation based on controversial substantive claims about individual rights. THE SOURCES OF INDIVIDUAL RIGHTS There are several potential sources of substantive individual rights in the Constitution. In the Bill of Rights, there are not only specifically enumerated rights but also the Ninth Amendment recognition of additional rights, not recognized in the first eight amendments, retained by the people. As Ely notes, this is the overwhelming natural reading of the point of the Ninth

3 3 Amendment. But, with very few exceptions, the Court has been unwilling to recognize the Ninth Amendment as an essential source of individual rights. Another natural source of substantive individual rights would have been the privileges and immunities clause of the Fourteenth Amendment, which provides that No State shall make or enforce any law which shall abridge the privileges or immunities or citizens of the United States. However, the potential of that clause as a source of individual rights was effectively denied in The Slaughter- House Cases (1873). 1 The Louisiana legislature had granted a monopoly to one firm in the New Orleans area to slaughter livestock. Other butchers challenged the legislation under the privileges and immunities clause. In a 5-4 decision, the majority opinion, written by Justice Miller, upheld the legislative monopoly arguing that the privileges and immunities clause recognizes only that states may not abridge the (enumerated) rights of federal citizenship. On this reading, the clause does not recognize additional rights inherent in state citizenship that the states are prohibited from abridging. Miller s opinion rejected this alternative reading of the clause as a source of individual rights against state action in part on the ground that this reading would require the Court to review all manner of challenges to state legislation. SUBSTANTIVE DUE PROCESS With the rejection of these alternative sources of substantive rights, the Court eventually turned to the due process clause as a source of substantive rights. Debates about the record of judicial review have often focused on the Court's interpretation of the due process clause of the Fifth and Fourteenth Amendments. We get a better sense of what is at stake in these debates by looking at debates over substantive due process and some of the history of that doctrine. The due process clause says that no person shall be "deprived of life, liberty, or property without due process of law;" the Fifth Amendment makes due process applicable to the federal government, and the Fourteenth Amendment makes due process applicable to state and local government. The general question is what individual liberties or, more generally, rights due process protects. "Substantive due process" often refers to the Court's interpretation of due process early in the last century under which it invalidated legislation that interfered with liberty of contract. For obvious reasons (though ones that will become more obvious later) we might call this interpretation of due process economic substantive due process. BACKGROUND TO LOCHNER Industrial development in the late nineteenth century brought significant changes in social and economic life. Improved technology and industrialization made ownership of the means of production (and not simply one's own labor power) economically important. Moreover, the operation of a market, especially in production goods (and not simply consumer goods), with unrestricted private property rights (including bequest) tends over time to produce fairly large concentrations of private property rights. In this way, there will emerge classes of property owners (i.e. those who have property rights in the means of production) and wage- laborers (i.e. those who have property rights only in their labor power). These two classes will then negotiate terms of economic interaction. But the inequalities in private property rights will tend to improve the bargaining position of property owners in relation to laborers. The difference in bargaining position will mean that laborers are often obliged to accept more onerous terms of cooperation than they would have accepted in a situation of equality of resources and bargaining position. More onerous terms of cooperation can be detrimental to the laborers and, because they result from uneven bargaining position, create a fairness worry. But hardships for labor in a labor contract can also affect the quality of the goods produced. Where the goods in question are ones in which the public has interests in quality- control (e.g. food stuffs), there is a public welfare objection to such 1 The Slaughter- House Cases, 83 U.S. (16 Wall.) 36 (1873).

4 4 contracts as well. It was in part to address these effects of concentrations of private property rights on laborers and the consuming public that in the late nineteenth century and early twentieth century many state legislatures began enacting various kinds of industrial regulation. Earlier in the nineteenth century it had generally been held that private property can be regulated in certain ways provided that it is "affected with a public interest" - - this was the so- called Munn test. 2 But property owners perceived that many such regulations were restricting their freedom to contract and eroding the value of their property and so they began to challenge the constitutionality of these regulations on due process grounds. (Interestingly, their principal claim was that these regulations deprived them of their liberty, not their property, without due process.) Beginning in the late 1880s the Court slowly began to heed this due process argument and began to invalidate economic legislation that infringed liberty of contract, especially labor legislation, regulation of prices, and restrictions on entry into business. This doctrine of economic substantive due process reached its zenith in Lochner v. New York (1905) and continued into the mid- 1930s (during which time the Court invalidated approximately 200 bits of state legislation on economic substantive due process grounds). 3 LOCHNER AND ECONOMIC SUBSTANTIVE DUE PROCESS In Lochner the Court held unconstitutional New York legislation regulating the maximum hours that bakery employees could work - - not more than 10 hours per day and 60 hours per week. The main questions were: If so, If so, (1) Is liberty of contract protected by due process? (2) Is the state legislation in pursuit of a legitimate interest or objective? (3) Are the legislative means adopted pursuant to this end sufficiently appropriate? A Court majority held that liberty of contract is a liberty protected by due process - - Yes to (1). To see if employers were deprived of this liberty without due process of law, the Court asked whether there was a legitimate state goal underlying the legislation [(2)]. The Court considered two possible state objectives: (a) the labor- law goal of redressing the unequal bargaining position of labor and capital, and (b) the health and safety goal of providing quality- control of bakery goods. The Court rejected (a) as an illegitimate goal - - No to (2a) - - but accepted (b) as a legitimate goal - - Yes to (2b). However, it argued that the regulations in the statute were not obviously necessary to, or the least restrictive means to, achieve this goal - - No to (3). Regulating employee hours is not a very direct way of regulating the quality of baked goods; the legislature could have enforced quality control (e.g. minimum donut standards) without regulating working hours. Dissent might have focused on either the affirmation of (1) or the denial of (2a). Unless all liberty is protected by due process, it's not clear why liberty of contract should be. Nor can all liberty be given absolute protection. Familiar provisions of criminal and civil law restrict liberty in order to 2 Munn v. Illinois, 94 U.S. 113 (1877). 3 However, the Court's endorsement of economic substantive due process during this period should not be exaggerated. The Court did sustain a number of regulations during this period; and even when it invalidated legislation on economic substantive due process grounds, the Court, as in Lochner, was often divided. Holmes, Brandeis, Stone, Cardozo, and Hughes (CJ) dissented regularly in economic substantive due process cases.

5 5 prevent various forms of harm and nuisance. In other words, if (1) is affirmed automatically, then it cannot be clear that the protection due process affords liberty of contract is absolute. How stringent the protection it receives will depend upon our interpretation of the requirements embodied in (2) and (3), and this may vary with different liberties. Nor is it clear why (2a) should be denied. Why is the objective of ensuring that contracts are negotiated on fair terms not a legitimate state objective? Dissent centered on (3). It was agreed on all hands that protection of public health is a legitimate state goal. The dissent - - Harlan (joined by White and Day) and Holmes - - rejected the majority claim that the statute did not pursue this goal in the appropriate way. In particular, they rejected the Court's "second- guessing" of the legislative choice of means, claiming that the legislative means need be only reasonably calculated to secure the state end. As Harlan wrote [I]n determining the question of the power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health... But when this inquiry is entered upon I find it impossible, in view of common experience, to say that there is here no real or substantial relation between the means employed by the State and the end sought to be accomplished by its legislation... After citing some evidence about the working conditions and health in the bakery trade tending to show that the working conditions make long working hours hazardous to the employees health, Harlan concluded It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. Though the distinction between different standards of review was only formulated clearly at a later point, we can say, with the benefit of hindsight, that the dissent was employing something like what is now known as rational basis review. RBR: According to rational basis review, legislation is constitutionally valid iff it pursues a legitimate governmental interest in a reasonable manner. This comparatively deferential standard of review can be contrasted with strict scrutiny. SS: According to strict scrutiny, legislation is constitutionally valid iff it pursues a compelling state interest in the least restrictive manner possible. In retrospect, we can see the majority in Lochner as employing a standard of review comparable to strict scrutiny. THE DECLINE OF ECONOMIC SUBSTANTIVE DUE PROCESS For a variety of reasons, by the mid- 1930s the Court was ready to rethink and abandon economic substantive due process. Economic substantive due process began to seem economically and politically bankrupt. To many, it seemed (a) that it was precisely the sort of laissez- faire policies that economic substantive due process encouraged that had led to the crash and the subsequent economic depression (the Great Depression), and (b) that economic substantive due process was hampering New Deal efforts to respond to the Depression. In fact, it was (b) that lead to Roosevelt's famous attempt to "pack the Court" by adding new justices for every sitting justice over 70, up to a limit of fifteen which, according to some, prompted the change in the Court's attitude, sometimes referred to as the "switch in time that saved nine." The change in outlook was also facilitated by a

6 6 change in the Court's composition. The dissent view of economic legislation won out - - the Court came to apply rational basis review. According to rational basis review, the state need only have a legitimate interest, and the Court will not in general second- guess the reasonableness of the legislative means (though it will find a statute unconstitutional even under rational basis review if the state's means are obviously irrelevant to, or patently frustrate, the state's end). In Nebbia v. New York 4 (1934) the Court upheld a regulation of the New York Milk Control Board fixing retail milk prices in order to secure the stability of the milk industry. The Court held that liberty of contract is protected by due process but is not absolute and must yield to the public interest. It concluded that the due process clauses... do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guarantee of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be obtained. [The] Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases... In West Coast Hotel Co. v. Parrish 5 (1937) the Court upheld a minimum wage law for women. In the process it recognized the legitimacy of the state's objective in monitoring the fairness of contracts that the Court had denied in Lochner. There is an additional and compelling consideration which recent economic experience has brought into a strong light. The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. Finally, in Williamson v. Lee Optical of Oklahoma 6 (1955) the Court clearly relied on rational basis review to uphold an Oklahoma law that made it illegal for an optician to fit or duplicate lenses without a prescription from an ophthalmologist or optometrist. The Court noted that, because many opticians could in fact reliably read a prescription off of a broken lens, the statute was not a perfect fit with the state's goal of protecting the health and welfare of the consuming public, but denied that such a fit was necessary. The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, and not the courts, to balance the advantages and disadvantages of the new requirement.... [T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. [The] day is gone when this Court uses the Due Process Clause [to] strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. 4 Nebbia v. New York, 291 US 502 (1934). 5 West Coast Hotel v. Parrish, 300 US 379 (1937). 6 Williamson v. Lee Optical, 348 US 483 (1955).

7 7 WHAT'S WRONG WITH LOCHNER Lochner and economic substantive due process are now generally regarded as embarrassments, except perhaps by a minority of libertarian and neo- conservative scholars. Though the Court's rejection of economic substantive due process and its acceptance of rational basis review as the test for whether economic regulations satisfy due process in these and other cases is clear, the exact grounds for these developments is not clear. There seem to be two main possible grounds for the Court's rejection of economic substantive due process, each of which finds some echo in these opinions. (1) According to the first view, what was wrong with Lochner was simply substantive due process. Due process requires only rational basis review, regardless of the kind of regulation involved. The Court should simply not be in the business of telling the legislature what it can or can't do. As Holmes wrote in his dissent in Lochner I think that the word liberty [sic] in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion... And Justice Roberts in Nebbia maintained that due process in general requires only rational basis review, because reasonable pursuit of the general welfare is always a sufficient justification of regulations that infringe liberties. (2) The alternative view distinguishes between the legitimacy of economic substantive due process and other kinds of substantive due process. On this view, due process does require that interference with some liberties be subject to more stringent scrutiny than rational basis review. What was wrong with Lochner and economic substantive due process, according to this view, is that economic liberties, such as freedom of contract, are not among the more fundamental liberties deserving special protection. Even Holmes's dissent allows that there is no perversion of due process in invalidating democratically enacted legislation if... it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. On this view, even if economic legislation requires only rational basis review, other, more fundamental liberties might have to satisfy a more stringent test, such as strict scrutiny. NONECONOMIC, SUBSTANTIVE DUE PROCESS It is important to decide between these two views of why Lochner and economic substantive due process were wrong, because while Lochner and economic substantive due process are now generally regarded as embarrassments, substantive due process is not. The Court has construed due process as protecting various fundamental noneconomic, personal and political liberties. The Court has taken the due process clause of the Fourteenth Amendment to represent the selective incorporation of key provisions in the Bill of Rights (the first nine amendments) so as to make these provisions, applicable against the federal government, applicable against state government as well. For instance, the Court has incorporated the right of freedom of speech and religion, right against unreasonable search and seizure, right to counsel, right against self- incrimination, right to compensation for property appropriated by the state, and right against cruel and unusual punishment into the due process clause of the Fourteenth Amendment. And, as Griswold reflects, Fourteenth Amendment due process incorporates not only enumerated provisions in the Bill of Rights, but also non- enumerated provisions, such as a right to privacy.

8 8 The general test for whether some interest or value is protected by due process is whether the value is fundamental. This test was invoked during economic substantive due process. In Meyer v. Nebraska 7 (1923) the Court articulated the test in these terms. [The liberty guaranteed by the due process clause of the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.... [That] the State may do much [to] improve the quality of its citizens [is] clear; but the individual has certain fundamental rights which must be respected. Cardozo articulates this test, in the post- Lochner era, in Palko v. Connecticut 8 (1937) in explaining the principle underlying selective incorporation. In these and other situations [cases of incorporation] immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and, thus, through the Fourteenth Amendment, become valid as against the states. [The] process of absorption has had its source in the belief that neither liberty nor justice would exist if they [the key, incorporated provisions in the Bill of Rights] were sacrificed. Where the Court has found that a liberty is fundamental in this sense, it has in general subjected the legislation restricting this liberty to strict scrutiny, not rational basis review. Modern substantive due process, therefore, presupposes the second view of what was wrong with Lochner and economic substantive due process; they were wrong because they gave special protection to the wrong liberties and interests. But to say that modern substantive due process presupposes the second view is not (yet) to say that it is defensible. There are two related challenges for substantive due process. One worry is that the doctrine of substantive due process is counter- majoritarian and undemocratic. We addressed this worry, at least in part, in our defense of the need for interpretive judicial review that enforces constitutionally protected individual rights. The Court can t hope to interpret the nature and scope of these rights without appealing to potentially controversial judgments of political morality. In particular, we can t recognize due process as a constraint on democratic legislation and accept a purely procedural account of due process as requiring nothing more than majoritarian processes. We must reject Holmes suggestion that due process cannot prevent the natural outcome of a dominant opinion. But accepting the coherence of substantive due process does not settle important questions about its scope. The Court needs a principled basis for distinguishing some liberties or interests as more fundamental than others. This is the central task of substantive due process jurisprudence. GRISWOLD Perhaps the most controversial aspect of substantive due process review is the recognition of a constitutional right to privacy, in significant part because privacy is a non- enumerated right, nowhere explicitly mentioned in the constitution. We getter a better picture of substantive due process review by taking a selective look at privacy. 7 Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating a state law prohibiting the teaching of any modern language other than English in any private or public grammar school). 8 Palko v. Connecticut, 302 US 319 (1937).

9 9 Griswold v. Connecticut 9 (1965) invalidated a Connecticut statute that regulated the sale and distribution of birth control devices on the ground that this violates a married couple s constitutional right of privacy. A right to privacy is, as Douglas concedes, nowhere enumerated in the Constitution. So Griswold cannot be defended by appeal to the plain meaning of explicit constitutional language. Equally clearly, the framers did not (specifically) intend the Bill of Rights to preclude birth control legislation. But then Griswold cannot be defended by appeal the specific intentions of the framers. And Douglas s defense of a right to privacy as one found in the penumbras of disparate rights in the Bill of Rights might sound like an exercise in non- interpretive review. However, it is not unreasonable to suppose, as Douglas does, that a value of privacy or personal autonomy is one of the values that provide a plausible rationale for the otherwise diverse cluster of personal liberties recognized in the Bill of Rights - - especially the First Amendment guarantee of free speech and association, the Third Amendment guarantee of a home owner's right not to have his house invaded during peace time without his consent, the Fourth Amendment guarantee against unreasonable search and seizure, the Fifth Amendment guarantee of due process, and the Ninth Amendment guarantee of non- enumerated rights retained by the people. It is an interesting and important question, which Douglas does not address, what the scope of such a right to privacy should be. Answering that question will be important to see what other privacy decision Griswold might or might not be a good precedent for. But whatever its exact scope, it is not implausible to suppose that a principle of personal autonomy broad enough to rationalize these disparate personal liberties in the Bill of Rights would extend to decisions about intimate association and reproduction within traditional family structures. BOWERS Griswold justifies a right to privacy or personal autonomy as a value that would rationalize otherwise diverse liberties recognized in the Bill of Rights, in particular, the First Amendment guarantee of free speech and association, the Third Amendment guarantee of a home owner's right not to have his house invaded during peace time without his consent, the Fourth Amendment guarantee against unreasonable search and seizure, the Fifth Amendment guarantee of due process, and the Ninth Amendment guarantee of non- enumerated rights retained by the people. If a married couple really has a right to privacy that covers such sexual and reproductive decisions, then this implies that the state may not interfere with such decisions in pursuit of majority preferences. Recognition of a right to privacy, therefore, requires strict scrutiny. In Bowers v. Hardwick 10 the Court concluded that the right to privacy does not extend to consensual homosexual practices, even in the privacy of one's home. As such, it raises important questions about the scope of a right to privacy. The majority appeals to the line of privacy cases beginning with Griswold and notes that most of these cases protect personal liberty in decisions involving "the family, marriage, and reproduction" and claims that "no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated." But this begs the question about whether past privacy decisions exhaust the scope of a right to privacy. If, as Griswold claims, the a right to privacy is justified by virtue of rationalizing diverse liberties in the Bill of Rights, then its scope cannot sensibly be limited to matters of traditional family relationships and reproduction, because the specific guarantees in these amendments contain no such restrictions. A plausible claim about the scope of a right to privacy is that it is roughly the freedom to make choices and pursue plans and associations central to one's conception of oneself provided that these freedoms are not exercised in ways that threaten imminent harm to comparably important interests of others. Hardwick's choice and pursuit of consensual 9 Griswold v. Connecticut, 381 U.S. 479 (1965). 10 Bowers v. Hardwick, 478 U.S. 186 (1986).

10 10 homosexual relationships in the privacy of his own home arguably falls within the scope of this right to privacy. If so, then the Georgia statute should be subject to strict scrutiny. Does Georgia have any compelling state interest in regulating consensual sexual relations between adults in the privacy of the home? The majority appealed to the heterosexual tradition that is "deeply rooted in this Nation's history and tradition" and the state's interest in upholding these moral traditions (see White's majority opinion and Burger's concurring opinion). But this fails to recognize a right to privacy or self- determination, as Stevens points out. Is the preservation of traditional values even a legitimate state interest? The state must defend its interests in secular ways. As Blackmun points out, whereas this can be done with many interests underlying the criminal law, it's not clear this can be done with the alleged wrongs or harms of private consensual homosexual relations. The demand for secular justifications of public policy is articulated in the anti- establishment clause of the First Amendment. But it is a special case of a more general demand of public justification, according to which we must be able to justify our conduct to others - - especially if we are imposing burdens on them - - in terms that we might reasonably expect them to be able to accept. If the main basis for claiming that homosexuality is immoral lies in certain religious doctrines, acceptable only on the basis of faith, rather than reason, then the filter of public justification promises to screen- off the primary justifications of this sort of moral legislation. It's worth noting that White is mistaken in claiming that opposition to Bowers must reject moral legislation per se. The criminal law can and does reflect moral claims about the wrongness of murder, rape, assault, and theft. But these laws aim to prevent harm; they are not merely moralistic. As such, these restrictions on liberty can be given a secular justification. LAWRENCE Lawrence v. Texas 11 presented a case whose facts were very much like Bowers - - with the significant difference that the Texas statute prohibited only homosexual sodomy, not sodomy as such. A majority in Lawrence (Kennedy, Stevens, Souter, Ginsberg, and Breyer) struck down the Texas statute and overruled Bowers in the process in an opinion authored by Kennedy. O'Connor joined in the decision, but filed a separate opinion that did not overrule Bowers. She thought that a prohibition on sodomy as such, as in Bowers, was consistent with Due Process analysis. She thought the Texas statute should be struck down on equal protection grounds, because in targeting only homosexual sodomy it discriminated against homosexuals in an unacceptable way. In some ways, Kennedy's majority opinion in Lawrence simply accepts the principles underlying Steven's dissent in Bowers. However, Kennedy s opinion introduces other considerations too. Kennedy's opinion appeals to several considerations. 1. The majority claim in Bowers that the prohibition on homosexual sodomy has a long historical tradition is a dubious historical claim. 2. The principles on which Bowers was decided have been extensively criticized domestically and are out of step with practices in other Western democracies. 3. There has been no important societal reliance on Bowers which would argue against overturning Bowers if there were otherwise good reasons to do so. 4. Bowers was wrongly decided; homosexual association is within the scope of the right to privacy, and the statute furthers no compelling/legitimate governmental interest. 11 Lawrence v. Texas, 539 U.S. 558 (2003).

11 11 Kennedy's opinion is puzzling in one way. He suggests that the historical and social claims embodied in (1) and (2) are not essential to the ruling (at 519), yet he devotes the lion's share of his opinion to such issues, reserving a few paragraphs to (4). Scalia raises some good questions about the plausibility of Kennedy's alternative historical analysis and about the relevance of Kennedy's historical and sociological claims. If there is a protected privacy right to homosexual association, then it must trump any appeal to majority preferences or maintaining traditional mores. To show that miscegenation laws violate the right to equal protection (Loving v. Virgina), there was no need to dispute the history of hostility to mixed race marriages or to show that enlightened people here and abroad disapprove of miscegenation laws. So the really important issue is (4). Issues (1) and (2) only confuse the issue. (3) makes the case for overruling Bowers easier. But the central issue is (4). Here, Kennedy accepts the arguments of Stevens and Blackmun in Bowers about the need to interpret the scope of the right to privacy in such a way that it recognizes an autonomy interest in determining one's ideals, commitments, and forms of association provided that these do not harm the comparable interests of others (at 525). This involves recognition of a privacy interest in determining one's form of intimate association. He then claims that traditional mores and majority preferences cannot be a sufficient reason for upholding a law that restricts this privacy right. Scalia complains that the majority in Lawrence is not willing to recognize explicitly a "constitutional right to homosexual sodomy" or to insist that the appropriate standard of review is strict scrutiny (at 531, 535) and that its implication that the Texas statute cannot survive rational basis review is without merit. Moreover, he criticizes as overbroad the majority's conception of the scope of the right to privacy as involving autonomy (at 532). Such a conception of privacy would be incompatible with central provisions of the criminal law that rest on moral assumptions (at 533). It's perhaps true that Kennedy could have been clearer about some of these matters, but it's not hard to see how he should respond to Scalia's dissent. (a) There is not a fundamental constitutional right to homosexual sodomy any more or less than there is a fundamental constitutional right to be a member of the Boy Scouts. Perhaps neither would appear on a short list of fundamental human rights. However, in both cases, Kennedy believes, there is such a right that is part of or derived from a more general and perhaps more fundamental right. The right to join the Boy Scouts is derivative from a constitutional right of association. The right to engage in private consensual homosexual sodomy is derivative from the constitutional right to privacy, which Kennedy plausibly construes as requiring autonomy in matters of intimate association that are private, consensual, and do not harm others. (b) It follows that strict scrutiny is the standard of review appropriate for the Texas statute. Kennedy insists that traditional mores against homosexuality, even if they were historically robust, would not be a sufficient basis for state action. He clearly believes that this rationale would not satisfy strict scrutiny. He may also believe that it doesn't even amount to a legitimate state interest, inasmuch as there seems to be no secularly acceptable justification for the restriction on homosexual association, for instance, that can appeal to the harm principle. If there is no legitimate state interest, then a fortiori there is no compelling state interest. (c) It s true that privacy cannot be understood to involve an absolutely general conception of autonomy that would preclude all sorts of moral legislation, including central provisions of the criminal law. But, as Stevens points out in his dissent in Bowers, central provisions of the criminal law prohibitions on murder, rape, assault, theft, and fraud can be justified in secularly acceptable ways typically by appeal to harm prevention. The sort of legislation of sexual morality at stake here cannot be so justified and infringes in significant ways liberties of intimate association that would seem to be central, rather than peripheral, to autonomy. Bans on public sodomy leave important private avenues for free intimate expression (though, of course, a ban on public sodomy that was limited to homosexual sodomy would run afoul of equal protection concerns). But a ban

12 12 on homosexual sodomy as such leaves no alternative outlets for these important expressive interests. OBERGEFELL Obergefell v. Hodges (2015) addresses the question of whether same- sex couples have a constitutional right to marry that is abridged by state legislation restricting marriage to heterosexual couples. The Court defends a right to marriage that applies to same- sex couples under the Due Process and Equal Protection clauses of the Fourteenth Amendment and further claims that states must honor same- sex marriages performed in other states. Kennedy writes the majority opinion, which passionately defends the importance of marriage and the right of same- sex couples to enjoy the benefits of that institution. The penultimate paragraph of his opinion is representative. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. As some of the petitioners in this case demonstrate, a marriage embodies a love that may endure even past death. It would misunderstand these men and women to say that they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right [at 28]. Kennedy s opinion is passionate and even eloquent, but it is surprisingly short on constitutional analysis. He does not make clear whether the primary rationale for the decision is a due process or equal protection claim, even though these two rationales have different implications. And he doesn t conduct the analysis in terms of strict scrutiny that either rationale requires. Consider the due process issue. Lawrence recognized a right to intimate association as part of the right to privacy that includes protection for consensual adult homosexual sodomy. But that right does not itself extend to a right to marriage. Meyer v. Nebraska (1923) did recognize a right to marriage under due process analysis (see above), but that was part of Lochner- era substantive due process and had not been subsequently affirmed. Loving v. Virginia (1967) invalidated a Virginia miscegenation statute, upholding the right of interracial couples to marry. But that decision was based on equal protection analysis. If the government is going to allow couples of the same race to marry, then it must also allow interracial couples to marry. Loving is a good precedent for Obergefell. If heterosexual couples have a right to marry, then equal protection requires extending that right to same- sex couples. So there is a good equal protection argument for invalidating laws restricting marriage to heterosexual couples. Whether there is also a due process issue seems to depend on whether there is a fundamental interest in getting married, over and above the right to intimate association, guaranteed by Lawrence. Kennedy talks about the importance of marriage, which is perhaps relevant to whether that interest is fundamental. But much of what he says about the value of marriage really applies to the value of committed association. If there is a fundamental interest in marriage, over and above the value of association, that would seem to be something that could fund a compelling state interest in favoring marriage over other forms of association, for instance, by providing tax benefits to married couples that are not extended to unmarried couples and employers providing greater health care benefits to married employees than to unmarried couples. On the one hand, the state already discriminates in favor of married couples in these ways, so perhaps we can accept the consequences of recognizing a fundamental interest in marriage. On the other hand, we might be troubled by the permissibility of the state discriminating among couples on the basis of the type of association they choose to enter, whether it takes the form of marriage or not. Insofar as we find this sort of discrimination

13 troubling, we might worry about endorsing the due process argument, which recognizes a fundamental right to marry. However we justify the result in Obergefell, whether on due process or equal protection grounds, it seems the Court cannot reach that result without applying strict scrutiny. Whether laws restricting marriage to heterosexual couples are constitutional depends on whether they can survive strict scrutiny. Does the state have a compelling state interest in restricting marriage to heterosexual couples that it pursues in the least restrictive manner possible? Presumably the answer is No, because the state has no legitimate, much less compelling, interest in restricting marriage to heterosexual couples. That may reflect a traditional conception of marriage, but exclusionary rationales are not made legitimate or compelling by being longstanding. If they have no secular or public justification, then the laws will not pass rational basis review, much less strict scrutiny. 13