In his majority opinion, Justice Anthony Kennedy offered an impassioned reaffirmation of the principle that a constitutional right to privacy prohibits the government from imposing a single moral viewpoint on all Americans. This idea is a relatively recent addition to constitutional law.
The development of the modern right to privacy began with now forgotten cases from the ’20s in which the court overturned state laws, inspired by the nativist hysteria of World War I, that required all students to attend public schools and prohibited teaching in any language other than English. The court interpreted the 14th Amendment’s guarantee of equal liberty to include the right to “marry, establish a home, bring up children,” and practice religion as one chose, “without interference from the state.”
In the ’60s, the Warren court extended the right to privacy into the most intimate realms of life. Justice William O. Douglas, who wrote the majority opinion that overturned a state law prohibiting the use of contraceptives, argued that despite the absence of the word “privacy” from the Constitution’s text, a protected “zone of privacy” within marriage could be inferred from the “penumbras” of the Bill of Rights and 14th Amendment.
Douglas linked privacy to the sanctity of marriage. But the court soon transformed it into a right of individuals, extending access to birth control to unmarried adults and ultimately to minors. These decisions led directly to Roe v. Wade, which created a constitutional right to terminate a pregnancy. The expansion of the right to privacy halted abruptly in 1986, when the court in Bowers v. Hardwick upheld a Georgia law that criminalized homosexual acts. The decision this week resumed the process by which the right to privacy expands to include more and more Americans.
Kennedy reminds us that every generation of Americans can invoke the language of the Constitution “in their own search for greater freedom.” It is worth remembering, however, that the original Constitution was primarily concerned not with the rights of citizens but with federal-state relations and the rights of property. It was the 14th Amendment, ratified during the Reconstruction era that followed the Civil War, that transformed the Constitution into a vehicle through which members of vulnerable minorities could stake a claim to freedom and seek protection against governmental misconduct.
It is not so much the text of the Constitution as struggles by stigmatized and excluded groups to enjoy freedom as they understand it that has expanded Americans’ rights. The 14th Amendment, which put the principle of equality among citizens into the Constitution, would never have been possible except for the long crusade against slavery. A movement by Catholic and immigrant parents to protect their parochial schools and native languages in the ’20s persuaded the court to lay the foundations for the constitutional right to privacy.
The second wave of feminism in the ’60s, which insisted that sexual relations and conditions of marriage are as much “political” questions as war, civil rights, and class oppression, paved the way to Roe v. Wade. The scope and militancy of the movement for gay rights over the past generation changed society’s view of homosexuality, expanded the idea of freedom to include sexual orientation, and made the Supreme Court ruling possible. The decision reminds us that while conservatives have enjoyed striking success in their economic and military agenda, they have found it impossible to reverse the cultural revolution unleashed by the ’60s.
In celebrating the court’s ruling, we should also pay tribute to the members of the Reconstruction Congress, who repudiated the heritage of slavery and racism to write into the Constitution the principle of equal rights for all Americans, and to the feminist and gay movements of the past 30 years, which have given new meaning to American freedom.
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