The Supreme Court on Sex, Obscenity, and Marriage (Part II)

Griswold was a director of a Planned Parenthood clinic and was arrested and convicted for handing out conception to women at the birth control clinic. In 1961, the Supreme Court refused to hear a similar case, Poe v. Ullman since the plaintiffs had not been charged or faced prosecution. Griswold and Planned Parenthood actively sought a case to challenge the contraception law. Nobody would have ever predicted the paramount significance of this case. The imaginary (substantive) right to privacy lead to many more rights not found in the Constitution: the right of birth control for unmarried couples (Eisenstadt v. Baird); the right of abortion for women in Roe v. Wade in 1973; and the right to homosexual sodomy (Lawrence v. Texas) in 2003. All of these rights according to the Court are guaranteed through the imaginative and ambiguous right to privacy. Privacy is a very broad subject, and the Court did nothing to set any definition or standards for privacy as our Founding Fathers did in the Bill of Rights. Griswold may be the most influential decision in the Court’s history. Yet, it was a case over a dying and hardly used statute and the majority opinion could not even agree on how to read its substantive due process (imaginary) right to privacy into the Constitution. If the right of privacy is in the constitution, one would imagine that the seven majority Justices could agree upon a standard or theory as to how to apply the substantive due process principle to guarantee the right of privacy.

The Loving v. Virginia decision in 1967 invalidated laws prohibiting interracial marriages based on both the due process and equal protection clauses of the Fourteenth Amendment. The Loving decision was precisely the reason the Fourteenth Amendment was ratified: To protect a group of people (in this case African-Americans) from inhumane treatment and or discriminatory laws and statutes. This decision was sound.

The 1972 case Eisenstadt v. Baird established the right for unmarried people to possess contraception striking down a Massachusetts statute based on the equal protection clause of the Fourteenth Amendment. Justice William Brennan wrote the majority opinion citing that the Massachusetts law lacked a rational basis that the law was used to protect the public health. He also cited Griswold v. Connecticut that since States could no longer withhold contraception to married couples therefore, it follows that States cannot withhold contraception to unmarried persons (also based on the right to privacy). Oddly, Brennan’s ruling conceded that states may prohibit sex outside of marriage. If that is true, then why would unmarried people need contraception? Wouldn’t providing single people contraception influence them to break the law by having sex? If prohibiting sex for unmarried people does not violate the equal protection clause then it would follow that denying unmarried people contraception should not violate the equal protection clause either. Brennan’s statement: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” has led Eisenstadt to be cited in well over 50 Supreme Court cases. Of course, the Eisenstadt precedent resulted in the Court overruling a New York statute in Carey v. Population Service International prohibiting contraception distribution for minors under 16. While deciding these cases the Court never considered questions such as would the availability of contraception lead to more or less promiscuity? If prosecuting sex outside of marriage is legal, then why isn’t denying contraception illegal? Why are only State government laws intrusive to individuals but not Supreme Court rulings? In fact, in Hunter v. Pittsburgh the Court ruled in 1906 that State laws trump municipality laws regardless to how good or bad they may be. In other words, bad State laws can still be constitutional.

To better understand the evil nature of the Court (government intrusion) we can turn to two of the most horrific decisions in the history of the Supreme Court: Buck v. Bell in 1927 and Roe v. Wade in 1973. In Buck v. Bell, the Court upheld a Virginia law for the compulsory sterilization of “intellectually disabled” persons by a vote of 8-1. The Court said the law did not violate the due process clause of the Fourteenth Amendment. This is crazy! If there was ever a time to use the due process clause of the Fourteenth Amendment, Buck v. Bell was it! This law was not only discriminatory but it was inhumane treatment toward a specific group of people. The Fourteenth Amendment was written to not only end discrimination but to stop the barbaric inhumane treatment toward a race of people: African-Americans. Similarly, in 1944, the evil Court upheld a FDR executive action to intern Japanese Americans (Korematsu v. United States). This was no better behavior than Hitler interning Jews in concentration camps. This was not only discrimination but barbaric inhumane treatment toward a specific race of people (German-Americans did not face the same fate during WWII) covered specifically by the due process clause of the Fourteenth Amendment. The lone dissenting justice in the Buck case (Pierce Butler) did not write a dissenting viewpoint (another travesty of the case). In the majority opinion, the so called “Great” Justice Oliver Wendell Holmes wrote “three generations of imbeciles are enough” about the Buck family. Hence, Carrie Buck was sterilized, but she did lead a productive life. The goal of sterilization was to create an “optimum gene pool” based on the theories of eugenicist Harry Laughlin. Hitler and Nazi Germany used Laughlin’s models to “prevent diseased offspring”. At the Nuremberg war crimes trials after WWII, Nazi doctors on trial quoted Holmes’s majority opinion in their defense. The implications of the Buck decision not only created more sterilization laws, but they were enforced more strictly (few states had statutes before Buck and they were barely enforced). The 1942 case Skinner v. Oklahoma did not overturn Buck but it discouraged most sterilizations (Buck has never been overturned, nor has Korematsu). After Skinner states began to remove sterilization laws from their books and sterilizations finally ended in the early 1960s (no thanks to the Supreme Court). One may ask, if a state can legally sterilize a person, then what is the big deal if two states have a dumb law such as denying contraception to married people?