Wednesday, March 27, 2013

Oops! Scalia offers up the right to privacy regarding Gay Marriage and procreation.

Correct me if I’m wrong, but I thought conservatives didn't believe the Constitution had a broad guarantee of privacy.

Yet in this comment made yesterday by Justice Scalia on his question: 
"I guess we could have a questionnaire at the marriage desk, when people come in to get the marriage, you know, are you fertile or are you not fertile..." 
he offers what appears to be a off-the-cuff broad reading of the right to privacy :

Opponents of Roe v Wade feel privacy rights should not have been extended to protect a woman’s choice to have an abortion because of the their First Amendment rights. They feel like their religion should be extended, in violation the First Amendment rights of other people’s religious beliefs, to apply to everyone else.

Here’s a great look at what the Constitution does say about privacy:   
umkc: The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right.  The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause (Liberty Clause of the Fourteenth Amendment: No State shall... deprive any person of life, liberty, or property, without due process of law).

In what respects is abortion a private matter, and in what respects might it not be?  If you don't believe that the Constitution protects the decision to have an abortion, do you believe that it would prevent the government from forcing a woman to have an abortion and, if it would, what is the constitutional basis for that protection?

The future of privacy protection remains an open question.  Justices Scalia  and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees.  The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed.  The best bet is that the Court will continue to recognize protection for a general right of privacy. 
I thought this statement kind of summarizes my own feelings about our right:
The most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis's dissent in Olmstead v. U. S. (1928): "The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect."

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