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Wednesday, September 19, 1S34
Daily Nebraskan
Pago 5
Potential justice gives clue to future
ourt decision suDDorts moral c
G
iioice
i"" residential campaigns can
J produce a net subtraction
from public understand
ing. Attention given to ersatz
events comes at the expense of
attention to real events. Rallies
are recorded; real clues to the
future are scanted.
One such clue may have come
recently when a judge who is on
President Reagan's short list of
potential Supreme Court nomi
nees made a decision illuminat
ing a judicial style, and a poten
tial path for a return to reason
ableness on the abortion issue.
paa- ' ' 'at wwTBKmrssma&mmzmnrri
'A George
"rs i w w ill
j-
The decision was by Robert
Bork of the U.S. Court of Appeals
for the District of Columbia. It
concerned the Navy's right to
discharge a sailor for repeatedly
engaging in homosexual activi
ties in barracks on a Na val base.
The sailor contended that the
discharge violated his constitu
tional right to privacy.
Navy rules stipulate that homo
sexual behavior shall normally
result in discharge because homo
sexuality in a military environ
ment "seriously impairs efficiency
and morale." The question was:
Does homosexual conduct enjoy
the overriding protection of a
constitutionally protected "pri
vacy right"?
The drama of the question de
rives from the fact that in 1973
the Supreme Court discovered a
constitutional right to abortion.
It discovered that right within a
larger zone of privacy rights that
the Court could not convincingly
relate to other constitutional pro
visions. The sailor argued that Court
ruling9 on privacy have, cumula
tively, established this principle:
Government should not interfere
with an individual's freedom to
control intimate personal deci
sions regarding his or her body,
except when compelling state in
terests make it necessary. He
argued that consensual homosex
ual activities fall within a zone of
constitutionally protected privacy
more important than the Navy's
concerns.
Bork wrote that the Court has
neither said nor logically implied
such a principle. The idea of a
privacy right grew as a supposed
"emanation" from other guaran
' tees explicitly made in the Con
stitution. When the Court first
spoke of a privacy right-by-emana-tion,
the Court was merely rec
ognizing that it is sometim.es
necessary to protect another that
is. (The Court held that the
NAACP had a privacy right to
keep its membership list secret
from the state of Alabama in
order to protect its First Amend
ment associational rights.)
Bork's analysis is broadly major
itarian, deferring to the discre
tion of the community's popu
larly elected branches of govern
ment as they m ake choices about
activities that shall be, on moral
grounds, regulated. He pointedly
noted that even in the chaotic
1973 abortion decision, the Court
said the privacy right "cannot be
said to be absolute. In fact, it is
not clear to us that the claim . . .
that one has an unlimited right to
do with one's body as one pleases
has a close relationship to the
right of privacy previously articu
lated in the Court's decisions."
Indeed. The previously articu
late right of privacy was subser
vient to the community's decision
to protect other activities on
moral grounds. Although Bork
does not reach out to the issue,
his analysis makes clear the diffi
culty of finding in the Constitu
tion or in a settled, coherent body
of Court decisions a basis for
denying the community the right
to regulate abortion.
How, suddenly, in 1973, did the
law of 50 states become uncon
stitutional burdens on a right of
abortion? What had happened to
the community's right of demo
cratic choice regarding the values
at issue? Perhaps a clue to the
Court's unarticulated thinking is
in an argument the sailor adduced
for a constitutional privacy right
to protection for homosexual
activity.
He argued that the very fact of
community disapproval of an
activity disables the government
from regulating the activity. That
is, unless any activity disapproved
by the community is given the
special status of a protected con
stitutional right, then no minor
ity rights are safe.
Bork replied that this theory
that majority morality and major
ity choice is always made pre
sumptively invalid by the Con
stitution attacks the premise
of Democratic government. It
would "destroy the basis for much
of the most valued legislation our
country has. It would, for exam
ple, render legislation about civil
rights, worker safety, the protec
tion of the environment, and
much more, unconstitutional. In
each of these areas, legislative
majorities have made moral cho
ices contrary to the desires of
minorities."
(The sailor's lawyer, Insisting
that moral abhorrence could
never be a basis for regulating an
activity, was asked about bestial
ity. He replied that bestiality could
be prohibited because it is cruel
to animals which, evidently, he
considers abhorrent.)
Bork struggled to extract from
the Supreme Court's various pri
vacy pronouncements a princi
ple applicable to the sailor's case.
However, his analysis is an inti
mation of how, a reconstituted
Court could, on majoritarian
grounds, dis-establish some freshly
minted constitutional "rights" and
restore the community's right to
make moral choices.
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