Contrasting Views of Marriage: The Benefits of Same-Sex Marriage
More recently, in 2005, you suggested-in "The Bad Decision That Started It All"-that Griswold v. Connecticut (1965) was wrongly decided. In Griswold, a state law that prohibited married couples from using contraceptives was overturned. In arguing that laws prohibiting contraceptives have a definite social purpose (and so should be viewed as constitutional), you declare that Connecticut did indeed have a purpose in defending that law: the state "sought to promote marital fidelity and stable families" by "discouraging attempts to avoid the possible consequences of non-marital sexual relations" via the use of contraceptives. However desirable that goal (to reduce infidelity) might be, Connecticut's state law operated directly to stop married individuals from using an important means of regulating the number of children they will have.
Your argument for overturning Griswold is, I believe, mainly a tactic to allow you (and the Court) to find a route toward overturning the subsequent "abortion rights" decision, Roe v. Wade. However, in casting doubt on the Court's defense of the right of married couples to use contraceptives, your argument above suggests strongly that you would interfere with the right of married couples to reach intimate decisions. Justice Harlan, who concurred in Griswold, captures key elements of this concern when commenting on a state law that made it a crime to use contraceptives:
Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law.
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Harlan goes on to argue that:
The Constitution protects the privacy of the home against all unreasonable intrusion . . . The home derives its preeminence as the seat of family life . . . It is difficult to imagine what is more private or more intimate than a husband and wife's marital relations.
I don't believe you discuss contraceptives in What Is Marriage? However, your views as a Catholic may lead you to believe that marital relations should be private but that contraceptives should not be used-and that it would be desirable if their use were forbidden by law. Would you let me know where you currently stand on Griswold? It will be helpful as I consider a response to the commentary you are preparing.
On Lawrence and Windsor
In Lawrence v. Texas (2003), a majority of the Supreme Court held that a statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violated the US Constitution. For the majority, Justice Kennedy wrote, "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and private spheres." Bowers was overruled.
Your response was to criticize that decision; you argued in a 2011 interview that the majority opinion conveys a sense that there is "no reason of moral principle why people oughtn't to engage in sexual relations prior to marriage [or] form same-sex sexual partnerships." Based on your book, I think it likely that you now support the majority opinion in Lawrence. Would you clarify?
As to the Court's decision in Windsor, one of the main themes in your book is the need for equal treatment of those in SSM in all matters except "marriage" as you define it. Since your 2012 book preceded the Court's decision, I yield the floor to you, in the hope you will clarify your views.
In that volume, you do argue that "we should fight arbitrary or abusive treatment" of those experiencing same-sex desire "with the same force and diligence with which we would oppose unjust distinctions by race or sex." Your sentiments there suggest that you opposed the Defense of Marriage Act (DOMA) insofar as it barred equal federal benefits for Edith Windsor and others in same-sex relationships. Is this a fair reading? If the federal statutes and regulations that DOMA controlled as to Social Security, housing, criminal sanctions, and veterans' benefits were modified so that same-sex couples in a state-regulated "civil union" could benefit equally with HSM, would you support that new law?
I look forward to continuing this exchange of ideas.
