Establishing a constitutional right to social liberalism

Posted: May 04, 2005 12:00 AM

Gov. Jeb Bush of Florida is under fire once again for upholding traditional morality. And, once again, his detractors are citing the "right to privacy" to attack him.
State law in Florida requires that the Department of Children and Families not consent to "sterilization, abortion or termination of life support." Yet on Monday, May 2, a circuit court judge in Florida, Ronald Alvarez, ruled that a pregnant 13-year-old girl in state custody had a right to an abortion despite the state's objections. The girl ran away from her state home in January, became pregnant and asked her caseworker to schedule an abortion; the caseworker, presumably breaking state law, did so. And now the state -- the legal guardian of this girl -- has been barred from doing anything to prevent her from aborting her child.

 Predictably, the ACLU simultaneously lauded the decision and launched a broadside against the state government, which, not coincidentally, happens to be Republican. "This is another instance in which state government, under the leadership of our governor, is attempting to frustrate decisions that are made within what should be a zone of personal privacy," raged ACLU lawyer and Florida executive director Howard Simon.

 The development of the "right to privacy" in American thought has been long and tortuous. Obviously, the federal Constitution guarantees certain rights that deal with privacy. The First Amendment guarantees that government may not encroach upon our rights to free speech, free exercise of religion and free assembly; the Third Amendment guarantees that our homes may not be seized for quartering of troops; the Fourth Amendment guarantees our rights against "unreasonable searches and seizures"; and the Fifth Amendment guarantees that our property may not be taken for public use without just compensation.

 But there is clearly no blanket "right to privacy" in the modern sense. Today's "right to privacy" has never been consistently defined. While its proponents argue that the "right to privacy" is not a political tool, it has been deliberately invoked only to strike down traditionally moral state laws. Contraception and abortion have been ruled constitutional rights under the "right to privacy," despite the fact that neither acquiring contraception nor performing or receiving an abortion is a private act. Both involve multiplayer actions and decisions made in areas ranging from doctor's offices to pharmacies. Sodomy, too, has been ruled a constitutional right in Lawrence v. Texas; Justice Anthony Kennedy blithely informed the American public that homosexuals are "entitled to respect for their private lives," an idea that should come as news to anyone with access to a Bible.

 Despite its seemingly endless permutations, the "right to privacy" has never been invoked to protect interests adverse to those espoused by social liberals. Why doesn't a private business owner have just as much right to choose whom he hires (even on the basis of race) as a homosexual man does to choose the gender of his sexual partner? Why should the government be allowed to place restrictions on drug use? After all, procuring drugs is no less a public act than purchasing condoms is. Why should the government be able to force children to attend schools? If a 13-year-old girl need not notify her parents that she intends to end her pregnancy, why can't a 13-year-old choose to work on her PlayStation skills instead of her math skills?

 In truth, the "right to privacy" was conceived and invoked as a complete, "rights-based" challenge to the Judeo-Christian worldview. There is a certain instinctive appeal to the idea that the government has no place in our bedrooms. Justice William O. Douglas expressed such a concern in Griswold v. Connecticut: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? ... We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system."

 But Douglas never actually cites a source for this supposedly most ancient of rights, other than his own (historically inaccurate) opinion. That's because the basic thrust of biblical religion -- the system of morality the founders and citizens of the time understood to be the basis for all rights and concurrent obligations -- cuts directly against such a "right to privacy." The idea of an omniscient God opposes the idea of personal privacy. Whatever we do, from the marital bedroom to the kitchen to the workplace, is God's business.

 Of course, government is not God. But American morality rests on the notion that citizens may choose to reflect broad Judeo-Christian values through their elected representatives, as long as those values do not establish a particular religion as paramount. To say otherwise is not only to remove the power from the hands of the people, but to place it in the hands of a select few secular-liberal societal engineers.