Free Slouching Towards Gomorrah by Robert H. Bork

to maintain respectful silence during the prayer. While the Court’s insistence on driving religion and religious symbolism from the public arena has often been justified because of the alleged dangers of allowing religion and government to come close together, a closeness that is not within light years of establishing a theocracy, the Court frequently emphasizesthe harm to an individuals sensibilities of seeing religious expression with which he disagrees.
    Radical individualism is the only explanation for the Supreme Courts creation, out of thin air, of a general and undefined right of privacy. The Court used the invented right, allegedly to protect the sanctity of the marital bedroom, to strike down a dormant Connecticut statute prohibiting the use of contraceptives. 16 But marital privacy was shortly transformed into individual autonomy when the Court invalidated a Massachusetts law restricting access to contraceptives by single persons. 17 That in turn led to
Roe
v.
Wade 18
and the right to abortion. Whatever one’s feelings about abortion, the decision has no constitutional foundation, and the Court offered no constitutional reasoning. 19
Roe
is nothing more than the decision of a Court majority to enlist on one side of the culture war.
    The extra-constitutional individualism that undergirds the “constitutional” right to abortion was made clearest in the joint opinion of three Justices in
Planned Parenthood
v.
Casey. 20
These Justices, whose votes created a majority to sustain most of
Roe,
invented a heretofore unheard-of constitutional right to “personal dignity and autonomy.” They attempted to explain the appearance of this previously unsuspected right by saying: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 21 Beliefs about such matters were said to define “personhood,” which is to be protected from state compulsion. It is not recorded that any American government, from the founding on, has ever thought it worthwhile to compel anyone’s concept of meaning or of the mystery of human life. What this judicial grandiloquence means, aside from a right to have an abortion, nobody knows. But then hymns to radical individualism are necessarily murky and obscure. This particular one is known in the trade as “the mystery passage.”
    The language of the four dissenters in
Bowers
v.
Hardwick
…the case deciding, five to four, that homosexual sodomy is not a constitutional right…is clearer but even more dismaying. (After he retired, Justice Lewis Powell stated that he regretted not voting with the four, thus making a majority for their position.) The dissent would have found a constitutional right to engage in homosexualsodomy by invoking the right of privacy once more: “[The Court] has recognized a privacy interest with reference to certain decisions that are properly for the individual to make.” 22 The word “properly” signifies that not all decisions are for the individual to make, just those the Court, as opposed to the legislature, approves of. The majority, which ruled against Hardwick, tried to limit the reach of the right of privacy by saying that the cases decided under that heading had related to the protection of the family. The dissenters made an astonishing response: “We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life.” 23 So much for the family as the basic unit of society. The family’s value is measured by its contribution to individual gratification. That is a major theme of modern liberalism, particularly of its feminist component, which views the family as oppressive to individuals.
    Apparently not satisfied, the four dissenters immediately made things worse: “‘[T]he concept of privacy embodies the “moral fact” that a person belongs to