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Appointments to the U.S. Supreme Court

The concept of personal privacy

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The concept of personal privacy:

One of the major differences between strict constructionist and liberal justices involves the principle of personal privacy. In the past, a majority of justices have found this to be implicit in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and elsewhere. Section 1 of the 14th Amendment states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The due process clause is emphasized above. 2

The Free Dictionary states:

"Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice and liberty" to all citizens. 1

A majority of justices of the Supreme Court has determined that the due process clause implies that governments cannot pass legislation that intrudes too deeply into the personal life of its citizens. That is, there are limits to the ability of states to control personal behavior.

The belief that the constitution limits the degree of intrusion by the state into areas of personal privacy began with the 1961 case of Griswold v. Connecticut. Estelle Griswold, executive director at the time of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale University's Medical School, opened a small birth control clinic in downtown New Haven, CT. They were arrested within days on a charge of dispensing contraceptives to a married couple.

This may sound ludicrous today. We see governments are promoting the use of condoms to prevent transmission of AIDS and other STDs. Pharmacies have a bewildering array of condoms on display next to headache remedies and vitamins. However, this case originated almost two generations ago, when social norms were very different. The defendants were found guilty and fined $100 each. They launched a lawsuit which reached the Supreme Court in 1965. Seven out of nine judges:

"agreed that a zone of privacy protecting birth control inheres in what the justices variously called a 'penumbra' (a shaded rim between darkness and light) of the Constitution or in 'emanations' from specific provisions in the Bill of Rights, such as protection from unwarranted search and seizure. In other words, although the Constitution and the Bill of Rights do not explicitly guarantee privacy rights to individuals, such rights were said to be implicit within them." 3

This case laid the groundwork for

bulletLoving v. Virginia in 1967 which legalized inter-racial marriages across the U.S.
bulletEisenstadt v. Baird in 1972 which confirmed the right to privacy and gave unmarried women access to contraceptives.
bulletRoe v. Wade in 1973 which gave women free access to early abortions.
bulletLawrence v. Texas in 2003 which declared laws restricting sexual behavior by adults in private to be unconstitutional.

If and when a case similar to Loving v. Virginia that attempts to legalize same-sex marriage reaches the Supreme Court, it will probably be decided primarily on the basis of the due process clause.

Mr. Justice Stewart referred to the Fourteen Amendment in 1973 when he issued a concurring statement in Roe v. Wade. He wrote, in part:

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas."

Under this clause, the U.S. Supreme Court has "...recognized such rights and the right to an early abortion, the right to use contraceptives, [and] the right to medical treatment..." 2 For opposite-sex couples, the court has also recognized "...the right to marry." 2 In mid-2003, the court based its Lawrence v. Texas ruling on the right to privacy. That decision gave both homosexual and heterosexual adults the right to engage in private consensual sexual activities, even if most of the public consider the behavior to be immoral. The state cannot intrude into the bedrooms of the nation and impose the majority's moral beliefs on the entire public.

However, the right to privacy is not explicitly stated in the Constitution. Thus most, if not all, strict constructionists do not recognize this right. They believe that there are no limits on the intrusions that governments can make into people's lives. States could pass laws outlawing access to contraceptives, access to abortion, criminalizing any sexual or other behavior that a legislator feels is immoral, etc. Those laws would probably be found to be constitutional if a majority of justices are strict constructionists.

As an example, a bill is working its way through the Wisconson legislature which would prevent university students having access to emergency contraception. With today's makeup of the Supreme Court, if the bill were to become law, it would probably be declared unconstitutional because it would violate the students' right to privacy. Under a court with one or two additional strict constructionist justices, it might well be declared constitutional.

On 2005-JUL-19, President Bush nominated John G. Roberts, "a rigid conservative" as his selection to replace retiring Justice O'Connor. Roberts co-wrote a brief for President H.W. Bush saying that Roe v. Wade -- the Supreme Court decision that legalized early abortions -- should be overturned because it has no basis in the U.S. Constitution -- that is, that the Constitution does not explicitly guarantee a right to privacy, and thus such a right does not exist. 4 He was deputy solicitor general in 1990 during the first Bush administration when he argued a case in which he said that Roe v. Wade "was wrongly decided and should be overruled." However, he told senators at his 2003 confirmation hearing on his appointment to the Appeals Court that he was merely acting as an advocate for his client. At that time, he told senators Roe was "the settled law of the land." He said that: "there's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." Some have interpreted this to mean that he is not personally opposed to abortion access, even though he is a Roman Catholic. Others suggest that his comment means that as a judge at the appeals court level, he would be compelled to follow the precedent set by the Supreme Court when it freely allowed early abortions, even though he might feel that it was wrong. 5


The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Due process," The Free Dictionary, at: http://encyclopedia.thefreedictionary.com/
  2. "Encyclopedia: United States Constitution/Amendment Fourteen," NationMaster.com, at: http://www.nationmaster.com/
  3. Ellen Chesler, "Why the Right to Privacy May Be Taken Away by a New Supreme Court," History News Network, 2005-JUL-25, at: http://hnn.us/articles/13100.html
  4. Tim Harper, "Battle brews over Bus court nominee," The Toronto Star, 2005-JUL-20, Page A1 (front page.) Online at: http://www.thestar.com/
  5. "Bush nominates Roberts to Supreme Court. Republicans praise nominee as Dems vow thorough review," CNN News, 2005-JUL-20, at: http://www.cnn.com/

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Copyright © 2003-2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-16
Author: B.A. Robinson

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