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Obscenity, Church-State Relations, and Privacy

The nation had a long history of attempting to legislate moral behavior. For example, by the mid-twentieth century state and local government had sought under their police powers to proscribe obscene books and movies, to require that children pray in public schools, and to prohibit adults from using contraceptive materials. Each of these matters, however, came under increasing scrutiny, with the ACLU seeking to have these laws struck down and to have the First Amendment interpreted to give the fullest scope to individual expression. The nation's ethnic and racial heterogeneity and an increasingly open attitude toward sexual matters raised these issues to questions of important constitutional debate. Yet, no other area of postwar constitutional law was as fraught with controversy, in large measure because Americans were deeply divided. The Court's obscenity, church-state relations, and privacy decisions were at once products of and contributions to a growing sense of rights consciousness. They also fueled the attack on the Court as an imperial judiciary.

The Court struggled fitfully and ultimately unsuccessfully with the problem of whether to protect obscene material under the First Amendment. In 1957 the Court decided Roth v. United States and Alberts v. California. The first case involved a federal statute prohibiting the mailing of obscene materials; the second entailed a state obscenity statute. The Court in these cases was acutely aware that, while the states might prohibit obscene material, it did not follow that they should be left to define what was obscene, because that power would give lawmakers far too much discretion. But the Court did not define the term; rather, it said what was protected, and that was any idea having "the slightest redeeming social importance." 22 Operators of erotic bookshops and movie theaters then dressed up their offerings, claiming that they constituted high art or that they were really lessons in anatomy. The Roth test proved so elusive that Justice Potter Stewart ( 1959-1981) observed that, while he could not define obscenity, "I know it when I see it." 23 As another commentator observed, however, "[w]hen sex is a public spectacle, a human relationship has been debased into a mere animal connection." 24

The pornography industry grew apace during the 1960s, fueled by an atmosphere

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of open sexuality. The consideration of the interest of the state in the morality of its citizens took on new emphasis, as both local public officials, concerned about the urban blight that inevitably accompanied "sleaze shops," and religious groups designed ordinances intended to curb pornography mills. In Miller v. California ( 1973) the Court began to respond to these demands, giving local authorities somewhat greater control. The justices affirmed that obscene material was not constitutionally protected, but they modified the Roth test. They substituted in its place the idea that obscene material was "lacking serious literary, artistic, political or scientific value." 25 The determination of obscenity, however, was left to a local jury in which "the average person, applying contemporary community standards," decided whether the material in question "taken as a whole appeals to the prurient interest" as defined by state law. 26 Three justices dissented in the case, and their disagreements reflected that the United States was still divided on the relationship of law to morality and on the meaning of free speech. Nor has the community-based standard of Miller stemmed the tide of commercial pornography. Moreover, the women's rights movement in the 1980s attacked pornography on new grounds, seeking to discourage men from viewing "females as anonymous, panting playthings, adult toys, dehumanized objects to be used, abused, broken and discarded." 27



The connection between morality and the law also figured in the divisive reaction created by the Court's decisions in matters of church-state relations, especially prayer in the public schools. The most important case was Engle v. Vitale ( 1962), which involved a prayer composed by the Board of Regents of the State of New York. The prayer was a bland invocation; a product of a committee. "Almighty God, we acknowledge our dependence upon Thee," and it continued, "we beg Thy blessings upon us, our teacher, and our country."28 The prayer was strictly voluntary, for both school districts in the state and children in schools that did adopt it. Furthermore, religion was a regular feature of public life, even to the phrase "In God We Trust" printed on pennies. Yet well-meaning (and not so well-meaning) teachers brought subtle pressures to bear on young students, especially of non-Christian denominations.

The Court, with only Justice Potter Stewart dissenting, struck the New York prayer down as a violation of the establishment clause of the First Amendment. Justice Hugo Black held that the clause had erected a high wall of separation between church and state, and the prayer was a state-ordained religious practice.

The decision sparked great controversy. Some politicians seized on it to attack the Court generally, not just in its civil liberties decisions but in those cases involving civil rights as well. Thus, Congressman George W. Andrews of Alabama, an opponent of racial integration, proclaimed that the justices had "put the Negroes in the schools" and "now they have driven God out." 29 By the late 1970s, as Christian fundamentalism gathered strength, efforts were undertaken to secure an amendment to the Constitution permitting school prayer, a measure that President Reagan approved but with little success. The Court's ruling, moreover, was widely circumvented.

The justices also became embroiled in moral controversies involving state regulation of birth control devices. The case of Griswold v. Connecticut ( 1965) involved an 1879 statute that prohibited the use of any drug or device to prevent conception, and also penalized persons who advised on or provided contraceptive devices. Griswold was the director of the Planned Parenthood League and one of the doctors in the league's clinic who prescribed contraceptives to a married person.

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The Supreme Court, with Justice Douglas writing the opinion, held the law unconstitutional by a vote of seven to two. The decision was one of the most important of the twentieth century, and in its argument and effect it revealed much about the way in which the Court was attempting to adapt the Constitution to new realities, one of which was a revolution in birth control and the increasing incidence of women working and seeking to protect themselves from pregnancy. Douglas recognized that the law did not violate any specific guarantee of the Bill of Rights. However, he discovered a new right--that of privacy--to fill in the vacant space. Legal scholars and the Court had previously hinted at such a right. Louis D. Brandeis and Samuel Warren, Jr., had published in 1890 a pioneering essay in the Harvard Law Review on the subject. Later Brandeis, while on the bench, had written in Olmstead v. United States ( 1925) (a case involving wiretapping) that the framers of the Constitution had "conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." 30

Douglas located this right of privacy in a "penumbra" of the Constitution, which were the emanations of rights that came from the document without being specifically stated. Other members of the Court agreed with Douglas without taking such an advanced and controversial position. They concluded that the Ninth Amendment, which recognized the existence of rights outside those specifically mentioned in the Constitution, was applicable. Marital privacy was one of those rights; the Connecticut law was an intolerable intrusion by the state into the bedroom. Still other members of the Court found that such a right was based on the idea of substantive due process of law, and they relied on the old economic-regulation decisions to affirm this new civil liberty. Justice Hugo Black dissented because he thought that the Court--having rejected his view of total incorporation in Adamson ( 1948)--was simply invoking principles "to keep the Constitution in tune with the times," a task that lay beyond its power or duty. 31

It was this reasoning that paved the way for the Court's decision in an even more controversial case eight years later, Roe v. Wade. In this case, the justices struck down a state abortion statute as a denial of due process of law and held that the interests of the state and the rights of women had to be balanced. Thus, Justice Harry Blackmun, speaking for the majority, concluded that the state could only intervene in restricting abortions after the first six months of pregnancy, when the fetus had become viable. Abortions had always been available to women who had the money to pay for them, and the state laws had not so much discouraged abortions (although they certainly did that) as they drove women who were desperate to terminate a pregnancy into frequently dangerous treatment by unqualified abortionists.

The Roe opinion generated powerful protests that went beyond even the reactions registered in the school prayer decisions, although fundamentalist Christians and the Catholic Church played an important role in opposing the decision. The pro-life movement argued that the fetus had rights as well, and that there were better solutions to unwanted pregnancies. Informational picketing aimed directly at women using abortion clinics was combined with a political effort to persuade lawmakers to undertake a constitutional amendment to outlaw abortion. Once again, President Reagan threw his support behind the proposed amendment, but, as with school prayer, with little effect. The nation was as divided over abortion as it was with school prayer, placing the amending process, with its requirement of a two-thirds vote in Congress to propose and

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a three-quarters vote by the states to ratify, beyond the political grasp of the pro-life forces.

There were limits to the Court's willingness to fine-tune the Constitution to the exigencies of the sexual revolution. Homosexuality, while still a highly controversial practice, had lost some of its social stigma. Gays came out in the open, and they pooled their resources to promote their interests through politics and litigation. For example, they succeeded in winning passage of "gay bills of rights" in several cities, most of which were based on the model fashioned by the powerful homosexual community in San Francisco. The effect has been to decriminalize homosexual conduct and to permit homosexuals some limited rights with regard to parenting and public employment. Significant barriers remain, and the Court has demonstrated that it is unwilling to subject statutes dealing with homosexuals to the same level of scrutiny that it had previously applied to blacks. The Court, in Bowers v. Hardwick ( 1986), ruled that state sodomy laws, which banned private relationships between consenting homosexual adults, were fully within the police power of the states.

 


Date: 2015-01-29; view: 686


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