Reviews | Americans Lose Their Right Not to Comply

On June 24, the Supreme Court devastated Roe v. Wade and Planned Parenthood v. Casey on the grounds that the right to abortion is not enumerated in the Constitution and is not deeply rooted in the history and traditions of the United States. As many commentators have noted, similar objections could be filed against precedents like Griswold v. Connecticut, Lawrence c. Texas and Oberfell v. Hodges, who recognize constitutional protections for contraception, sex, and marriage.

So it’s curious to see today’s conservatives celebrating the prospect of nullifying privacy rights. These rights have for years protected Americans who have chosen the path less traveled — those who have resisted traditional ideas about sex and family. Without these rights, it would be much harder for Americans to make choices about some of the most intimate aspects of their lives, such as if and when to have children and with whom to associate and start a family.

There is something deeply un-American about challenging these cases and the principles behind them, at least according to the American ideals that liberals and conservatives used to hold. In a 1928 presidential campaign speech, for example, Herbert Hoover, a Republican, invoked “the American system of savage individualism” – the notion that America was a place of free markets, individual thought and a stubborn skepticism of state-imposed conformity.

It’s obvious that many on the right today don’t view LGBTQ rights and abortion protections as a matter of individualism, in the old-school conservative mold. They see departures from the traditional heterosexual family and traditional gender roles as aberrant and wrong. But it’s strange, because the freedom to define oneself — not to conform — has deep roots in American traditions of pluralism, independence, and resistance to the prospect of governmental coercion.

The right to privacy was established in Griswold – the contraception case – in 1965. In this decision, the court referred to two parental rights cases from the 1920s, as well as more recent cases in which the court recognized constitutional protections for those who espouse unpopular political views. The message was clear: the Constitution makes room in our society for those who do not conform to traditional norms, whether politically or in the conduct of their private lives.

Justice Harry Blackmun, who wrote the majority opinion in Roe, emphasized this view in his dissent in Bowers v. Hardwick, a case from 1986 enforce a Georgian law criminalizing sodomy. The ruling was widely seen as a blow to the growing LGBTQ rights movement. Justice Blackmun looked askance at the prospect of laws that would manifest the state’s preference for heterosexuality by criminalizing the private sexual conduct of gay men and women. He explained that in our diverse nation “there can be many ‘right’ ways” to conduct relationships and that “much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal ties.”

Three years later, in response to a ruling denying paternal rights to a single father, Judge William Brennan, who joined Blackmun’s dissent in Bowers, placed greater emphasis on diversity and pluralism. The court dismissed the father’s claim largely because the child was the product of an adulterous relationship. Writing for the court, Judge Antonin Scalia framed the denial as a “unitary family” defence. Judge Brennan resisted this grouchy view of the family: “We are not an assimilating, homogenous society, but a facilitative, pluralistic society in which we must be prepared to accept the unknown or even repulsive practice of someone other, because the same tolerant impulse protects our own idiosyncrasies. ”

Brennan’s dissenting view and his defense of the constitutional protection of noncompliance ultimately prevailed. In 2003, Lawrence v. Texas court struck down laws criminalizing buggery. In doing so, he favorably cited Planned Parenthood v. Casey, the abortion case dismissed alongside Roe last month, for the view that decisions “involving the most intimate and personal choices a person can make in their lifetime, choices essential to personal dignity and autonomy, are at the heart of the liberty protected by the 14th Amendment.The Constitution, it seemed, made room for nonconformity.

Conservatives have not always resisted the impulse towards non-compliance. Take the First Amendment, a particular favorite of the court’s conservative bloc. Not only does it protect dissenting voices; it begins by discrediting the prospect of state-imposed religious conformity. (Although it should be noted that this court’s defense of the First Amendment is often deployed in favor of evangelical Christians rather than minority religious sects.)

The Second Amendment court’s steadfast defense bears all the hallmarks of the rugged individualism that Republicans once praised. In the New York gun rights case decided the day before the decision overturning Roe v. Wade, Justice Clarence Thomas, who wrote for the majority, told a story in which the denial of the right to bear arms left newly liberated African Americans particularly vulnerable to racialized violence. His argument was clear: the right to bear arms could be a critical equalizer for those who, because of their race, did not conform to the traditional view of white male citizenship.

Admittedly, the defense of non-conformity with the Constitution is not radical. There is no absolute right to do whatever you want whenever you want. But there is a long American tradition of championing pluralism and protecting those who seek the road less travelled. Why, then, do contemporary conservatives insist on protections primarily for those who oppose liberal access to abortion and contraception, same-sex marriage, and reasonable restrictions on guns, as a majority argues? of Americans? Why is this a non-compliance for me but not for you? Some would argue that a faithful view of the Constitution rooted in the 1780s requires taking a conservative approach to these issues. Others argue that these disjunctions are simply a matter of power — of shaping a society in which everyone must conform to the view of American life that contemporary conservatives desire.

Either way, the loss of the right not to conform makes it harder for this country to continue as a multiracial, multiethnic, and multifaith democracy. And maybe that’s the point.

Melissa Murray is a law professor at New York University and co-host of the “Strict Scrutiny” podcast.

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