Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Wednesday, October 05, 2005

An Attack on Griswold v. Connecticut?

A propos the Indiana legislation discussed below, Binky, in the comment thread, asks:

Oh, and I just saw a comment about how this might be an attempt to start a case that could end up at the SCOTUS to attack Griswold. What do you think, Moon?

Griswold, for those who don't know, is a seminal case in the establishment of "penumbral" privacy rights, a flagstone on the path directly to Roe, and a case that largely is thought to be all but sacrosanct. In Griswold, the Court held that Connecticut could not maintain a law interfering with a married couple's right to counseling, information, and resources pertaining to contraception. From there, it was a short jump to finding a similar right in unmarried couples, and from there Roe wasn't far off.

Here's the body of the comment Binky asks about:

My conspiracy theory: The legislation has been deliberately drafted to be unconstitutional under Griswold v. Connecticut. While it’s clearly targeted at gay couples and single women, even its treatment of the privileged white heterosexual married couple is unconstitutional under Griswold.

Now, why would a state draft a deliberately unconstitutional statute? Well, if the party drafting it thinks that by the time it works its way through the Court system they’ll have a 5-4 majority on the SCOTUS that will happily overturn the privacy/reproductive privacy rights in Griswold, there is all kind of benefit from their point of view, isn’t there? They wipe out Roe and Lawrence in one fell blow.

I wish I could believe it’s just a random example of Republican wingnuttery. But the legislation seems too perfectly drafted to be unconstitutional for me to think it’s accidentally a parallel to Griswold. I’d like to think I’m giving them too much credit.

I have little to say; the quotation pretty much nails the issue, and it's hardly unheard of for state bodies, legislatures or courts, to act in a way that forces the United States Supreme Court to reaffirm or clarify an existing holding, or to modify or reverse it. I don't know much of anything about how Indiana stocks its legislature, or how big it is or its representative politics. Of course, it's a red state, but that only teaches so much.

The comment, in any case, makes a legitimate point I hadn't even considered: the legislation is most infirm in its facial non-compliance with the spirit and the letter of Griswold, something any politically savvy undergraduate-educated political aid would have been able to tell his boss. And insofar as Griswold paved the way for Roe and Lawrence (loosely, recognizing a constitutional right to consensual sodomy), it is true that to strike at the former case would be to undermine substantially the latter cases.

But there's an additional weirdness about this: any savvy legislator might have guessed that Chief Justice Roberts, while he might be an ally of the right on Roe, though anyone who takes that for granted is willfully ignorant of Roberts' sophistication and his adroit avoidance of this issue over the past 20 years in any relevant context, almost certainly would not go so far as to uphold any legislation that facially violated Griswold. Accordingly, since the vote to uphold Griswold prior to the departure of Rehnquist and O'Connor was at least 6-3, even if Miers were a raging revanchist lunatic (something very few people seem to believe) the Indiana legislature would be evidence of nothing more than picking a fight one is doomed to lose.

But perhaps Indiana republicans are itching to lose that very fight just to get it onto a national stage. Who knows what young, ambitious Movement Republicans skulk about the halls of the Indiana legislature with millenarian visions dancing through their heads? Perhaps the Shadow knows.


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