The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.
-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia
Large-scale wars often take place on several fronts. In its undeclared war against the American family, the Supreme Court of the United States has initiated conflict in several areas of constitutional law. The Court launched its first attacks more than fifty years ago, with the most important developments occurring from roughly 1957 to 1977. Today, the war shows no signs of ceasing. Indeed, to judge from comments offered during the last decade, the High Court takes considerable pride in what it has been doing to undermine the family as a social ideal and as a social institution. Unsurprisingly, the American family—understood since colonial times to the modern era as a lawfully wedded man and woman and any children they have begotten or duly adopted—remains in a precarious position. Critics can hope that the Court will someday repudiate this chapter in its history—along with the concomitant legal doctrines it has constructed—but no one should expect that to happen anytime soon.
Some might argue that the Court is not hostile to the family, but is constitutionally obliged to protect the freedoms of all adults, even if the exercise of those freedoms harms important social institutions. Others might say that a proper regard for “American pluralism” justifies the Court’s new posture against the family. But these defenses of the Court are untenable. As the historical record shows, American jurists previously knew that granting constitutional protection to morally dubious freedoms could harm the family, and they accordingly rejected such claims. The argument about pluralism is also specious because the American federal system of government, which includes fifty state legislatures, can accommodate many different religious and cultural traditions. In fact, the Supreme Court sometimes shows little regard for genuine pluralism and imposes a stifling uniformity on the fifty states, preventing them from functioning as “laboratories of democracy” for social policy.
The damage inflicted on the family by the Supreme Court can be seen in a series of rulings that significantly changed or voided state laws that regulated contraception, pornography, and homosexual behavior. These laws at one time furnished a compelling model of family life for the American people. Liberals and feminists may now mock that model, but it was intelligible to all and enjoyed widespread allegiance. Virtually all Americans agreed, for example, that the foundation of a family is the monogamous union of one man and one woman, a union characterized by love and the intimacy of coitus. Until sweeping changes in divorce law during the 1970s, this union was ordinarily dissolvable only for weighty reasons—such as abandonment, cruelty, or infidelity. As a couple united in marriage, the wife and husband were jointly responsible for any children who issued from it.
Some contend that the principles behind these laws were grounded in religion and cannot be justified independently of religious belief. But that view is simply false. From the classical age to the present, influential philosophers and political theorists in the West, including John Locke and John Stuart Mill, have justified these principles on the basis of natural law and human reason, not religious dogma. So, for example, political philosophers have tried to justify the joint responsibility of mother and father for any children that they beget.
To be sure, the duties of marriage and family life—in particular, marital fidelity and the care and nurturing of children—have never been easy. To help spouses and parents meet those duties, statutory law from the early years of the Republic prohibited certain behaviors. Some of these prohibitions were at times difficult to enforce (for example, sundry regulations on contraception), but aside from its more basic function of influencing conduct, the law also serves as a teacher of citizens. For most of our nation’s history, legislators appreciated the pedagogic functions of the law and rejected the view that nonmarital sexual relations and the consumption of pornography are purely “private” matters. They knew that social interests of a high order, including the sanctity of the family, would be implicated if these behaviors became common, and they strove to discourage them.
To that end, almost all states protected the marriage bond through legislation. They regulated contraceptives in different ways—for instance, by banning their sale or distribution, by limiting their sale to married persons, or by requiring a prescription to obtain them. As a result, it was often difficult for unmarried persons to obtain them. All kinds of pornography, even “soft-core” images, were illegal on the ground that pornography promotes irresponsible or dangerously cavalier attitudes towards human sexuality. Finally, homosexual conduct—which, of course, is intrinsically unrelated to procreation and was hence long deemed nonmarital—was widely criminalized, and no one could contemplate the possibility of “same-sex marriage.”
Why did the Supreme Court dismantle this body of state laws? In invalidating or revising different statutes, the Court believed that it was pursuing the “humane” course of action and implementing policies superior to existing ones. But the Court failed to anticipate different consequences of its actions, while sometimes endorsing behaviors that many Americans consider immoral. Over time, many citizens would become indifferent to nonmarital sexual relations, begetting children outside marriage, the production and consumption of pornography, and most aspects of the homosexual lifestyle. Although large numbers of Americans, especially elites, believe that these shifts in attitudes represent social progress, equally large numbers contest the point. As evidence, the latter can cite the stupendous rise in out-of-wedlock births in the last fifty years, the “mainstreaming” of hard-core pornography, and the unprecedented challenge of sustaining marital love in such an environment. A social revolution has surely taken place in the United States; anyone seeking to understand it would do well to consider the Supreme Court’s role in it.
Regulating Contraceptives: The End of an Era
That role is seen in Griswold v. Connecticut (1965), in which the Supreme Court invalidated two Connecticut laws prohibiting the use of contraceptives, even by married persons. The first law was an “anti-use” statute; the second was an accessory provision, which made it a crime to facilitate such use. The Court ruled that the laws violated an unenumerated constitutional right to marital privacy—a right of associational privacy, belonging jointly to husband and wife, though not expressly mentioned in the Constitution. In a departure from time-honored practice, Justice William O. Douglas’s majority opinion did not identify any purposes of the Connecticut laws. The purposes, however, were not obscure; they can be discerned by reviewing state court decisions prior to Griswold.
In the twenty-five years before Griswold, various parties challenged the constitutionality of the Connecticut laws at the state level. In State v. Nelson (1940), Connecticut’s highest appellate court affirmed the constitutionality of the laws. The court, then known as the Supreme Court of Errors, indicated that they were meant to confine sexual relations to the protective bonds of marriage by discouraging both premarital and adulterous sexual relations. This court left no doubt that it understood the logic of the two statutes, observing that the “risk of illegitimate pregnancy is a recognized deterrent deemed desirable in the interests of morality.” The reasoning of the Connecticut court stands in contrast to the conventional wisdom of today, which holds that greater access to contraception will reduce out-of-wedlock births and lead to more children being born within the bonds of marriage.
As the phrase “illegitimate pregnancy” suggests, men and women who begat a child outside marriage were at the time typically objects of censure in their community. Such censuring stemmed from both laws and social attitudes. As duly elected representatives of a political community, Connecticut’s legislators were charged with seeing that certain moral convictions of that community were reinforced and embodied in the law. This particular law sought to discourage those persons who might be tempted to have premarital or nonmarital sexual relations and avoid detection by using contraceptives. Other states enacted similar laws—with roughly twenty-five states regulating contraceptives in the early 1960s—though Connecticut was the only state to penalize their use.
The uniqueness of these Connecticut laws was long regarded as the state’s prerogative under the “police power,” a legal concept rooted in the Tenth Amendment. The traditional jurisprudence of the police power maintained that states have broad authority to promote public health, safety, and morals. A judge may invalidate a state law falling into these categories only if it conflicts with norms fairly derivable from the text, logic, or original understanding of the U.S. Constitution or a state constitution. On this basis, the Supreme Court had previously dismissed constitutional challenges to state regulation of contraceptives. In Gardner v. Massachusetts (1938), for example, the Court declined to hear a challenge to a Massachusetts ban on the sale or distribution of contraceptives. It ruled that the suit did not present “a substantial federal question.”
On what grounds, then, did the U.S. Supreme Court invalidate the Connecticut laws in Griswold? Despite saying nothing about the purpose behind the two laws, Justice Douglas’s majority opinion asserted that the laws had a “maximum destructive” impact on marriage, a relationship that was said to fall within constitutionally protected “zones of privacy.” This unenumerated and ambiguous “right to privacy” would become much better known after Roe v. Wade (1973), where the Court ruled that “privacy” encompasses a woman’s freedom to have an abortion, but it was still controversial when introduced in Griswold. Douglas argued that the Constitution protects more freedoms than those expressly mentioned in the document, including “freedom of association” and a right to “privacy and repose.” To substantiate this view, he cited cases in different areas of the law. In a much-discussed sentence, he submitted that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” This language allowed him to say the Court was not acting as a “super-legislature.”
But in the eyes of the two dissenting justices, this is precisely what the Court was doing. They averred that the Court was invalidating the laws only because seven justices personally disliked the state’s policy. In separate dissents, Justices Hugo Black and Potter Stewart expressed objections to the state policy, yet acknowledged the importance of distinguishing the desirability of a policy from its constitutionality. Each argued that changing these statutes was the responsibility of the Connecticut legislature.
Black went further and appealed to history. To convey his worries about the future—he feared that the Court was embarking on a dangerous journey—he cited the Court’s 1905 decision in Lochner v. New York. Here the Court invalidated a state law that prevented bakers from working more than sixty hours per week. The law had been passed as a measure to promote public health (relating to working conditions in bakeries), but the Court used a judicially invented right known as “liberty of contract” to strike it down. The Court repudiated the doctrine of “liberty of contract” in 1937, but Lochner came to define an era, and a disreputable one at that.
‘Normalizing’ Sex Outside of Marriage
Black’s invocation of Lochner proved prophetic: the Court had embarked on a bold and possibly rash journey. The rulings in subsequent cases proved so controversial that the Court’s legitimacy would be called into question. Among those cases was Eisenstadt v. Baird (1972), where the Court invalidated a Massachusetts law regulating contraceptives. Following Griswold, the Massachusetts legislature had revised its law; married persons in the commonwealth could obtain contraceptives from licensed pharmacists, but sales and distributions to unmarried persons were still prohibited. William Baird, a vocal critic of the revised law, sought to be arrested and prosecuted in order to challenge its constitutionality. After giving a lecture at Boston University in 1967, he handed out birth-control devices to unmarried women attending the lecture. Police promptly arrested him; his suit took five years to resolve. In Eisenstadt, the Supreme Court ruled that by treating married and single persons dissimilarly, the Massachusetts law violated the Equal Protection Clause of the Fourteenth Amendment.
In its ruling, the Court thoroughly departed from the meaning of the “right to privacy” put forth in Griswold. The decision laid the foundation of Roe v. Wade and went a long way to advancing the central goal of the sexual revolution—“normalizing” sexual relations outside of marriage. Writing for the majority, Justice William J. Brennan Jr. admitted that the “right to privacy” was previously described as an associational freedom that inheres in the marital relationship. He now characterized the right anew by asserting: “The marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals each with a separate intellectual and emotional endowment.” Having introduced this premise, it was much easier for Brennan to say that single persons should also be free to obtain contraceptives—even though this is exactly what the Massachusetts law was meant to prevent.
Like Justice Douglas’s opinion in Griswold, Brennan’s majority opinion in Eisenstadt failed to identify any purpose of the Massachusetts law. In a complicated and unsatisfying analysis, Brennan claimed that the law was not intended to promote either public health or public morals. He then asked whether the law might be upheld simply as a prohibition of contraception, but denied that it could:
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
The sweep of this language and Brennan’s choice of words are striking. By asserting that citizens should be “free from governmental intrusion” regarding the decision “whether to bear or beget a child,” he frames the issue with rhetorical shrewdness. If taken literally, his words would apparently mean that Massachusetts had hatched a sinister plot and was coercing citizens to have children, as if it were a totalitarian state. This made it easier for Brennan to “sell” his new right. Moreover, the capaciousness of the new right is extraordinary. In Carey v. Population Services International (1977), Brennan denied that in Eisenstadt the Court had created a constitutional right for adults to engage in consenting, nonmarital sexual relations. But in Lawrence v. Texas (2003), decided after Brennan’s death, the Court read Eisenstadt in that way.
For all his alleged brilliance, Brennan did not anticipate what might ensue if contraception failed when used by unmarried persons. Nor did he consider the social consequences if nonmarital sex became socially acceptable and large numbers of children were conceived and born out of wedlock. What would be the fate of such children? The matter surely deserved Brennan’s attention because the contraceptive device that William Baird distributed (vaginal foam) was hardly failsafe; it was estimated to prevent conception only about 70 to 80 percent of the time. Brennan overlooked another matter. Making contraceptives difficult to obtain had served the principal “sanction” against nonmarital sexual relations—namely, the stigma of bearing or siring a child out of wedlock. But in making contraceptives easier to obtain, Brennan and the Court did not consider how their decision might lessen that stigma.
Would the Court’s decision in Eisenstadt be interpreted to mean that all sexual relations, including those outside marriage, were now “legitimate”? If so, that perception would surely contribute to more people engaging in sexual relations outside marriage, including people who might be lax, careless, or altogether feckless in using contraceptives. Thus, the greater availability of contraceptives seems, paradoxically, related to a greater incidence of out-of-wedlock births in America. Even though correlation does not prove causation, the statistics suggest a link, as the percent of births to unwed women in America has risen from 12.4 percent of all births in 1972 (when Eisenstadt was decided) to 39.7 percent in 2007: hardly a salutary development for America’s children.
Brennan and the Court also would have done well to consider the effects of their decision on marriage and divorce rates. When contraceptives were not readily available to the unmarried, marriage had a special status. Almost all Americans deemed marriage the only morally legitimate place to experience the pleasures of sexual intimacy. But if contraceptives became widely available to all—as they soon would—marriage would lose its special status. From this perspective, Eisenstadt can be read as an invitation for adults in America to experiment with sexual relations outside of matrimony. Thereafter, young adults would be less likely to get married—and married persons would be more likely to divorce—knowing that the special pleasures of marriage (and none of the responsibilities) could be enjoyed elsewhere.
Making matters worse, the Court expanded the right to privacy in Carey v. Population Services International (1977). Here the Court invalidated a state law that banned advertisements for contraceptives, including displays in stores. In addition, it struck down a prohibition on sales or distributions to minors under the age of 16, as well as a requirement restricting distributions of contraceptives to licensed pharmacists. Writing for the majority in Carey, Justice Brennan cited as precedent Planned Parenthood of Central Missouri v. Danforth (1976), where the Court ruled that states may not prevent minors from procuring an abortion or require “parental consent” before doing so. On that basis, Brennan argued that states could not ban the distribution of contraceptives to minors.
The Court’s ruling in Carey provoked a stinging dissent from Justice William Rehnquist, who protested the Court’s repeated encroachments on the legislature’s terrain:
There comes a point when endless and ill-considered extension of principles originally formulated in quite different cases produces such an indefensible result that no logic chopping can possibly make the fallacy of the results more obvious. . . . The majority of New York’s citizens are in effect told that however deeply they may be concerned about the problem of promiscuous sex and intercourse among unmarried teenagers, they may not adopt this means of dealing with it. The Court holds that New York may not use its police power to legislate in the interests of its concept of public morality as it pertains to minors. The Court’s denial of a power so fundamental to self-government must, in the long run, prove to be a temporary departure from a wise and heretofore settled course of adjudication to the contrary.
Rewriting Obscenity Law
The Supreme Court’s invalidation of state laws regulating contraception did not occur in a vacuum. As the emergence of the “right to privacy” would suggest, the United States was becoming a sexually more permissive society. In 1957, eight years before Griswold, the Supreme Court decided three important cases dealing with the law of obscenity. Although the decisions affirmed that obscene materials do not enjoy constitutional protection, the Court changed the definition of obscenity so much and so quickly that the prosecution of obscenity essentially ceased. The constitutional standard became so porous that winning convictions became almost impossible.
This development affected the American family in more ways than one. The pledge of sexual fidelity that both brides and grooms typically take during a wedding ceremony is harder to honor in a society where pornographic images are ubiquitous. This is because pornography excites lust while ignoring the sundry duties associated with human sexuality.
Some might say that pornography is harmless because it is a realm of pure fantasy. Yet the very fact that pornography always involves fantasies helps to explain why it must be regulated. Some sexual boundaries must be drawn, even in the realm of fantasy, as the legal concept of “consent” illustrates. Engaging in sexual relations with another person without his or her consent is a crime known as rape. Given that all societies designate some persons as sexually off limits to others, why should the law condone fantasies in which those limits are ignored, derided, or ridiculed? Thus, salacious pictures or cartoons encouraging men to have intimate relations with minors or other women who are legally off limits to them are immoral and should be criminalized in the United States.
Invariably, pornography involves the perception of other persons, especially women, as objects of potential gratification. As political theorist Harry Clor notes, pornography is characterized by “graphic and detailed portrayal of sex acts without love or affection. . . . The passion depicted and solicited is a thoroughly depersonalized sexuality.” There is a desire for intimacy with and perhaps even possession of others but “without regard for the[ir] personalities.”
While a full assessment of pornography lies beyond the scope of this essay, the changing obscenity standard for adults, as well as the difficulty of “shielding” minors from pornography that is not obscene or prohibited by law, deserve attention. During the Founding era, obscenity was broadly understood as anything contrary to public morals. Beginning in the middle of the nineteenth century, both state and federal legislators sought to give greater specificity to that idea. After the Civil War, most federal courts followed the standard put forth in Regina v. Hicklin (1868), a British case involving pornographic postcards. The test for obscenity was whether “the tendency of the matter . . . is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”
The Supreme Court repudiated the Hicklin standard in 1957 in both Butler v. Michigan and Roth v. United States. The effect of Hicklin was to “reduce the adult population [of Michigan] to reading only what is fit for children.” The Court’s new obscenity test, put forth in Roth, was “whether to the average person, applying contemporary community standards, the dominant theme of the work as a whole appeals to the prurient interest.” For the next sixteen years, the Supreme Court tinkered with this test, before adopting a new standard in Miller v. California (1973), which remains valid to this day. It adjudges materials obscene if the following conditions obtain:
(a) whether “the average person, applying contemporary community standards” would find that work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Note that the “average person” mentioned here is an adult, not a child. Furthermore, “community standards” refers to a community composed exclusively of adults. Since real communities are composed of adults and children, the new obscenity standard raises the question (without really answering it) of how a community is to shield children from pornography.
Since Miller v. California and its companion case Paris Adult Theatre v. Slaton, liberal justices on the Supreme Court have tried to reassure the public that such shielding is uncomplicated. Dissenting in Paris Adult Theatre, Justice Brennan proposed that all obscenity prosecutions cease because of the ambiguity in every attempt to define “obscene.” He merely stipulated that objectionable materials not be distributed to minors or foisted upon “unconsenting adults.” But this proposal could never work. How can society spare children exposure to objectionable materials unless it first defines what is “objectionable”? Defining that term, however, entails some restrictions on adult speech, which is just what Brennan sought to avoid.
Restrictions on adult speech do not necessarily entail censorship. Practical compromises exist. But in two cases decided in the past decade, the Supreme Court struck down federal legislation to protect children, even though the laws only modestly burdened adult free-speech rights. In United States v. Playboy Entertainment Group (2000), the Court invalidated a law intended to minimize the problems linked to “signal bleed” on cable television. So that non-subscribers would be less exposed to unwanted sexual programming (including hard-core pornography), federal regulations required that such programming appear between 10 p.m. and 6 a.m. The Court ruled that this “safe harbor” period suppressed speech, even though subscribers were free to record the programming and view it at more convenient times. In Ashcroft v. American Civil Liberties Union (2004), the Court struck down the Child Online Protection Act, which limited minors’ access to commercial pornography on the Internet. The Court invalidated the act because Congress did not use the “least restrictive means” to achieve its goal. Yet adults wishing to view such websites were only required to give some form of positive identification (typically a credit card number).
These two decisions have led many observers to conclude that the Court is indifferent to the harms inflicted on the most impressionable members of American society. If pornography can harm adults by exciting lust and leading passion to overcome reason, it can do even more damage to young persons, in whom the faculty of reason is still developing. Most American jurists previously understood this. But in recent decades, various justices of the Supreme Court seem blind to this danger. Thus, one may ask whether the next few generations of Americans, who cannot easily escape the proliferation of pornography, will be sufficiently mature to assume the basic responsibilities of marriage and parenthood.
‘Gay Rights’ and the American Family
The Supreme Court’s use of judicial review to strike down laws regulating contraception and pornography illustrate how the Court has advanced the sexual revolution in different ways. What comes next? The Court is the only organ of government that could mandate same-sex marriage in all fifty states. While the discussion of how the Court might do this engages many legal scholars, a more important matter is why permitting the “marriage” of two persons of the same sex would further damage marriage as a vital social institution.
Many proponents of same-sex marriage, including Jonathan Rauch, believe that changing marriage law to embrace such partnerships would strengthen matrimony as an institution. Yet the lack of commitment to sexual exclusivity among many homosexual-rights activists raises legitimate doubts about this view. Pointing out the extent of promiscuity among homosexuals cannot be dismissed as the perpetration of a baseless prejudice or stereotype. As Robert P. George and I have noted, some prominent activists are remarkably candid in expressing indifference or hostility to the norm or concept of sexual exclusivity. An example of this tendency is David M. Halperin’s book, What Do Gay Men Want?
Apart from the views of activists and self-proclaimed “queer theorists” like Halperin, the norm of sexual exclusivity does not seem to command widespread respect among American homosexuals. In a survey of same-sex couples in Massachusetts published in 1999, sociologist Gretchen Stiers found that only 35 percent of the women and 10 percent of the men believed that a “committed” intimate relationship entails sexual exclusivity. Michelangelo Signorile’s Life Outside provides even more evidence of the aversion to the norm of sexual fidelity among those who engage in homosexual relations. Thus, a dispassionate assessment of the evidence suggests that the views of someone such as Jonathan Rauch—whose commitment to sexual exclusivity strikes most commentators as genuine—are atypical.
Marriage requires the norm of sexual exclusivity. Not only is it grounded in the sexual and biological complementarity of husbands and wives, but the norm is also meant to protect the vulnerable—especially children. Moreover, because the great majority of American men and women get married before the age of 40 and procreate, the norm of sexual exclusivity serves important social goods. Spouses sometimes fail to honor the norm in practice, yet they nonetheless affirm the ideal. Even young people who may have been sexually permissive in college seek to honor the norm once they become engaged to be married. This nearly universal acceptance of sexual exclusively among those who accept marriage as the union of one man and one woman stands in vivid contrast with the widespread rejection of the norm among homosexuals. This glaring difference suggests that the attempt to equate same-sex partnerships with marriage in the law will erode the public’s understanding of marriage as entailing a commitment to sexual exclusivity.
None of this may matter to the Supreme Court. The justices seem more interested in tackling these controversies rather than allowing the states to function as laboratories of democracy and resolve the relevant matters themselves. In two recent rulings, the Court appears to have laid the groundwork for imposing same-sex marriage on the nation. In Romer v. Evans (1996), the Court invalidated an amendment to the Colorado state constitution that prohibited any locality from conferring protected or “non-discriminatory” status on homosexuals. In the judgment of the Court, the amendment was motivated by “mere animus.” In Lawrence v. Texas (2003), the Court invalidated a statute criminalizing homosexual sodomy. In the majority opinion for Lawrence, Justice Anthony Kennedy wrote that the ruling does not concern the question of same-sex marriage. His reassurance, alas, means little. After all, the Lawrence decision comes from the same line of cases as Griswold, Eisenstadt, Roe, and Carey.
Dr. Tubbs, a fellow of the Witherspoon Institute in Princeton, New Jersey, is assistant professor of politics at The King’s College in New York City. His book, Freedom’s Orphans: Contemporary Liberalism and the Fate of American Children, was published by Princeton University Press in 2007.