It's been difficult for me while visiting Canada to try to divine, from Canadian news, exactly what is going on in the United States, but it has been reported here that John Roberts may not be the monster that everyone fears. He has, it seems, offered that the "right to privacy" that the Supreme Court found in Griswold vs. Connecticut may be based on sound judicial reasoning. Not Constitutional reasoning -- for no such right is to be found there -- but judicial reasoning based upon features of the common law.
That case involved the scotching of a Connecticut law that prohibited the sale of contraceptives. If I remember correctly, the law had long lain unenforced. That does not mean it was idle: it expressed the people's opinion on contraception, and no doubt it depressed the sale of the pharmacopia of contraceptive pills and poisons and balloons. Nevertheless, the Supreme Court ruled that the state could not intrude itself upon the sacrosanct realm of the marriage bed. True it is -- it was the state's interest in upholding the sanctity of marriage that was put forward by Justice Douglas as the grounds for legalizing contraception.
Now it is at least a form of legal reasoning to argue that there are all kinds of protections of marriage built into the common law, including even the assumption that marriage is holy. A wife may not, for instance, be required to testify against her husband. But it is remarkable to observe with what breathless haste the courts then abandoned any touching regard for marriage, demoting it in the Lee Marvin case to the status of a shack-up, and in Roe v. Wade ripping from the husband any say in the matter of his wife's decision to kill their unborn child. Perhaps that is because in each case legal reasoning of a sort was put forward for the nonce, without too much concern either for consistency or for that holiness that so overawed the Court in Griswold.
In saying that Griswold was based on at least some shade of legal reasoning, I don't imply that the decision was sound. For the Court assumed what it could not have any grounds or any expertise for assuming, namely that the holiness of marriage would actually be safeguarded by making contraceptives free to all. The Court was well aware that you could not sell contraceptives only to married people; that would be both discriminatory and unenforceable. The result was what we see now: people delay marriage longer and longer, enjoying the marital act without having to sacrifice themselves for the marital reality; and inevitably the tricksy devices will fail, or people lulled into a false sense of security fail to use them, and millions of children are born out of wedlock.
Surely that could have been predicted even back in those days -- and it was predicted, a few years later, by Pope Paul VI. Essentially, then, the Court decided that marriage was such a holy institution, and the relations between husband and wife were so private, that husbands and wives and everybody else in Connecticut could not preserve what was then a rather modest law designed to -- to protect the institution of marriage.
The Court could well say that the Connecticut law would not in fact protect marriage; could say it then, perhaps, blocking their ears with wax and binding their eyes with blindfolds. But if that was the Court's position, then the Court was no longer a Court, but a board of social work, a town council for the country, a legislative body made of unelected officials with no better insight into the subtleties of the relations between the sexes than that possessed by your next door neighbor. Perhaps John Roberts reserved for himself all kinds of qualifications and demurrals in seeming to approve of that case. But it was that case, and not Roe v. Wade, that first ensconced in American jurisprudence the fundamental principles of the sexual revolution.
Christians would do well to reconsider whether God would permit a thing whose consequences would be so widespread and so devastating. I speak in charity here; I think the matter requires some deep and humble rethinking. No comparisons with Prohibition, please: for a little wine is good for the stomach, and Jesus did not turn the fruit of the vine into water. Alcohol is a perilous good that can be abused. Contraception, a good that can be abused? What good? And how great the evil that has come! I hope that Judge Roberts sees this; we have a long, long way to travel back home from our far country.
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