Dworkin, Ronald - Sex, Death, and the Courts

12/11/2009

Sovereign Virtue, Harvard University Press, 2000, Ch 14

This is a chapter reviewing two strands of judicial interpretation of the rights enumerated in the US Constitution (and its amendments). The two topics that are used to reveal the tension between these interpretations are homosexuality and the right-to-die. Author argues that the 14th amendment is the 'most abstract source of these rights' (pg454), that is, rights not enumerated in the other amendments. Author frames these two issues as members of a larger set, that of an individual's right against the judgment of the majority about what is, by and large, an individual decision.

The 14th amendment offers two abstract and broad principles: that the state may not deprive a citizen of liberty with "due process of law" and that the state may not deny anyone "equal protection of the laws". This abstract language has both too broad and too narrow interpretations, yet the ones favored by judges seem to be two: 'historical' and 'integral'. The 'historical' interpretation is that individuals are protected with due process and equal protection on a limited number of rights that the American people historically and overwhelming have considered to be their rights. Author identifies Justice Byron White in the Bowers v Hardwick decision as a principal proponent of this interpretation. (pg454) The other interpretation, which the author calls the interpretation of 'integrity', is that the principles behind the enumerated (and common law) rights may, in some cases, rationally and logically suggest other rights that have not necessarily been considered rights previously. (pg455) Author sites Justice John Harlan as such an interpreter in a 1961 dissent of Poe v Ullman.

With these two interpretations in mind, author goes through supreme court decisions first about homosexuality in Colorado. Colorado amended its constitution to restrict any favorable discriminatory treatment to homosexuals, overturning some statutes instituted by some of the state's cities. The case of Evans v Romer was a challenge of the constitutionality of that amendment.

Using the 14th amendment's 'due process' clause, the strategy would go as follows: 1) show the law compromises a 'liberty interest'-- a constitutionally protected right, and if so, 2) show the law does not have enough legitimate state interest to pass a balancing test. (pg457)

Using the 'equal protection' clause, the strategy would be: 1) show that the law requires more than 'relaxed scrutiny', (rational basis) but instead 'strict' or 'heightened' scrutiny because it reduces the ability of a certain group to participate in the political process-- it systematically disadvantages a class. (pg58-9) This is commonly used in the case of 'suspect' classes like blacks due to this country's history of discrimination. (459-60) The strategy would be to claim that simple 'the prejudice and contempt' of a majority is sufficient to warrant 'strict' scrutiny of legislation that will affect them. (pg460-1)

When the case got to the supreme court, a separate amici curiae (friends of the court) brief was written in opposition to the law, which neglected the previous judicial frameworks: it argued instead that the law stops a class from being a class, which is a violation of equal protection. The actual supreme court decision, 6-3, was 'surprisingly bold' (pg463) because it said that the law did not even pass 'relaxed scrutiny' because it was based on nothing more "except animus toward the class it affects; it lacks a rational relationship to legitimate state interests" (pg464). Author considered this a victory for the 'integrity' interpretation.

The second topic considered is the right-to-die and assisted-suicide cases. Here, a supreme court decision of 9-0 against supporting such a right might seem like a resounding victory for the historicist approach, and the majority opinion of the court seemed like a straightforward historicisit reading-- inconsistent on principle, but in-line with history. What was interesting about the case was that the majority decision didn't represent 9 justices-- only 5. The others wrote their own opinions, and many of them revealed an 'integral' interpretation, but nevertheless held with the majority in this case. Author examines the different opinions and concludes that it isn't a knock-down victory for the historicist interpretation.