The Right to Privacy - A Response

Yesterday Rob asked "where exactly does the right to privacy's development deviate from the Catholic worldview?"  I look forward to hearing the responses of others (bloggers and readers).

My own response is multi-layered.  At a separation of powers level, I would suggest that the Court has deviated from a Catholic worldview by creating a constitutional right to privacy in "interpreting" a Constitution that does not have one.  A Catholic worldview respects the authority of various offices of power, and it seems to me that the Court in creating a right to privacy has failed to respect the authority of the people of the United States to speak through their legislators.  In short, the Court has exceeded its authority from my judicial minimilist perspective.  The Meyer and Pierce opinions appeal to me, and I would like to find a way to reconcile them with my understanding of the judiciary, but to date I have not been successful.

At a prudential level, only Roe and the other abortion cases deviate from a Catholic worldview.  Lawmakers may decide that prudence dictates that the state not use its police powers to outlaw contraceptive use (for married couples or even unmarried individuals) or homosexual sodomy, leaving individuals as free moral agents responsible for their own moral development.  A state is not free, however, to license free moral agents to intentionally kill innocent human life.

At an anthropological level, I would suggest that Griswold, Eisenstadt, Lawrence, and the abortions cases all deviate from a Catholic worldview.  Griswold may be shrouded in language about the sacredness of the marital relationship, but its anthropology, which came to light in Eisenstadt, has been fully exposed in Casey and Lawrence, especially in the mystery passage.  This radical autonomy of self-creation is fundamentally at odds with a Catholic worldview.  As I have argued in Sex, Marriage, and Procreation:  The Judicial Decimation of American Family Law, Lawrence (and Goodridge) are logical extensions of Griswold.

Michael S.