Jul 29, 2005  |  By: CHRIS CRAIN  | COMMENTS     

KNOW JOHN Roberts, the president’s nominee for a seat on the U.S. Supreme Court. Not personally, but I know him, or at least I can relate to him.

He and I both grew up as a part of the same comfortable American majority — white, male, middle to upper-middle class, Christian — and that can shape your worldview every bit as much as growing up as a racial or religious minority, or a woman.

We learn to trust institutions of authority and embrace this country’s Christian heritage because their rules are our rules, and they work well for us. Contrary to criticism from the left, we don’t generally live by one set of rules and seek to impose another set on others.

But we also don’t feel the true sting of those rules because they never stand in the way of our own “pursuit of happiness.” We never face the agonizing choice of terminating a pregnancy, or struggle to find happiness as a gay American.

Well that, of course, is where John Roberts and I part ways.

But I wasn’t dealing with being gay when I was in law school (the same law school that Roberts attended), working on a law journal published by the Federalist Society (the same organization that claims Roberts as a member, something he has shied away from acknowledging).

There was universal agreement among us in those days that Roe vs. Wade, the landmark abortion case, was decided incorrectly. I have absolutely no doubt that Roberts feels the same. The only disagreement we had in those days was over what case should be used to overturn it.

As part of the majority, we rejected the victimization rhetoric of minority groups and trusted fully in majority rule. Liberal judges who impose on the majority their own ideas were legislating from the bench, and presented a much greater threat to freedom.

So for us, limiting the role of the judiciary was an important way of defending freedom and democracy, not a zealous pursuit of minority oppression. It’s important to understand that way of thinking, as we decide how we feel about Roberts sitting for two or three decades on the nation’s highest court.

THERE IS NO right to abortion written into the Constitution. There is also no right to sodomy, whether of the gay or straight variety. There’s no right to buy or use condoms or birth control, either.

For some conservatives, that pretty much ends the inquiry. They point out that when the framers of the 5th and 14th amendments wrote that our government — the majority — cannot “deprive any person of life, liberty, or property, without due process of law,” they could not have imagined how judges have interpreted their words for the past 40 years.

From that constitutional protection of “liberty” against arbitrary governmental interference, the Supreme Court has fleshed out a “right to privacy,” starting with Griswold vs. Connecticut, the contraception case in 1965. The idea behind this privacy right is that certain decisions are so personal, so private and so at the core of an individual’s “liberty,” that the government cannot interfere with them without a good justification.

In 1973, the court in Roe vs. Wade added “the right to choose” an abortion to that list of core personal decisions. But in 1986, the court drew the line, refusing in Bowers vs. Hardwick to add “homosexual sodomy” as a protected constitutional right.

Happily, the court threw out the Bowers decision two years ago, in Lawrence vs. Texas. In that case, five justices agreed that the decision by consenting adults to engage in private sexual conduct was too intimate, too much at the core of “liberty,” for the government to interfere on the basis of nothing more than the majority’s view of morality.

In a stinging dissent, Justice Antonin Scalia wrote on behalf of Chief Justice William Rehnquist and Justice Clarence Thomas that the logic of the majority’s decision put outside the reach of the democratic majority much more than contraception, abortion and sodomy.

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity,” Scalia wrote, can only be justified as the imposition of majority views of sexual morality. He’s wrong about bigamy, incest and bestiality, but otherwise he’s got a point.

FOR THOSE KEEPING track at home, that’s five votes on the Supreme Court for a “right to privacy” that puts outside the reach of the majority these intensely personal, intimate decisions, and three votes against.

Who’s ...