[SOUND] I said that the Supreme Court since 1937 has followed a dual standard. On the one hand, if it's economic liberties, regulation of property, regulation of employment, rational basis review, then the government's likely to win. On the other hand, where fundamental rights are involved, then the court is going to use strict scrutiny, and then the government is much less likely to win. Indeed, the government is in all likelihood going to lose. The first area I talked about was economic liberties, the second area I want to talk about with regards to individual rights is privacy. Now what's interesting about privacy, is the word privacy is nowhere mentioned in the Constitution. And yet so many of the rights in the Constitution have a privacy component, freedom of speech, the ability to watch want you want, read what you choose in your home, is about privacy. I'd say the Second Amendment has a privacy dimension. But the ability of guns in a person's home, at least as the Supreme Court has recently interpreted it. The Third Amendment right, that a person cannot have soldiers quartered in his or her home, that's a privacy dimension. The Fourth Amendment, that limits searches and seizures by the government, is also very much about protecting privacy. And yet, privacy, as I said, is nowhere specifically mentioned in the Constitution. For over a century now, I guess we should say for almost a century now, the Supreme Court has been protecting aspects of privacy under the word liberty and the due process clause. So put it another way, the court is interpreted the word liberty to include a protection for the right to privacy. Privacy is actually an umbrella, it's used to describe a number of specific rights. And privacy here really means autonomy. It's not privacy in terms of the ability to keep things secret. It's the ability to protect aspects of autonomy from government interference. Let me be less abstract and more specific, and let me give you the examples of what the court's protected, and for that matter, not protected under the right to privacy. First, the court has said that the right to marry is a fundamental right. Because the right to marry is a fundamental right, the government can interfere with it only if the government needs strict scrutiny. The initial case defining the right to marry to be a fundamental right was ironically and aptly title Loving versus Virginia. Virginia had a law that prohibited interracial marriage, known as an anti-miscegenation statute. A challenge was brought to this. And the Supreme Court unanimously declared the Virginia law to be unconstitutional. In part, the court did so by saying that it was race discrimination. But the court also said, explicitly, that the right to marry is a fundamental right protected under the liberty of the due process clause. Another example of this was a case called Zablocki versus Redhai. Wisconsin had a law that said that if a parent was going to get a marriage license, none would be issued unless all of the parent's child support payments. Well, to date, so if a man was not married went to get a married license, but the man had children, maybe from a prior marriage, a non-marital relationship. The father there could not get a marriage license in the state of Wisconsin unless the father could show that all of his child support payments were up to date. Now, Wisconsin was acting out of the best for mothers. They wanted to make sure that there was adequate funds to be able to care for children. But the Supreme Court declared the Wisconsin law unconstitutional. The court reiterated that the right to marry is a fundamental right. The court said that while there's a compelling interest in making sure that children are cared for, there's less restrictive alternatives to the right. The government can achieve its objective in a means that less interferes with the right to marry. For example, the court said there could be more aggressive enforcement of child support laws. The most famous recent case dealing with the right to marry was on June 26th, 2015, the case was Obergefell versus Hodges. The Supreme Court, in a 5-4 decision, declared unconstitutional state laws in Kentucky, Michigan, Ohio, and Tennessee that prohibited same-sex marriage. Justice Anthony Kennedy wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito each wrote a separate dissenting opinion. Interestingly, I think even unexpectedly, Justice Kennedy's majority opinion focused primarily on the right to marry under the liberty of the due process clause. Said the right to marry has long been regarded as a fundamental right. He cited the cases I mentioned to you. Loving versus Virginia and Zablocki versus Redhai. In what I regard as the most important language in Justice Kennedy's opinion, he said same-sex couples or identically situated opposite couples, we had all of the reasons why marriage is a fundamental right. Justice Kennedy explained that we protect marriage as a fundamental right, because of its importance in individuals' lives, its role in the family, its significance for society. Justice Kennedy said same-sex couples are no different from opposite-sex couples. We had all of these reasons why marriage is a fundamental right. Thus the court found that all 50 states, all territories of the United States, must allow same-sex couples to marry. The court didn't specify what level of scrutiny it was using, didn't say it was rational basis review, didn't say it was using strict scrutiny. But what the court said was laws that prohibit same-sex marriage deny, interfere with the fundamental right to marry. Almost as an afterthought, the court also said that laws that prohibit same-sex marriage deprive same-sex couples of equal protection of the laws. So that's the first right protected under privacy, the right to marry. The second right is the right to procreate, the right to choose whether to have children. An initial Supreme Court case about this is one of the great embarrassments of American constitutional history. There's a case called Buck versus Bell in 1927. Carrie Buck was born in 1906 in Charlottesville, Virginia. She went through the eighth grade, which was customary then, and always got passing grades. Her mother was destitute and had no choice, but to put Carrie and Carrie's sister Doris into foster homes. Carrie remained with her foster parents. After finishing eighth grade, Carrie was performing chores around the house. When Carrie was 17 years old, she was raped by her foster father's nephew. She became pregnant as a result of the rape. Her foster parents were humiliated by her pregnancy. Her foster parents committed her to an institution the was called a home for the epileptics and feeble-minded. There, Carrie gave birth to a daughter. Virginia, not long before this, had adopted a so-called eugenics law. Virginia, like almost every state in the country at that point, adopted eugenics laws that allowed for involuntary surgical sterilization of individuals. Not long after the birth of Carrie Buck's daughter, Virginia began proceedings to have Carrie Buck surgically sterilized without her consent. A hearing was held. One of the witnesses at the hearing said he'd administered to Carrie an IQ test and she had a very low IQ. This was actually the initial form of an IQ test. Many years later, then Harvard professor, Stephen Jay Gould went and found Carrie Buck, and gave her a contemporary IQ test. And she had an IQ in the normal range. Additionally at the hearing, a woman testified that she'd examined Carrie's baby and something about the baby just didn't look right. On this basis it was ordered that a tubal ligation be performed on Carrie Buck, that she'd be surgically sterilized. She objected. She took her case all the way to the Supreme Court. She lost there. Justice Oliver Wendell Holmes wrote for the court. Holmes was among the most respected jurists to ever sit on the United States Supreme Court. But in some of the most offensive and inappropriate language from anywhere in the United States report the Supreme Court ruled against Carrie Buck, saying quote, three generations of imbeciles are enough. Approximately 60,000 men and women were subjected to involuntary surgical sterilization as a result of the eugenics movement and Buck versus Bell. Interestingly, just 15 years later, in 1942, in Skinner versus Oklahoma, the Supreme Court changed direction. Skinner involved an Oklahoma law that was adopted during the eugenics movement. It said that any person three times convicted of a crime involving moral turpitude would be involuntarily surgically sterilized. The Supreme Court declared the Oklahoma statute unconstitutional. Justice William O Douglas wrote for the court. He spoke eloquently about the importance of procreation in a person's life and for society. The court said the right to procreate is a fundamental right, the government can interfere with it only if the government meets strict scrutiny. Well, what changed from 1927 to 1942? In 1927 the court wasn't willing to respect any right with regard to procreation. By 1942, the court is declaring the right procreate is fundamental and striking down the so-called eugenics laws. Of course, what happens in the interim is the rise of Nazism. And Nazism embraces eugenics in the most abhorrent way. The United States, having fought so hard against Nazi Germany and everything that it stood for, also is rejecting the idea of eugenics by 1942. And so it's been the law ever since 1942 that the right to procreate is a fundamental right. The government can interfere with the ability of a person to have a child, only if the government meets when I called strict scrutiny, only if the government can show that its action is necessary to achieve a compelling government purpose.
