Wednesday, November 15, 2017

Roy Moore and 1965

Somewhere in the raging screed of horribleness that is Roy Moore's worldview, he recently came up with this:

“By 1962, the United States Supreme Court took prayer out of school,” he said. “Then they started to create new rights in 1965, and now, today, we’ve got a problem.”
The year 1965 is generally being understood by commentators to refer to the Civil Rights Act, which of course makes sense since Moore is clearly a white supremacist.

But historian Kevin Kruse makes the claim that it's more likely Moore that is referring to Griswold v. Connecticut, the 1965 Supreme Court case where the majority found the state had no compelling interest to keep married couples from purchasing contraceptives.

Kruse tweeted,
It's not a household name for many Americans, but Griswold...has long loomed large for the Religious Right, because it serves as the key legal foundation for Roe v. Wade (1973).

The Griswold case revolved around an ancient Connecticut law that banned the sale of contraceptives. In writing the decision, Justice [William O.] Douglas wanted to strike down the law on the grounds that it violated the right to privacy.

The problem, however, was that strictly speaking, no such right existed in the Constitution. But Douglas said an assumption that there really was a right to privacy could be found throughout the Bill of Rights.

Beyond the strict letter of those amendments, Douglas argued, the Court could see the right to privacy in the "emanations" from those amendments. (The 1st guaranteed freedom of association, the 3rd command of one's home, the 5th protection from self-incrimination, etc.)

Douglas likened the Bill of Rights to an umbrella that cast an even bigger shadow of protections, and located the right to privacy in that shadow as a "penumbral" right.

And importantly, that right to privacy then became a key foundation in later cases regarding sexual activity and, most notably for the Religious Right, the right to abortion as laid out in Roe.

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