Sweet Land of Liberty (Or of ‘Intimate Relationships’?)

You may not have known it, but intimate relationships are at the heart of American liberty. So, at any rate, certain members of our Supreme Court would have us believe. Former Justice Harry Blackmun gave passionate expression to this view in the dissenting opinion he wrote in the case of Bowers v. Hardwick in 1986. To appreciate fully the fervor of his opinion you would have to read the whole of it, but here I will quote only a few key passages.

The issue in that case was whether a Georgia law that made sodomy a crime was constitutional. The 5-4 majority held that it was. The decision could easily have gone the other way; after his retirement from the Court, Justice Lewis Powell said that he thought he should have voted with the dissenters, who would then have been the majority.

Blackmun argued in his dissent that sodomy was not really the issue. Rather, he said, what was at stake here was “the fundamental interest all individuals have in controlling the nature of their intimate associations with others.” This interest is fundamental because “individuals define themselves in a significant way through their intimate relationships with others.” Furthermore, “much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.” The structure of an “intimate” act (i.e., whether it is heterosexual or homosexual) is not the determinative consideration in deciding the constitutionality of a law that forbids the act. What matters is whether the persons involved have freely chosen it. “Depriving individuals of the right to choose for themselves,” Blackmun declared, “…poses a far greater threat to the values most deeply rooted in our Nation’s history than toleration of nonconformity could ever do.”

A woman’s “right to choose,” which Blackmun had discovered or invented in Roe v. Wade, thus became everyone’s right to choose the kind of actions that enable him or her to discover his or her identity and so to define himself or herself. Some among us may be revolted by the notion that a person can accomplish this through oral and anal sex. But according to Blackmun, that is a matter of taste, about which reasonable people do not dispute. Such actions, for those so inclined, remain central to establishing their personal identity and the meaning of their lives.