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FIRST-PERSON: Full circle, to same-sex ‘marriage’

KANSAS CITY, Mo. (BP)–When several municipalities issued marriage licenses for “same-sex couples” in direct contradiction to the civil codes of their individual states earlier this year, local magistrates took the exercise of autonomy to a new level and independently established community standards.

The actions by the local magistrates in many ways mimic the activism of the federal judiciary. In fact, the broadened concept of autonomy that dominates a great deal of civil discourse has been stitched together in a rather piecemeal fashion through various court decisions. A brief survey of these rulings demonstrates that autonomy was introduced as a way of securing certain contraceptive rights, was broadened to include abortion, and expanded further to include homosexuality. Thus, the flow has been from sexual liberty to abortion to greater sexual liberty.

Poe v. Ullman, 1961

This case is seminal for radical notions of autonomy in American jurisprudence because it is the first case in which a Supreme Court justice referred to a constitutional right to privacy. The case revolved around a Connecticut law that prohibited both the use and distribution of contraceptive devices. The court dismissed the case by a 5-4 margin because no one had actually been prosecuted under the law. However, Justice John Harlan stated in his dissent, “I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.” Thus, the concept of a “right to privacy” made its official entry into American legal discourse.

Griswold v. Connecticut, 1965

This case is directly related to Poe v. Ullman. Estelle Griswold, executive director of Planned Parenthood of Connecticut, and Charles Lee Buxton, the head of obstetrics and gynecology at Yale, opened a clinic for the purpose of inviting prosecution under the law in question and were indeed convicted of violating the Connecticut contraception law. In a 7-2 decision, the Supreme Court overturned their conviction and declared the Connecticut law unconstitutional. The right to privacy which Justice Harlan referred to in his dissent in Poe was affirmed as a constitutional right. Writing for the majority, Justice William O. Douglas said the law violated “the zone of privacy created by several fundamental Constitutional guarantees.”

Roe v. Wade, Doe v. Bolton, 1973

In these landmark cases, the Supreme Court specifically referred to Griswold and expanded the right to privacy from contraception to abortion. When taken by itself, Roe seems to allow some prohibition of late-term abortions. However, the companion decision Doe v. Bolton defined “mother’s health” so broadly that virtually no restraint on abortion remained.

Planned Parenthood v. Casey, 1992

This ruling came after 12 years of Reagan/Bush appointees and pro-life groups hoped Roe would be overturned. Instead, the core holding of Roe was affirmed, but the basis of abortion rights was shifted from a supposed right to privacy to the more explicit liberty interests of the Fourteenth Amendment. The defining passage in Casey goes far beyond issues of civil liberty and enters the domain of explicit and radical autonomy:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

In their attempt to articulate certain rights, the justices actually create a limitless category. This global statement about defining “one’s own existence” makes for fine rhetoric in a college essay but is out of place in a legal decision.

Lawrence v. Texas, 2003

In June 2003, the Supreme Court declared a Texas law criminalizing sodomy unconstitutional. The rationale for the decision was an expansion of the precedent set in Casey. In fact, the court detailed the outline presented here from Griswold to Roe to Casey and concluded that de-criminalizing certain sexual behaviors is the logical extension of the version of autonomy articulated in the paragraph from Casey noted above. Commenting on the famous quote from Casey, the court said, “Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do.”

Note the use of the word autonomy by the court. By “autonomy” the court does not mean just freedom from coercion, but it advocates a particularly radical form of autonomy that rejects any moral constraints. The Massachusetts Supreme Judicial Court seized upon this expansion of autonomy in November, 2003 and declared that limiting the rights of marriage to heterosexual couples “arbitrarily deprived” same-sex couples of a basic right. On May 17 of this year, state-approved same-sex “marriages” began in Massachusetts.

The concept of “autonomy” has come full circle in American jurisprudence. Under the nomenclature of “right to privacy,” the concept was used to expand contraceptive rights in the 1960s; during the 1970s, the right to privacy was expanded to include abortion on demand; in the Casey decision of 1992, the “right to privacy” morphed completely into libertarian autonomy as a basis for depriving pre-born humans of basic rights. Finally, the expansion of autonomy witnessed in the abortion debate was used to justify sexual libertinism and the re-defining of marriage.

Based on this new expansive view of autonomy, one is left to wonder if any limits at all will be maintained in civil codes pertaining to sexual expression or bioethics. Autonomy is viewed as a morally good goal to be achieved for its own purposes. Yet, even if certain forms of autonomy are a given as individual rights, is it possible that some expressions of autonomy are socially destructive?

The overall witness of Scripture casts a wary eye toward the unrestrained use of freedom. While a biblical anthropology exalts the dignity of man as an image bearer, it is simultaneously true that humans are fallen and that it is impossible for people not to sin. Sin expresses itself in self-centered behavior and the exploitation of others (Romans 1:24–32).

An example of a society based on radical autonomy is found in Judges, chapters 17–21. These chapters are filled with violence, sexual vulgarity, confused leadership and overall societal chaos. These chapters also are bracketed by the phrase, “In those days, Israel had no king, everyone did what was right in his own eyes” (Judges 17:6 & 21:25).

In a similar way, the Supreme Court decisions of the last 40 years advocate a form of self-centered moral evaluation devoid of transcendent moral accountability, opening the way for even more bioethical and sexual “freedoms” to follow.
J. Alan Branch is vice president for student development at Midwestern Baptist Theological Seminary in Kansas City, Mo.

For more information about the national debate over same-sex “marriage,” visit

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  • J. Alan Branch