The Supreme Court Invents Fundamental Right of Selfishness

It has not been uncommon for the Supreme Court to invent fundamental rights not found in the Constitution. Two Fundamental Rights the “right to marry (gay marriage)” and the “right to an abortion” make very little sense. In fact, the Court may have well combine these two rights into one: the “right to be selfish”. Let me explain further in this article. Both of these rights were born from the invented fundamental “right of privacy” decided in 1965 case Griswold v. Connecticut.

In 1973, the Court ruled in Roe v. Wade that women had the “right” to an abortion. This is selfish for two main reasons. First, a women can have an abortion for no reason other than she does not want the baby. A women has other alternatives such as putting the child up for adoption. Without even considering the fact that an abortion kills a living person, the choice of abortion is selfish. Secondly, a woman can have an abortion without notifying the father of the child even if the father is married to the women having the abortion. In other words, the decision is a selfish one because it only has to consist of one person to make a decision of such importance. In fact, in Planned Parenthood v. Casey, four dissenting members of the Court held a minor did not have to notify their parents to have an abortion.

The gay marriage case in 2015 Obergefell v. Hodges granted people the fundamental “right” to marry. The Court cited three marriage cases in their decision. In 1964, the case Loving v. Virginia ruled that interracial marriages were legal. In 1978, the case Zablocki v. Redhail the Court decided a state statute that denied a person from marrying because they owed child support was unconstitutional. In 1987, the case Turner v. Safley the Court held prison laws denying inmates the privilege of marriage was unconstitutional. However, these cases are much different than Obergefell. First, they were traditional marriage cases and secondly, people violating the laws in these statutes were subject to criminal charges. Another case, Windsor v. United States in 2013 ruled the federal law: The Defense of Marriage Act was unconstitutional. Obergefell and Windsor were unique for other reasons. Obergefell was one of many plaintiffs and if we include Windsor as a plaintiffs, all of the plaintiffs have something in common: their partners were dead. They filed suit not because of love but because they wanted the “benefits” or government entitlements that go along with marriage. Thus, marriage is not a discriminatory tradition, what is discriminatory are government laws interfering with marriage and placing entitlements to go along with the tradition. Both Obergefell and Windsor cases arguably had no standing in the Supreme Court since they were not facing any restrictions against their liberty: The plaintiffs did not face criminal prosecution, gay marriage was legal in many states, and even when California granted gay marriage partnerships equal benefits, that was not enough. What makes gay marriage selfish is their wanting government entitlements, it has nothing to do with love.

Marriage was just as vital in the colonial era as it is today but our founders make no mention of marriage in the Constitution. Fundamental rights should be something that is deep rooted in American history and this something gay marriage and abortion are not. Fundamental rights are for each person, not a group of people. Fundamental rights such as “liberty” protect each individual from government intrusions, restrictions, and discrimination. That is not case in either abortion (unless you consider the child) or gay marriage.

Although the Court cites the right to privacy in Griswold v. Connecticut in both cases, does privacy really apply? Other than trying to conceal having an abortion from a spouse, there is nothing private about abortion or marriage. This is the danger of inventing a broad and ambiguous Fundamental Right (privacy): it leads to other unwanted rights. Now what can we expect: the right to polygamy, the right to late term abortions, the right to euthanasia, birth quotas, sterilization, and so on.