Sex, Death, and the Courts

Compassion in Dying v. State of Washington, 79 F. 3d 790, United States Court of Appeals, Ninth Circuit (1996)

Quill v. Vacco, 80 F. 3d 716, United States Court of Appeals, Second Circuit (1996)

Romer v. Evans, 116 S. Ct. 1620, United States Supreme Court (1996)

Once again American courts are at the center of bitterly divisive moral controversies, this time about euthanasia and homosexuality. Millions of people think that doctors are murderers if they help patients, even those dying slowly in great pain, to kill themselves; the American Medical Association has just confirmed its longstanding opposition to euthanasia, and most states have made assisting suicide a crime. But last March, in a decision that would have seemed incredible a few years ago, the Ninth Circuit of the US Court of Appeals declared that Washington State’s law forbidding assisted suicide was unconstitutional, and a month later the Second Circuit held New York’s similar law unconstitutional as well. The Supreme Court has not yet indicated whether it will hear appeals from these cases. It is by no means certain that the Court will ultimately confirm them. But if it does, judges will have brought about another social revolution.

In May the Supreme Court considered a different social problem: how far states are free to discriminate against homosexuals. Colorado voters had enacted a sweeping amendment to that state’s constitution, declaring that no law protecting homosexuals from discrimination hitherto or henceforth enacted in the state or any part of it would be valid. That struck many constitutional experts as an appalling interference with normal political practice—why shouldn’t homosexuals be as free as other groups to campaign for laws protecting their interests in local and state legislatures?—but the experts were doubtful that the Supreme Court would invalidate what Colorado had done. The Court had itself declared, in Bowers v. Hardwick in 1986, that states could make homosexual sex a crime, even between consenting adults. How could it now declare that a lesser and more speculative burden, which only prevented special legislation in favor of homosexuals, was unconstitutional? But in a 6-3 decision it did so declare, and Justice Scalia, in an outraged dissent, accused it of taking sides in a “Kulturkampf,” or culture war, that it had no business joining.

A common issue runs through these three recent decisions. May a “moral majority” limit the liberty of other citizens on no better ground than that it disapproves of the personal choices they make? That was the central question in the assisted suicide cases. Though almost all Americans agree that human life is sacred in some way, they disagree about whether it follows that people must never kill themselves, even to avoid terrible pain or crippling indignity and even when they will soon die anyway. Some think it degrades life to end it prematurely, even in those circumstances; others think it degrading not to die in dignity when further life would be appalling. Should that decision be made individually, each person deciding for his own life out of his own conviction? Or should it be made collectively, so that the convictions of the majority are imposed even on those whose most basic beliefs are thereby compromised?1

Sexual morality is also central to people’s lives and personalities. Should adults…

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