Privacy rulings - a tale of two eras

`IN constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.'' (US Chief Justice Warren E. Burger in concurring opinion, Bowers v. Hardwick, 1986.) ``... The concept of liberty ... embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution.'' (Associate Supreme Court Justice Arthur J. Goldberg in concurring opinion, Griswold v. Connecticut, 1965)

In different decades, Supreme Court Justices Burger and Goldberg have each made their mark in privacy decisions.

Today the two are the only living former members of the high court.

Although the cases and circumstances contrasted sharply, so did the judicial philosophies of the two justices in regard to privacy.

Appointed by President Nixon as chief justice in 1969, Mr. Burger served until recently, retiring to take up his post as head of the bicentennial of the nation's Constitution. A conservative, he was reluctant to expand judicial power and assign to the Constitution that which is not specifically spelled out in it. Further, Burger has considered traditional moral values, especially in rulings relating to social conduct.

Mr. Goldberg, an appointee of President Kennedy, had a much shorter stint on the court, serving from 1962 to 1965. He left the tribunal to later serve as US ambassador to the United Nations. An unapologetic liberal, Goldberg was a judicial activist who often associated himself with the philosophies of fellow Associate Justices William O. Douglas and William J. Brennan Jr.

At the end of last term, Burger voted with a 5-to-4 majority to uphold a Georgia statute outlawing homosexual relations between two consenting adults. This state law, the court decided, did not violate the fundamental rights of homosexuals.

He wrote: `` ...The proscriptions against sodomy have very `ancient roots.' Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of civilization....

``To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.''

Associate Justice Harry Blackmun, leading the dissent, insisted that the issue before the court was not homosexual rights - but privacy.

Quoting a 1928 ruling of Justice Louis Brandeis, Justice Blackmun said that this case is about ``the most comprehensive of rights and the right most valued by civilized men,'' namely, ``the right to be let alone.''

Goldberg was also voting with the majority in Griswold - where a 7-to-2 ruling struck down a longstanding Connecticut law that forbade the use of contraceptives and distribution of information on such devices.

The issue here was ``marital privacy'' - but Goldberg says he would apply the same constitutional principles to Hardwick.

He used this case to make his point that the right of marital privacy is, in effect, enabled through the Ninth Amendment, which holds that ``the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.''

``The concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights,'' Goldberg wrote in Griswold.