Freedom of Intimate Association

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Since the 1960s the Supreme Court has decided scores of cases dealing with marriage and divorce, family relationships, the choice whether to procreate, and various forms of intimate association outside the traditional family structure. Although the factual settings of these cases and their opinions' doctrinal explanations have been diverse, in the aggregate they represent the emergence of a constitutional freedom of intimate association.

The Court had asserted as early as meyer v. nebraska (1923) and pierce v. society of sisters (1925) that the Constitution protected the freedom to marry and raise one's children, and skinner v. oklahoma (1942) had subjected a compulsory sterilization law to strict scrutiny. But the modern beginning for the freedom of intimate association was Justice william o. douglas's opinion for the Court in griswold v. connecticut (1965). Although that case involved a prosecution of the operators of a birth control clinic for dispensing advice on contraception and the means to achieve it, the focus of the opinion was a married couple's right to use contraceptive devices. Justice Douglas located that right in a "zone of privacy," created by "penumbras" of various specific guarantees in the bill of rights. He did not specify the scope of the new right of privacy, and one product of Griswold has been a distinguished body of literature rich with suggested approaches to that issue. In Griswold itself, however, the chief object of constitutional protection was the marital relationship.

Griswold has become a major precedent for several lines of doctrinal development. The right to marry has been recognized as a substantive due process right in loving v. virginia (1967) and zablocki v. redhail (1978). The right to use contraceptives has been extended to unmarried persons in eisenstadt v. baird (1972) on an equal protection theory, and even the right to advertise and sell them has been defended in carey v. population services international (1977) on the basis of the first amendment and the privacy right of potential buyers, married or not. These protections of intimate relationships outside marriage have been complemented by heightened scrutiny of legislative classifications visiting disadvantage on the status of illegitimacy. Griswold 's most famous doctrinal outgrowth was roe v. wade (1973), which squarely placed the new constitutional right of privacy within the liberty protected by substantive due process, and held that the right included a woman's freedom to choose to have an abortion.

Here as elsewhere, constitutional doctrine has followed in the wake of social change. After World War II the movement for racial equality accelerated, bringing new awareness and new acceptance of a cultural diversity extending well beyond differences based on race. By the 1970s the feminist movement had succeeded in engaging the nation's attention and changing attitudes of both men and women toward questions of "woman's role," and in particular toward marriage and the family. The white, middle-class "housewife marriage," with the father working and the mother and children at home in a one-family suburban house, may still be the image most often called to mind by general references to "the family." The image, however, represents less than half of America's population. The "wife economy" is now obsolete; increased longevity will place further strains on lifetime marriage; women now know they can choose marriage without motherhood, or motherhood without marriage; racial and ethnic minorities will not again accept the idea that the diversity of their forms of intimate association is merely pathological. Indeed, large numbers of middle-class white couples are openly living together without marrying. What has changed is not so much the fact of diversity as the range of the acceptable in intimate association.

A strong egalitarian theme runs through our society's collective recognition of these changes; it is natural that both due process and equal protection have provided doctrinal underpinnings for the freedom of intimate association. As abstractions, "liberty" and "equality" may sometimes be in tension, but here they have nourished each other. As the civil rights movement sought to advance equality under the banner of "freedom," so the abortion rights movement has sought a new status for women under the banner of "choice."

Taking account of doctrinal development in this area, the Supreme Court, in its opinion in Roberts v. United States Jaycees (1984), referred for the first time to a "freedom of intimate association." "[C]ertain kinds of highly personal relationships," said the Court, had been afforded substantial constitutional protection: "marriage; childbirth; the raising and education of children; and cohabitation with one's relatives." The Court noted that these relationships tended to involve relatively small numbers of persons; a high degree of selectivity in beginning and maintaining the affiliations; and "seclusion from others in critical aspects of the relationship." Their constitutional protection reflected "the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty."

For half a century the Court has performed much of its judicial interest-balancing by adjusting the standards of review of the constitutionality of legislation. As the Jaycees opinion noted, heightened judicial scrutiny results when the Court perceives the importance of the values or interests impaired when government restricts freedom or imposes inequality. The Court has spoken of procreation as a "basic" right, and has labeled "fundamental" both the right to marry and the freedom of choice "whether to bear or beget a child." To understand what these characterizations may imply for the constitutional status of other forms of intimate association, it is necessary to ask why reproductive autonomy and the freedom to marry are so important. To answer that question requires analysis of the substantive values that may be at stake in intimate associations.

The term "intimate association" is used here to mean a close and familiar personal relationship with another that is in some significant way comparable to a marriage or family relationship. Its connecting links may take the form of living together in the same quarters, or sexual intimacy, or blood ties, or a formal relationship, or some mixtures of these, but in principle the idea of intimate association also includes close friendship, with or without any such links. The values of intimate association are undeniably elusive; they are not readily reducible to items on a list. Yet such an exercise is implicit in any attempt to illuminate the principle underlying the decisions on marriage and reproductive choice. The potential values in intimate associations can be grouped in four clusters: society, caring and commitment, intimacy, and self-identification.

Intimate association implies some expectation of access of one person to another's physical presence, some opportunity for face-to-face encounter. A couple's claim of the right to live together, with or without a sexual relationship, directly implicates this interest in another's society; so does a divorced parent's claim of a right of access to a child in a former spouse's custody, or a prison rule wholly denying visitation rights. Other impairments of the interest in an intimate's society are indirect, as when welfare aid to a mother's family is terminated because she is living with a man. The latter case offers opportunity for manipulation; it might be characterized as a denial of no more than a money payment, or as a denial of the society of an intimate. To allow a claim of constitutional right to turn on such question-begging seems intolerable; yet that is just what the Supreme Court typically does in cases of indirect interference with the values of intimate association. Concededly, not every impairment of the freedom to enjoy an intimate's society requires the same degree of justification, but there is little to be said for distracting attention from substantive interest-balancing by engaging in definitional legerdemain.

For most people, mutual caring and commitment are the chief values of intimate association. Caring implies commitment, for it requires an effort to know another, trust another, hope for another, and help another develop. The commitment in question is not a legal commitment enforceable by law, but a personal commitment, the sense that one is pledged to care for another and intends to keep the pledge. It is possible to be committed to an association one has not chosen; a young child exercises no choice in forming an association with her family and yet may feel wholly committed to them. Still, the value of commitment is usually heightened for the partners to an intimate association when they know there is real and continuing choice to maintain the association. The caring partner continually reaffirms her autonomy and responsibility by choosing the commitment, and the cared-for partner gains in self-respect by seeing himself through his partner's eyes as one who is worth being cared for. Furthermore, although commitment means an expectation of constancy over time, it is not paradoxical to say that effective legal shelter for this value must offer protection to casual intimate associations as well as lasting ones. Such a casual association may ripen into a durable one, and the value of commitment is fully realizable only in an atmosphere of freedom to choose whether a particular association will be fleeting or enduring. Finally, to limit the law's protection to lasting intimate associations would require intolerable inquiries into private behavior and private intentions.

Intimacy, in the context of intimate associations, is more than privacy in its ordinary sense of nondisclosure. When we speak of intimate friends, or of persons who share an intimate relationship, we refer to the intimacy of a close and enduring association, that is, intimacy in the context of caring and commitment. This sort of intimacy is something that a person can share with only a limited number of others, for it requires time and effort to know another and deal with her as a whole person.

Intimate associations are powerful influences over the development of most people's personalities. Not only do these associations give an individual his best chance to be seen (and thus to see himself) as a whole person rather than an aggregate of social roles; they also serve as statements to others. As the legal consequences of cohabitation come to approximate those of marriage, and as divorce becomes more readily available, marriage itself takes on a special significance for its expressive content as a statement that the couple wish to identify with each other. The decision whether to have a child is also a major occasion for self-identification. To become a parent is to assume a new status in the eyes of oneself and others. Plainly the freedom to choose one's intimate associations is at the heart of this notion of association-as-statement. And, just as the freedom of political nonassociation is properly recognized as a first amendment right, the freedom not to form an intimate association is similarly linked to the freedom of expression.

These four sets of intimate associational values—society, caring and commitment, intimacy, and self-identification—coalesce in an area of the human psyche that is awkward to discuss in lawyers' language. Yet even before the Jaycees opinion the Supreme Court had occasionally suggested its awareness of the reasons why such values are important. In Eisenstadt, for example, Justice william j. brennan spoke of "unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Although the word "person" usually is no more than a prosaic reference to an individual, its use in this passage resonates in the registers of matters personal and the human personality. If freedoms relating to marriage and family and reproductive choice are "fundamental," the reason is that these concerns lie close to the center of one's sense of self.

Not all governmental restrictions on associational freedom are intrusive in the same degree on the values of intimate association. The constitutional freedom of intimate association is not a rule for decision but an organizing principle, demanding justification for governmental intrusions on close personal relationships in proportion to the magnitude of invasion of intimate associational values. One complicating feature of this interest-balancing is that the law's interference with the freedom of intimate association usually is not direct. Instead, government typically conditions some material benefit (employment, inheritance, welfare payments, Social Security) on the candidate's associations in fact or formal associational status.

In dandridge v. williams (1970), for example, a state proportioned welfare benefits to family size but set an absolute limit on aid to any one family. The Supreme Court, treating the law as a restriction on money payments and ignoring its potential effects on family size, subjected it only to rational basis scrutiny. In cleveland board of education v. lafleur (1974), however, pregnant school teachers were required to take a long maternity leave. The Court, emphasizing the right to procreate, rigorously scrutinized the law under the irrebuttable presumptions doctrine. This sort of question-begging without explanation, far from being aberrational, has been the norm for the Court's treatment of indirect restrictions on intimate association. It is not unusual for the Court to conceal its interest-balancing behind definitional assumptions.

When a state conditions a benefit on a formal associational status such as marriage or legitimacy of parentage, a further analytical complication arises. The state controls entry into the status as well as its legal consequences. Judicial evaluation of such a restriction on benefits must take into account the ease of entry. Alternatively, a law restricting entry into a formal associational status must be evaluated partly on the basis of the consequences of the status, including eligibility for benefits. The opportunities for circular reasoning are evident; only close attention to the associational values at stake will permit noncircular resolutions. The formal status of marriage, for example, must be seen not merely as a bureaucratic hurdle on the road to material benefits but also as a statement of the partners' commitment and self-identification.

In protecting the freedom of intimate association the Supreme Court has followed several different doctrinal paths. The Griswold opinion drew on the First Amendment's freedom of political association partly by way of analogy and partly in support of the Court's "zone of privacy" theory. Later decisions have both extended Griswold 's results in the name of equal protection and recharacterized its right of privacy as a substantive due process right. For a brief time in the 1970s the Court even used the rhetoric of procedural due process and irrebuttable presumptions to defend the freedom of intimate association—a development which some Justices called a disguised form of equal protection or substantive due process. Today the freedom's most secure doctrinal base is substantive due process; yet both the First Amendment and the equal protection clause counsel judicial sensitivity to the need to protect intimate associations that are unconventional or that may offend majoritarian morality. In a society that expresses its cultural diversity in a rich variety of family forms and other personal relationships, these constitutional claims of freedom and equality will overlap.

Whatever its doctrinal context, a claim to freedom of intimate association depends on the nature and magnitude of the intrusion into the substantive values of intimate association, weighed against the governmental interests asserted to justify the intrusion. To give life to this abstraction it is necessary to examine the freedom of intimate association in operation as an organizing principle in particular subject areas. The Supreme Court's decisions can be grouped in seven overlapping categories: marriage and husband-wife relations; divorce; nonmarital relationships; procreation; illegitimacy; family autonomy; and homosexual relationships.

The Supreme Court's clear recognition of a constitutional right to marry by no means forecloses a state from regulating entry into marriage. Some restrictions, in fact, promote the principle of associational choice: minimum age requirements, for example, or requirements demanding minimum competency to understand the nature of marriage. Other restrictions aimed at promoting public health, such as mandatory blood tests, also seem likely to pass the test of strict judicial scrutiny. It is less clear that the balance of state interests against the freedom of associational choice should uphold a prohibition against polygamy, or a refusal to allow homosexuals a status comparable to marriage, or a prohibition on marriage between first cousins. Yet it is safe to predict that homosexual marriage will not gain judicial blessing in the immediate future, and that the constitutionality of incest and polygamy laws will not be questioned seriously in any future now foreseeable. The Supreme Court, after all, is an instrument of government in a human society. Still, in theory, any direct state prohibition of marriage must pass the test of strict scrutiny, and indirect restriction on the right to marry requires justification proportioned to the restriction's likely practical effects as a prohibition.

The freedom of intimate association speaks not only to state interference with the right to marry but also to state intrusion into the relations between husband and wife. A marriage is more than a list of contractual duties; the partners deal with each other on many levels, both practical and emotional, and their relations are necessarily diffuse rather than particularized, exploratory rather than fixed. Spouses who are committed to stay together in an intimacy characterized by caring need to heal their relationship for the future, not settle old scores. Long before Griswold recognized a married couple's constitutional right to autonomy over the intimacies of their relationship, our nonconstitutional law largely maintained a "hands-off" attitude toward interspousal disputes. This tradition once supported a system of patriarchy now discredited; today the values of intimate association counsel the state to leave the partners to an ongoing marriage alone and let them work out their own differences—or, if they cannot, to terminate the marriage with a minimum of state interference.

Although the Supreme Court has not formally recognized a constitutional "right to divorce" comparable to the right to marry, both in principle and in practical effect such a right can be derived from the Court's decisions. The freedom of intimate association demands significant justification for state restrictions on exit from a marriage. The relevance to divorce of the associational value of self-identification is evident. Even the value of commitment bears on such a case, and not merely because divorce is the legal key to remarriage. For those who choose to stay married, their commitment is heightened by the knowledge that it is freely chosen. The Constitution apart, state laws setting conditions for divorce have virtually eliminated the requirement of a showing of one partner's fault. The restrictions that remain concern access to the courts, and involve limitations such as filing fees, as in boddie v. connecticut (1971), or residence requirements, asin sosna v. iowa (1975).

When a marriage terminates, nothing in the principle of associational choice militates against judicial enforcement of interspousal contracts governing the division of property. Once the union is dissolved, application of the usual rules of contract law to postdissolution obligations threatens none of the values of intimate association and demands no special justification. (Issues of child custody, which do require careful balancing of associational values, are discussed along with other parent–child questions.)

When a couple live together in a sexual relationship without marrying, the associational values of society, caring, and intimacy are all present in important degrees. Although the couple's association may not be so definitive a statement of self-identification as marriage would be, such a statement it surely is. Even the commitment implicit in such a union, although it may be tentative, usually is not trivial. If the couple see the union as a trial marriage, it takes on the instrumental quality that the Griswold court saw in sexual privacy. The Supreme Court's decisions on contraception and abortion have extended that right of privacy to unmarried persons. In 1968 the Court construed federal welfare legislation to prevent a state from terminating a mother's benefits merely because she had a man, not her husband, living in the house; Justice Douglas, concurring, would have held the state's attempted regulation of the mother's morals a denial of equal protection, by analogy to the Court's then recent decisions on illegitimacy. Some classifications based on marital status plainly are unconstitutional.

It seems no more than a matter of time before the Court, recognizing the expansion of the boundaries of the acceptable in intimate association, follows the logic of the contraception cases and holds invalid state laws forbidding fornication and unmarried cohabitation. Many lower courts have reached similar results, typically without addressing constitutional issues. Most of the cases have involved the claims of unmarried women denied employment, or child custody, or admission to the bar because they were living with men. The freedom of intimate association is, in important part, a product of the movement for equality between the sexes.

So are the Supreme Court's decisions on reproductive choice. "Birth control is woman's problem," said Margaret Sanger in 1920; it still is. The right to procreate, which another generation's Court called "one of the basic civil rights to man," is now matched with the constitutional right of man and woman alike to practice contraception and with a woman's right to have an abortion, even over her husband's objection. Although the right to choose "whether to bear or beget a child" is not reducible to an aspect of the freedom of intimate association, it is in part an associational choice. Given today's facility of contraception and abortion, generally one can choose whether to be a parent. The Skinner opinion properly connected marriage and procreation. An unmarried couple living together recognize this linkage when they decide to marry because they "want to have a family." Children are valued not only for themselves and the associations they bring but also as living expressions of their parents' caring for—and commitment to—each other. The decision whether to have a child is, in part, a choice of social identification and self-concept; it ranks in importance with any other a person may make in a lifetime.

Not only the right to be a parent, protected in Skinner, but also the right to choose to defer parenthood or to avoid it altogether implicates the core values of intimate association. Griswold and its successor decisions, defending these values in the context of nonassociation, protect men and women—but particularly women—against the enforced intimate society of unwanted children, against an unchosen commitment and a caring stained by reluctance, against a compelled identification with the social role of parent. Coerced intimate association in the shape of forced child-bearing or parenthood is no less serious an invasion of the sense of self than is forced marriage.

Griswold and its successors also protect the autonomy of a couple's association, whether it be a marriage or an association of unmarried intimates. The point was explicitly made in the Griswold opinion concerning marital autonomy, and Eisenstadt v. Baird (1972) effectively gave unmarried couples the same power to govern the intimacies of their association. What emerges from these decisions, along with Skinner and LaFleur, is not an absolute rule but a requirement of appropriate justification when the state burdens the decision whether to procreate.

The Supreme Court has focused on equal protection in dealing with the constitutionality of laws defining the incidents of illegitimacy. There is obvious unfairness in visiting unequal treatment on an illegitimate child in order to express the state's disapproval of her parents. Yet the freedom of intimate association suggests an additional perspective: the unfairness of state-imposed inequality between persons in traditional marriagefamily relationships and those in other comparable forms of intimate association. In particular, the illegitimacy laws discriminate against unmarried women and their children—as, indeed, such laws have done from their medieval beginnings. The principle of legitimacy of parentage assumes not only that a child needs a male link to the rest of the community but also that the claim of the child's mother to social position depends on her being granted the status of formal marriage. In historical origin and in modern application, the chief function of the law of illegitimacy is to assure male control over the transmission of wealth and status. Deviance from the principle of legitimacy is most likely in subgroups whose fathers lack wealth and status; it is no accident that the incidence of illegitimacy in our society is highest among the nonwhite poor.

As increased numbers of middle-class couples live together without marrying, surely there will be changes in the legal status of unmarried mothers and their children. In the perspective of the freedom of intimate association, the constitutional basis for the whole system of illegitimacy appears shaky. If the informal union of an unmarried couple is constitutionally protected, the relationship between that union's children and their parents is also protected. Significant impairment of the substantive values of such an intimate association must find justification, in proportion to the impairment, in state interests that cannot be achieved by other less intrusive means.

Ever since Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) judges and commentators have assumed that the Constitution protects the autonomy of the traditional family against excessive state interference. Those two decisions rested on substantive due process grounds, and they have been cited often by the Supreme Court during the modern revival of substantive due process as a guarantee of personal liberty. When a family is united concerning such matters as the children's education, only a compelling state interest will justify state interference with the family's choice.

When a family is not united, however, the constitutional principle of family autonomy is an imperfect guide. Generally, the law assumes that children prosper under their parents' control. For very young children, this assumption is little more than a corollary of the family autonomy principle. As children mature, however, it becomes sensible to speak of the continuing family relationship as a matter of choice. Within the family that stays together, parent–child relations are, from some point in a child's teenage years forward, a matter of intrafamily agreement. Even when parental discipline is the rule, it rests on the child's consent, once the child is capable of making an independent life. Not surprisingly, the Supreme Court held invalid a state law giving an unmarried minor female's parents the right to veto her decision to have an abortion. (See planned parenthood of missouri v. danforth.)

The freedom of intimate association thus counsels severe restrictions on the state's power to intervene either to enforce parental authority or to oppose it—just as considerations of intramarital associational choice and harmony dictate that state intervention into the husband-wife relationship be limited to cases of urgent necessity, such as wife abuse. Conceding that most children want and need parental discipline, it remains true that invoking the state's police officers and juvenile halls to enforce that discipline is destructive of the values of intimate association. For mature children, those values depend on their willingness to identify with their parents and to be committed to maintaining a caring intimacy with them. In cases of a parent's incapacity or serious neglect, state intervention into the zone of family autonomy may be constitutionally justified. Yet removals of children from parental custody and terminations of parental rights are extreme measures, intruding deeply into the values of intimate association—not only for parents but also for children. The most compelling justification is therefore required for so drastic a state intervention, justification found in the child's needs, not any interest the state may have in punishing parental misbehavior. The Supreme Court's refusal in lassiter v. department of social services (1981) to extend the full reach of the right to counsel to indigent parents in termination proceedings seems an unstable precedent.

While a marriage lasts, the law is no more likely to interfere in interspousal disputes over child-rearing than it is in other controversies between husband and wife. When a marriage ends, an agreement between the separating parents over child custody usually will prevail, absent some overriding factor such as the associational choice of a mature child. A custody contest upon divorce, involving competing claims of rights of association, demands discretionary, whole-person evaluations rather than application of specific rules of law. The Constitution comes to bear on such decisions only marginally, as appellate courts seek to assure that trial judges do, in fact, consider the whole persons before them and do not disqualify parents from custody by informally substituting unconstitutional "rules" for the discretion that is appropriate. Such a "rule," for example, might disqualify on the basis of a parent's race—or, as in palmore v. sidoti (1984), the race of the parent's spouse—or religion, or unmarried cohabitation, or sexual preference. Stanley v. Illinois (1972) is an instructive analogy; there the Supreme Court held that a law disqualifying a natural father from custody of his illegitimate child upon the mother's death was an unconstitutional irrebuttable presumption of unfitness.

It is now established beyond question that the "liberty" protected by the two due process clauses protects "freedom of personal choice in matters of marriage and family life"—Justice potter stewart's words, concurring in Zablocki v. Redhail (1978). If the logic of that freedom extends beyond formal marriage and beyond the nuclear family, the reason is that the human family is a social artifact, not an entity defined in nature. In moore v. city of east cleveland (1977) a plurality of four Justices admitted the traditional "extended family" into the circle of due process protection, and that opinion is now regularly cited as if it were an opinion of the court. The freedom Justice Stewart described is comprehensible only in the light of intimate associational values that are also found in families that depart significantly from traditional models. One result of the movement for women's liberation has been the increased adoption of alternative living arrangements: couples living together outside marriage; single mothers with children, sometimes combining with other similar families. Other groupings such as communes for the young and the old are responses to what their members see as the failings of traditional arrangements. These people do not risk prosecution under cohabitation laws or other "morals" statutes; they may, however, risk the loss of material benefits.

Any governmental intrusion on personal choice of living arrangements requires substantial justification, in proportion to its likely influence in coercing people out of one form of intimate association and into another. In department of agriculture v. moreno (1973) the Supreme Court demanded such justification for a law denying food stamps to households composed of "unrelated" persons, and found it lacking. Yet in Village of Belle Terre v. Boraas(1974) the Court made no search for justification beyond minimum rationality, and upheld a zoning ordinance designed to screen out nontraditional families and applied to exclude occupancy of a home by six unrelated students. In design, the Belle Terre ordinance was a direct assault on the freedom of intimate association, an attempt to stamp out forms of personal association departing from a vision of family life that no longer fit a large proportion of the population. Belle Terre 's standing as a precedent surely will weaken as the Court comes to take seriously its own rhetoric about "family" values in nontraditional families. One occasion for such rhetoric was the opinion in Smith v. Organization of Foster Families (1977), recognizing the values of intimate association in a foster family.

Laws prohibiting homosexual conduct are only rarely enforced against private consensual behavior. The middle-class homosexual couple thus have each other's society, including whatever sort of intimacy they want; they care for each other and are committed to each other in the degree they choose. What government chiefly denies them is the dignity of self-identification as equal citizens, along with certain forms of employment and other material benefits that may be reserved for partners to a formal marriage.

Whatever may have been the original purpose of laws forbidding homosexual sex, today one of their chief supports is a wish to regulate the content of messages about sexual preference. One fear is that the state, by repealing its restrictions, will be seen as approving homosexual conduct. The selective enforcement of these laws is itself evidence that one of the main policies being pursued is the suppression of expression; the laws are enforced mainly against those who openly advertise their sexual preferences. The immediate practical effect of this enforcement pattern is to penalize public self-identification and expression, some of which is political expression in support of "gay liberation." Even thoroughgoing enforcement would severely impair expression, along with the values of caring and intimacy. For a homosexual, a violation of these laws is the principal form that a sexual expression of love can take.

The denial of the status of marriage, or some comparable status, does not merely limit homosexuals' opportunities for expressive self-identification; material benefits also are frequently conditioned on marriage. Some commentators argue that a state's refusal to recognize homosexual marriage raises a problem of sex discrimination, and others contend that homosexuality should be regarded as a suspect classification for equal protection purposes. In any case, the heart of the constitutional problem lies in the freedom of intimate association. Although the denial of formal recognition of a homosexual couple's union may not demand the same compelling justification that would be required by a total prohibition of homosexual relations, it nonetheless seems unlikely that government could meet any requirement of justification that was not wholly permissive.

The burden of justification is of critical importance in the area of regulation of homosexual conduct, precisely because most such regulations are the product of folklore and fantasy rather than evidence of real risk of harm. If, for example, the state had to prove that a lesbian mother, by virtue of that status alone, was unfit to have custody of her child, the effort surely would demonstrate that the operative factor in the disqualification was not risk of harm, but stigma. The results of serious constitutional inquiry into harms and justifications in such cases are easy to predict. First, however, that serious inquiry must be made, and the Supreme Court showed in Doe v. Commonwealth's District Attorney (1976) that it was not eager to embark on that course.

The freedom of intimate association serves as an organizing principle mainly by focusing attention on substantive associational values. In a given case, the impairment of those values is matched against the asserted justifications for governmental regulation. Those justifications are hard to discuss systematically, for they can be asserted on the basis of a range of interests as broad as the public welfare. One cluster of justifications, however, deserves attention: the promotion of a political majority's view of morality. The state may claim a role in socializing its citizens, and especially the young, to traditional values. When a legislature prohibits unmarried cohabitation or homosexual relations or other disapproved forms of intimate association, it does so primarily to promote a moral view and to protect the sensibilities of those who share that view. The freedom of intimate association does not wholly disable government from seeking these ends; however, as Griswold and its successor decisions show, neither can the state defeat every claim to the freedom of intimate association simply by invoking conventional morality.

The judicial interest-balancing appropriate to the evolution of many claims of freedom of intimate association thus must consider not only degrees of impairment of associational values but also questions of the kind raised by government speech cases involving official promotion of particular points of view. There is a difference, for example, between a "baby bonus" designed to assist parents with child-rearing and a state's offer of cash to any woman entering an abortion clinic, conditioned on her agreement to forgo an abortion. To say that the difference is one of degree is to remind ourselves that the judicial function in constitutional cases is one of judgment. The freedom of intimate association is not a machine that, once set in motion, must run to all conceivable logical conclusions. It is instead a constitutional principle, requiring significant justification when the state seeks to lay hands on life-defining intimate associational choices.

Kenneth L. Karst


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