opinion | Americans are losing their right not to conform

On June 24, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey on the grounds that the right to abortion is not enshrined in the Constitution and is not deeply rooted in the history and traditions of the United States. As many commentators have noted, similar objections can be raised to precedents such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, which recognize constitutional protections for birth control, sex, and marriage.

It is therefore curious to see today’s conservatives celebrating the prospect of overruling privacy rights. Such rights have for years protected Americans who have chosen the less traveled path—those who have rejected traditional ideas about sex and family. Without those rights, it would be much more difficult for Americans to make choices about some of the most intimate aspects of their lives, such as whether and when they want to have children and who they want to work with and start a family with.

There is something deeply un-American about challenging these issues and the principles underlying them, at least according to the American ideals professed by liberals and conservatives alike. For example, in a 1928 presidential campaign speech, Herbert Hoover, a Republican, invoked “the American system of rugged individualism”—the idea that America was a place of free markets, individual thought, and a persistent skepticism of state-imposed conformity.

Obviously, many of today’s right-wingers don’t view LGBTQ rights and abortion protections as a matter of individualism, in its old-fashioned conservative form. They see deviations from the traditional heterosexual family and traditional gender roles as deviant and wrong. But that’s strange, because the freedom to define oneself — not to conform — has deep roots in American traditions of pluralism, independence, and resistance to the prospect of government coercion.

The right to privacy was established in 1965 in Griswold – the contraceptive case. In that decision, the court referred to two parental rights cases from the 1920s, as well as more recent cases in which the court recognized constitutional protections for those who hold unpopular political views. The message was clear: the Constitution is making way in our society for those who do not conform to traditional norms, politically or in dealing with their intimate lives.

Judge Harry Blackmun, who wrote the majority opinion in Roe, underlined this view in his dissenting opinion in Bowers v. Hardwick, a case from 1986 enforcing a Georgian law criminalizing sodomy. The decision was widely regarded as a blow to the growing LGBTQ rights movement. Judge Blackmun looked skeptical at the prospect of laws that would demonstrate the state’s preference for heterosexuality by criminalizing the private sexual conduct of gay men and women. He explained that in our diverse nation “there can be many ‘right’ ways” of entering into relationships and that “much of the richness of a relationship will come from the freedom an individual has to determine the form and nature of these intensely to choose personal ties.”

Three years later, in response to a decision denying the paternal rights of an unmarried father, Judge William Brennan, who joined Blackmun’s dissent in Bowers, made the point about diversity and pluralism more emphatic. The court largely dismissed the father’s claim because the child was the product of an adulterous relationship. Writing for the court, Judge Antonin Scalia framed the denial as a defense of “the unitary family.” Judge Brennan argued against this distorted view of the family: “We are not an assimilative, homogeneous society, but a facilitating, pluralistic society in which we must be willing to follow the unknown or even repulsive practice of someone else, because the same permissive impulse our protects own idiosyncrasies.”

Brennan’s dissent, and his defense of constitutional protections for nonconformity, eventually prevailed. In 2003, Lawrence v. Texas, the court overturned laws criminalizing sodomy. In doing so, it favorably cited Planned Parenthood v. Casey, the abortion case dismissed alongside Roe last month, on the view that decisions “that involve the most intimate and personal choices a person can make in their life are choices that are central to ​for personal dignity and autonomy, are central to the freedom protected by the 14th Amendment.” The Constitution, it seemed, made room for non-conformity.

Conservatives have not always resisted the tendency towards nonconformity. Take the First Amendment, a favorite of the conservative bloc of the court. It doesn’t just protect dissenting voices; it begins by discrediting the prospect of state-imposed religious conformity. (Although it is noteworthy that this court’s defense of the First Amendment is often deployed in favor of Christian evangelicals rather than minority religious sects.)

The court’s firm defense of the Second Amendment bears all the hallmarks of the rugged individualism Republicans once praised. In the New York gun rights case decided the day before the decision to overturn Roe v. Wade, Justice Clarence Thomas, who wrote for the majority, told a history in which the denial of the right to bear arms, newly freed Afro -Made Americans especially vulnerable to racial violence. His point was clear: the right to bear arms could be a critical equalizer for those who, on grounds of race, fell short of the traditional view of white male citizenship.

To be sure, the defense of non-conformity in the Constitution is not sweeping. There is no unfettered right to do what you want when you want. But there is a long American tradition of championing pluralism and protecting those who take the less traveled road. Why, then, are contemporary conservatives pushing for protections for those who oppose liberal access to abortion and birth control, same-sex marriage, and sensible gun restrictions in the first place, as supported by a majority of Americans? Why is it nonconformity for me but not for you? Some would argue that a steadfast view of the Constitution, rooted in the 1780s, forces the conservative approach to these questions. Others argue that these disjunctions are simply about power—about creating a society where everyone must conform to the vision of American life that contemporary conservatives desire.

Either way, the loss of the right not to conform makes it harder for this country to continue as a multiracial, multiethnic, multifaith democracy. And maybe that’s the point.

Melissa Murray is a law professor at New York University and co-host of the “Strict Scrutiny” podcast.