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a countervailing constitutional interest, that of the First

Amendment. In this light, petitioner must be viewed as

seeking to achieve a goal that is of paramount importance

in the fulfillment of its mission.

It may be argued that there is greater force to these

views at the undergraduate level than in a medical school

where the training is centered primarily on professional

competency. But even at the graduate level, our tradition

and experience lend support to the view that the contribu-

tion of diversity is substantial . . .

* * *

Physicians serve a heterogeneous population. An other-

wise qualified medical student with a particular back-

ground—whether it be ethnic, geographic, culturally

advantaged or disadvantaged—may bring to a professional

school of medicine experiences, outlooks, and ideas that

enrich the training of its student body and better equip its

graduates to render with understanding their vital service

to humanity.

Ethnic diversity, however, is only one element in

a range of factors a university properly may consider

in attaining the goal of a heterogeneous student body.

Although a university must have wide discretion in

making the sensitive judgments as to who should be

admitted, constitutional limitations protecting individual

rights may not be disregarded. . . . As the interest of

diversity is compelling in the context of a university’s

admissions program, the question remains whether the

program’s racial classification is necessary to promote this

interest.

It may be assumed that the reservation of a specified

number of seats in each class for individuals from the

preferred ethnic groups would contribute to the attain-

ment of considerable ethnic diversity in the student body.

But petitioner’s argument that this is the only effective

means of serving the interest of diversity is seriously

flawed. . . . The diversity that furthers a compelling state

interest encompasses a far broader array of qualifications

and characteristics of which racial or ethnic origin is but a

single though important element. Petitioner’s special

admissions program, focused solely on ethnic diversity,

would hinder rather than further attainment of genuine

diversity.

Nor would the state interest in genuine diversity be

served by expanding petitioner’s two-track system into a

multitrack program with a prescribed number of seats set

aside for each identifiable category of applicants. Indeed,

it is inconceivable that a university would thus pursue the

logic of petitioner’s two-track program to the illogical end

of insulating each category of applicants with certain

desired qualifications from competition with all other

applicants.

The experience of other university admissions pro-

grams, which take race into account in achieving the edu-

cational diversity valued by the First Amendment,

demonstrates that the assignment of a fixed number of

places to a minority group is not a necessary means toward

that end. An illuminating example is found in the Harvard

College program:

“In recent years Harvard College has expanded the

concept of diversity to include students from disadvan-

taged economic, racial and ethnic groups. “. . .When the

Committee on Admissions reviews the large middle group

of applicants who are ‘admissible’ and deemed capable of

doing good work in their courses, the race of an applicant

may tip the balance in his favor just as geographic origin or

a life spent on a farm may tip the balance in other candi-

dates’ cases. . . .

“In Harvard College admissions the Committee has

not set target-quotas for the number of blacks, or of musi-

cians, football players, physicists or Californians to be

admitted in a given year. . . . But that awareness . . . means

only that in choosing among thousands of applicants who

are not only ‘admissible’ academically but have other

strong qualities, the Committee, with a number of criteria

in mind, pays some attention to distribution among many

types and categories of students.”

In such an admissions program, race or ethnic back-

ground may be deemed a “plus” in a particular applicant’s

file, yet it does not insulate the individual from comparison

with all other candidates for the available seats. The file of

a particular black applicant may be examined for his

potential contribution to diversity without the factor of

race being decisive. . . . Such qualities could include excep-

tional personal talents, unique work or service experience,

leadership potential, maturity, demonstrated compassion,

a history of overcoming disadvantage, ability to communi-

cate with the poor, or other qualifications deemed impor-

tant. In short, an admissions program operated in this way

is flexible enough to consider all pertinent elements of

diversity in light of the particular qualifications of each

applicant, and to place them on the same footing for con-

sideration, although not necessarily according them the

same weight. Indeed, the weight attributed to a particular

quality may vary from year to year depending upon the

“mix” both of the student body and the applicants for the

incoming class.

This kind of program treats each applicant as an indi-

vidual in the admissions process. . . .

It has been suggested that an admissions program

which considers race only as one factor is simply a subtle

and more sophisticated—but no less effective—means of

1742 ERA 10: Contemporary United States

according racial preference than the Davis program. A

facial intent to discriminate, however, is evident in peti-

tioner’s preference program and not denied in this case.

No such facial infirmity exists in an admissions program

where race or ethnic background is simply one element—

to be weighed fairly against other elements—in the selec-

tion process. . . . In short, good faith would be presumed

in the absence of a showing to the contrary in the manner

permitted by our cases.

In summary, it is evident that the Davis special admissions

program involves the use of an explicit racial classification

never before countenanced by this Court. It tells appli-

cants who are not Negro, Asian, or Chicano that they are

totally excluded from a specific percentage of the seats in

an entering class. . . . They are never afforded the chance

to compete with applicants from the preferred groups for

the special admissions seats. At the same time, the pre-

ferred applicants have the opportunity to compete for

every seat in the class.

The fatal flaw in petitioner’s preferential program is its

disregard of individual rights as guaranteed by the Four-

teenth Amendment. Such rights are not absolute. But

when a State’s distribution of benefits or imposition of bur-

dens hinges on ancestry or the color of a person’s skin, that

individual is entitled to a demonstration that the chal-

lenged classification is necessary to promote a substantial

state interest. Petitioner has failed to carry this burden.

For this reason, that portion of the California court’s judg-

ment holding petitioner’s special admissions program

invalid under the Fourteenth Amendment must be

affirmed.

In enjoining petitioner from ever considering the race of

any applicant, however, the courts below failed to recog-

nize that the State has a substantial interest that legiti-

mate may be served by a properly devised admissions

program involving the competitive consideration of race

and ethnic origin. For this reason, so much of the Cali-

fornia court’s judgment as enjoins petitioner from any

consideration of the race of any applicant must be

reversed.

With respect to respondent’s entitlement to an injunction

directing his admission to the Medical School, petitioner

has conceded that it could not carry its burden of proving

that, but for the existence of its unlawful special admis-

sions program, respondent still would not have been

admitted. Hence, respondent is entitled to the injunction,

and that portion of the judgment must be affirmed.

Source:

Supreme Court Reporter, Vol. 98, pp. 2,733–2,815.

National Conference of Catholic Bishops,

Pastoral Letter on War and Peace, 1983

Document issued by the National Conference of Catholic

Bishops May 3, 1983, in which they condemned the nuclear

arms race and called for a halt to the development, produc-

tion, and deployment of nuclear weapons. The document, for-

mally titled “The Challenge of Peace: God’s Promise and Our

Responsibility,” was intended to provide guidance for Roman

Catholic clergy on the subject of nuclear arms. The statement

distinguished between moral principles, which represented a

binding authority, and practical application of those princi-

ples, which might differ based on legitimate differences of

interpretation. The letter expressed “profound skepticism”

about the moral acceptability of any use of nuclear weapons.

It opposed the “first use” of nuclear weapons in a conflict, and

it permitted the concept of nuclear deterrence only on condi-

tion that the United States engage in arms reduction talks. The

letter called on Catholics in the military to work for peace by

promoting the concept of self-defense. It also asked Catholics

to abstain from eating meat on Fridays and to increase

penance and prayer as an expression of concern for peace.

________________________

_______________________

The Second Vatican Council opened its evaluation of mod-

ern warfare with the statement: “The whole human race

faces a moment of supreme crisis in its advance toward

maturity.” We agree with the council’s assessment; the cri-

sis of the moment is embodied in the threat which nuclear

weapons pose for the world and much that we hold dear in

the world. We have seen and felt the effects of the crisis of

the nuclear age in the lives of people we serve. Nuclear

weaponry has drastically changed the nature of warfare,

and the arms race poses a threat to human life and human

civilization which is without precedent.

We write this letter from the perspective of Catholic

faith. Faith does not insulate us from the daily challenges

of life but intensifies our desire to address them precisely

in light of the gospel which has come to us in the person of

the risen Christ. Through the resources of faith and reason

we desire in this letter to provide hope for people in our

day and direction toward a world freed of the nuclear

threat.

As Catholic bishops we write this letter as an exercise

of our teaching ministry. The Catholic tradition on war and

peace is a long and complex one; it stretches from the Ser-

mon on the Mount to the statements of Pope John Paul II.

We wish to explore and explain the resources of the moral-

Social Developments 1743

religious teaching and to apply it to specific questions of

our day. In doing this we realize, and we want readers of

this letter to recognize, that not all statements in this letter

have the same moral authority. At times we state univer-

sally binding moral principles found in the teaching of the

Church; at other times the pastoral letter makes specific

applications, observations and recommendations which

allow for diversity of opinion on the part of those who

assess the factual data of situations differently. However,

we expect Catholics to give our moral judgments serious

consideration when they are forming their own views on

specific problems.

The experience of preparing this letter has manifested

to us the range of strongly held opinion in the Catholic

community on questions of fact and judgment concerning

issues of war and peace. We urge mutual respect among

individuals and groups in the Church as this letter is ana-

lyzed and discussed. Obviously, as bishops, we believe that

such differences should be expressed within the frame-

work of Catholic moral teaching. We need in the Church

not only conviction and commitment but also civility and

charity.

While this letter is addressed principally to the

Catholic community, we want it to make a contribution to

the wider public debate in our country on the dangers and

dilemmas of the nuclear age. Our contribution will not be

primarily technical or political, but we are convinced that

there is no satisfactory answer to the human problems of

the nuclear age which fails to consider the moral and reli-

gious dimensions of the questions we face.

Although we speak in our own name, as Catholic bish-

ops of the Church in the United States, we have been

conscious in the preparations of this letter of the conse-

quences our teaching will have not only for the United

States but for other nations as well. One important expres-

sion of this awareness has been the consultation we have

had, by correspondence and in an important meeting held

at the Vatican (January 18–19, 1983), with representatives

of European bishop’s conferences. This consultation with

bishops of other countries, and, of course, with the Holy

See, has been very helpful to us.

Catholic teaching has always understood peace in

positive terms. In the words of Pope John Paul II: “Peace

is not just the absence of war. . . . Like a cathedral,

peace must be constructed patiently and with unshakable

faith” (Coventry, England, 1982). Peace is the fruit of

order. Order in human society must be shaped on the

basis of respect for the transcendence of God and the

unique dignity of each person, understood in terms of

freedom, justice, truth and love. To avoid war in our day

we must be intent on building peace in an increasingly

interdependent world. In Part III of this letter we set

forth a positive vision of peace and the demands such a

vision makes on diplomacy, national policy, and personal

choices.

While pursuing peace incessantly, it is also necessary

to limit the use of force in a world comprised of nation

states, faced with common problems but devoid of an ade-

quate international political authority. Keeping the peace

in the nuclear age is a moral and political imperative. In

Parts I and II of this letter we set forth both the principles

of Catholic teaching on war and a series of judgments,

based in these principles, about concrete policies. In mak-

ing these judgments we speak as moral teachers, not as

technical experts.

I. Some Principles, Norms, and Premises of

Catholic Teaching

A. O

1. Catholic teaching begins in every case with a presump-

tion against war and for peaceful settlement of disputes. In

exceptional cases, determined by the moral principles of

the just-war tradition, some uses of force are permitted.

2. Every nation has a right and duty to defend itself

against unjust aggression.

3. Offensive war of any kind is not morally justifiable.

4. It is never permitted to direct nuclear or conven-

tional weapons to “the indiscriminate destruction of whole

cities or vast areas with their populations . . . “ (Pastoral

Constitution, #80). The intentional killing of innocent

civilians or noncombatants is always wrong.

5. Even defensive response to unjust attack can cause

destruction which violates the principle of proportionality,

going far beyond the limits of legitimate defense. This

judgment is particularly important when assessing planned

use of nuclear weapons. No defensive strategy, nuclear or

conventional, which exceeds the limits of proportionality is

morally permissible.

B. O

ETERRENCE

1. “In current conditions ‘deterrence’ based on balance,

certainly not as an end in itself but as a step on the way

toward a progressive disarmament, may still be judged

morally acceptable. Nonetheless, in order to ensure peace,

it is indispensable not to be satisfied with this minimum

which is always susceptible to the real danger of explosion”

(Pope John Paul II, Message to U.N. Special Session on

Disarmament, #8, June 1982).

2. No use of nuclear weapons which would violate the

principles of discrimination or proportionality may be

intended in a strategy of deterrence. The moral demands

of Catholic teaching require resolute willingness not to

intend or to do moral evil even to save our own lives or the

lives of those we love.

3. Deterrence is not an adequate strategy as a long-

term basis for peace; it is a transitional strategy justifiable

1744 ERA 10: Contemporary United States

only in conjunction with resolute determination to pursue

arms control and disarmament. We are convinced that “the

fundamental principle on which our present peace

depends must be replaced by another, which declares that

the true and solid peace of nations consists not in equality

of arms but in mutual trust alone” (Pope John XXIII, Peace

on Earth, #113).

C. T

RMS

ACE AND

ISARMAMENT

1. The arms race is one of the greatest curses on the

human race; it is to be condemned as a danger, an act of

aggression against the poor, and a folly which does not pro-

vide the security it promises. (Cf: Pastoral Constitution,

#81; Statement of the Holy See to the United Nations,

1976.)

2. Negotiations must be pursued in every reasonable

form possible; they should be governed by the “demand

that the arms race should cease; that the stockpiles which

exist in various countries should be reduced equally and

simultaneously by the parties concerned; that nuclear

weapons should be banned; and that a general agreement

should eventually be reached about progressive disarma-

ment and an effective method of control” (Pope John

XXIII, Peace On Earth, #112).

D. O

ERSONAL

ONSCIENCE

1. Military Service: “All those who enter the military ser-

vice in loyalty to their country should look upon them-

selves as the custodians of the security and freedom of

their fellow countrymen; and when they carry out their

duty properly, they are contributing to the maintenance of

peace” (Pastoral Constitution, #79).

2. Conscientious Objection: “Moreover, it seems

just that laws should make humane provision for the case

of conscientious objectors who refuse to carry arms, pro-

vided they accept some other form of community service”

( Pastoral Constitution. #79).

3. Nonviolence: “In this same spirit we cannot but

express our admiration for all who forego the use of vio-

lence to vindicate their rights and resort to other means

of defense which are available to weaker parties, provided

it can be done without harm to the rights and duties of

others and of the community” ( Pastoral Constitution,

#78).

4. Citizens and Conscience: “Once again we deem it

opportune to remind our children of their duty to take an

active part in public life, and to contribute towards the

attainment of the common good of the entire human fam-

ily as well as to that of their own political community . . . .

In other words, it is necessary that human beings, in the

intimacy of their own consciences, should so live and act in

their temporal lives as to create a synthesis between scien-

tific, technical and professional elements on the one hand,

and spiritual values on the other” (Pope John XXIII, Peace

on Earth, #146, 150).

II. Moral Principles and Policy Choices

As bishops in the United States, assessing the concrete cir-

cumstances of our society, we have made a number of

observations and recommendations in the process of

applying moral principles to specific policy choices.

A. O

NTHE

SE OF

UCLEAR

EAPONS

1. Counter Population Use: Under no circumstances

may nuclear weapons or other instruments of mass slaugh-

ter be used for the purpose of destroying population cen-

ters or other predominantly civilian targets. Retaliatory

action which would indiscriminately and disproportion-

ately take many wholly innocent lives, lives of people who

are in no way responsible for reckless actions of their gov-

ernment, must also be condemned.

2. The Initiation of Nuclear War: We do not per-

ceive any situation in which the deliberate initiation of

nuclear war, on however restricted a scale, can be morally

justified. Nonnuclear attacks by another state must be

resisted by other than nuclear means. Therefore, a serious

moral obligation exists to develop nonnuclear defensive

strategies as rapidly as possible. In this letter we urge

NATO to move rapidly toward the adoption of a “no first

use” policy, but we recognize this will take time to imple-

ment and will require the development of an adequate

alternative defense posture.

3. Limited Nuclear War: Our examination of the var-

ious arguments on this question makes us highly skeptical

about the real meaning of “limited.” One of the criteria of

the just-war teaching is that there must be a reasonable

hope of success in bringing about justice and peace. We

must ask whether such a reasonable hope can exist once

nuclear weapons have been exchanged. The burden of

proof remains on those who assert that meaningful limita-

tion is possible. In our view the first imperative is to pre-

vent any use of nuclear weapons and we hope that leaders

will resist the notion that nuclear conflict can be limited,

contained or won in any traditional sense.

B. O

ETERRENCE

In concert with the evaluation provided by Pope John Paul

II, we have arrived at a strictly conditional moral accep-

tance of deterrence. In this letter we have outlined criteria

and recommendations which indicate the meaning of con-

ditional acceptance of deterrence policy. We cannot con-

sider such a policy adequate as a long-term basis for peace.

C. O

ROMOTING

EACE

1. We support immediate, bilateral verifiable agreements

to halt the testing, production and deployment of new

Social Developments 1745

nuclear weapons systems. This recommendation is not to

be identified with any specific political initiative.

2. We support efforts to achieve deep cuts in the arse-

nals of both superpowers; efforts should concentrate first

on systems which threaten the retaliatory forces of either

major power.

3. We support early and successful conclusion of nego-

tiations of a comprehensive test ban treaty.

4. We urge new efforts to prevent the spread of

nuclear weapons in the world, and to control the conven-

tional arms race, particularly the conventional arms trade.

5. We support, in an increasingly interdependent

world, political and economic policies designed to protect

human dignity and to promote the human rights of every

person, especially the least among us. In this regard, we

call for the establishment of some form of global author-

ity adequate to the needs of the international common

good.

This letter includes many judgments from the per-

spective of ethics, politics and strategy needed to speak

concretely and correctly to the “moment of supreme crisis”

identified by Vatican II. We stress again that readers

should be aware, as we have been, of the distinction

between our statement of moral principles and of official

church teaching and our application of these to concrete

issues. We urge that special care be taken not to use pas-

sages out of context; neither should brief portions of this

document be cited to support positions it does not intend

to convey or which are not truly in accord with the spirit of

its teaching.

In concluding this summary we respond to two key

questions often asked about this pastoral letter:

Why do we address these matters fraught with such

complexity, controversy and passion? We speak as pastors,

not politicians. We are teachers, not technicians. We can-

not avoid our responsibility to lift up the moral dimensions

of the choices before our world and nation. The nuclear

age is an era of moral as well as physical danger. We are the

first generation since Genesis with the power to threaten

the created order. We cannot remain silent in the face of

such danger. Why do we address these issues? We are sim-

ply trying to live up to the call of Jesus to be peacemakers

in our own time and situation.

What are we saying? Fundamentally, we are saying

that the decisions about nuclear weapons are among the

most pressing moral questions of our age. While these

decisions have obvious military and political aspects, they

involve fundamental moral choices. In simple terms, we

are saying that good ends (defending one’s country, pro-

tecting freedom, etc.) cannot justify immoral means (the

use of weapons which kill indiscriminately and threaten

whole societies). We fear that our world and nation are

headed in the wrong direction. More weapons with greater

destructive potential are produced every day. More and

more nations are seeking to become nuclear powers. In

our quest for more and more security we fear we are actu-

ally becoming less and less secure.

In the words of our Holy Father, we need a “moral

about-face.” The whole world must summon the moral

courage and technical means to say no to nuclear conflict;

no to weapons of mass destruction; no to an arms race

which robs the poor and the vulnerable; and no to the

moral danger of a nuclear age which places before

humankind indefensible choices of constant terror or sur-

render. Peacemaking is not an optional commitment. It is

a requirement of our faith. We are called to be peacemak-

ers, not by some movement of the moment, but by our

Lord Jesus. The content and context of our peacemaking is

set not by some political agenda or ideological program,

but by the teaching of his Church.

Ultimately, this letter is intended as an expression of

Christian faith, affirming the confidence we have that the

risen Lord remains with us precisely in moments of crisis.

It is our belief in his presence and power among us which

sustain us in confronting the awesome challenge of the

nuclear age. We speak from faith to provide hope for all

who recognize the challenge and are working to confront

it with the resources of faith and reason.

To approach the nuclear issue in faith is to recognize

our absolute need for prayer: we urge and invite all to

unceasing prayer for peace with justice for all people. In a

spirit of prayerful hope we present this message of peace.

Introduction

1. “The whole human race faces a moment of su-

preme crisis in its advance toward maturity.” Thus the Sec-

ond Vatican Council opened its treatment of modern

warfare. Since the Council, dynamic of the nuclear arms

race has intensified. Apprehension about nuclear war is

almost tangible and visible today. As Pope John Paul II said

in his message to the United Nations concerning disarma-

ment: “Currently, the fear and preoccupation of so many

groups in various parts of the world reveal that people are

more frightened about what would happen if irresponsible

parties unleash some nuclear war.”

2. As bishops and pastors ministering in one of the

major nuclear nations, we have encountered this terror in

the minds and hearts of our people—indeed, we share it.

We write this letter because we agree that the world is at a

moment of crisis, the effects of which are evident in peo-

ple’s lives. It is not our intent to play on fears, however, but

to speak words of hope and encouragement in time of fear.

Faith does not insulate us from the challenges of life;

rather, it intensifies our desire to help solve them precisely

in light of the Good News which has come to us in the per-

son of Jesus, the Lord of history. From the resources of our

1746 ERA 10: Contemporary United States

faith we wish to provide hope and strength to all who seek

a world free of the nuclear threat. Hope sustains one’s

capacity to live with danger without being overwhelmed by

it; hope is the will to struggle against obstacles even when

they appear insuperable. Ultimately our hope rests in

the God who gave us life, sustains the world by his power,

and has called us to revere the lives of every person and all

peoples.

3. The crisis of which we speak arises from this fact:

nuclear war threatens the existence of our planet; this is a

more menacing threat than any the world has known. It is

neither tolerable nor necessary that human beings live

under this threat. But removing it will require a major

effort of intelligence, courage, and faith. As Pope John

Paul II said at Hiroshima: “From now on it is only through

a conscious choice and through a deliberate policy that

humanity can survive.”

4. As Americans, citizens of the nation which was first

to produce atomic weapons, which has been the only one

to use them, and which today is one of the handful of

nations capable of decisively influencing the course of the

nuclear age, we gave grave human, moral, and political

responsibilities to see that a “conscious choice” is made to

save humanity. This letter is therefore both an invitation

and a challenge to Catholics in the United States to join

with others in shaping the conscious choices and deliber-

ate policies required in this “moment of supreme crisis.”

Conclusion

330. As we close this lengthy letter, we try to answer

two key questions as directly as we can.

331. Why do we addr

ess these matters fraught with

such complexity, controversy, and passion? W

e speak as

pastors, not politicians. We are teachers, not technicians.

e cannot avoid our responsibility to lift up the moral

dimensions of the choices before our world and nation.

The nuclear age is an era of moral as well as physical

danger. We are the first generation since Genesis with

the power to virtually destroy God’s creation. We cannot

remain silent in the face of such danger. Why do we

address these issues? We are simply trying to live up to

the call of Jesus to be peacemakers in our own time and

situation.

332. What are we saying? Fundamentally, we are say-

ing that the decisions about nuclear weapons are among

the most pressing moral questions of our age. While these

decisions have obvious military and political aspects, they

involve fundamental moral choices. In simple terms, we

are saying that good ends (defending one’s country, pro-

tecting freedom, etc.) cannot justify immoral means (the

use of weapons which kill indiscriminately and threaten

whole societies). W

e fear that our world and nation are

headed in the wrong direction. More weapons with greater

destructive potential are produced every day. More and

more nations are seeking to become nuclear powers. In

our quest for more and more security, we fear we are actu-

ally becoming less and less secure.

333. In the words of our Holy Father, we need a

“moral about-face.” The whole world must summon the

moral courage and technical means to say “no” to nuclear

conflict; “no” to weapons of mass destruction; “no” to an

arms race which robs the poor and the vulnerable; and

“no” to the moral danger of a nuclear age which places

before humankind indefensible choices of constant terror

or surrender. Peacemaking is not an optional commitment.

It is a requirement of our faith. We are called to be peace

makers, not by some movement of the moment, but by our

Lord Jesus. The content and context of our peacemaking is

set, not by some political agenda or ideological program,

but by the teaching of his Church.

334. Thus far in this Pastoral Letter we have made

suggestions we hope will be helpful in the present world

crisis. Looking ahead to the long and productive future of

humanity for which we all hope, we feel that a more all-

inclusive and final solution is needed. We speak here of the

truly effective international authority for which Pope John

XXIII ardently longed in

Peace on Earth, and of which

Pope Paul VI spoke to the United Nations on his visit there

in 1965. The hope for such a structure is not unrealistic,

because the point has been reached where public opinion

sees clearly that, with the massive weaponry of the present,

war is no longer viable. There

is a substitute for war. There

is negotiation under the supervision of a global body real-

istically fashioned to do its job. It must be given the equip-

ment to keep constant surveillance on the entire earth.

Present technology makes this possible. It must have the

authority

, freely conferred upon it by all the nations, to

investigate what seem to be preparations for war by any

one of them. It must be empowered by all the nations to

enfor

ce its commands on every nation. It must be so con-

stituted as to pose no threat to any nation’s sovereignty.

Obviously the creation of such a sophisticated instrumen-

tality is a gigantic task, but is it hoping for too much to

believe that the genius of humanity, aided by the grace and

guidance of God, is able to accomplish it? To create it may

take decades of unrelenting daily toll by the world’s best

minds and most devoted hearts, but it shall never come

into existence unless we make a beginning now.

335. As we come to the end of our Pastoral Letter we

boldly propose the beginning of this work. The evil of the

proliferation of nuclear arms becomes more evident every

day to all people. No one is exempt from their danger. If

ridding the world of the weapons of war could be done eas-

ily, the whole human race would gladly do it tomor

row.

Shall we shrink from the task because it is hard?

Social Developments 1747

336. We turn to our own government and we beg it to

propose to the United Nations that it begin this work

immediately; that it create an international task force for

peace; that this task force, with membership open to every

nation, meet daily through the years ahead with one sole

agenda: the creation of a world that will one day be safe

from war. Freed from the bondage of war that holds it cap-

tive in its threat, the world would at last be able to address

its problems and to make genuine human progress, so that

every day there may be more freedom, more food, and

more opportunity for every human being who walks the

face of the earth.

337. Let us have the courage to believe in the bright

future and in a God who wills it for us—not a perfect

world, but a better one. The perfect world, we Christians

believe, is beyond the horizon, in an endless eternity

where God will be all in all. But a better world is here for

human hands and hearts and minds to make.

338. For the community of faith the risen Christ is the

beginning and end of all things. For all things were created

through him and all things will return to the Father

through him.

339. It is our belief in the risen Christ which sustains

us in confronting the awesome challenge of the nuclear

arms race. Present in the beginning as the word of the

Father, present in history as the word incarnate, and with

us today in his word, sacraments, and spirit, he is the rea-

son for our hope and faith. Respecting our freedom, he

does not solve our problems but sustains us as we take

responsibility for his work of creation and try to shape it in

the ways of the Kingdom. We believe his grace will never

fail us. We offer this letter to the Church and to all who can

draw strength and wisdom from it in the conviction that we

must not fail him. We must subordinate the power of the

nuclear age to human control and direct it to human ben-

efit. As we do this we are conscious of God’s continuing

work among us, which will one day issue forth in the beau-

tiful final Kingdom prophesied by the seer of the Book of

Revelation:

Then I saw a new heaven and a new earth; for the first

heaven and the first earth had passed away and the sea was

no more. And I saw the holy city, new Jerusalem, coming

down out of heaven from God, prepared as a bride

adorned for her husband; and I heard a great voice from

the throne saying, “Behold, the dwelling of God is with

men. He will dwell with them, and they shall be his peo-

ple, and God himself will be with them, he will wipe away

every tear from their eyes, and death shall be no more, nei-

ther shall there be mourning nor crying nor pain any more,

for the former things have passed away.” And he who sat

upon the throne said, “Behold, I make all things new” (Rv.

21:1–5).

Source:

United States Catholic Conference, Inc., Washington, D.C.

Bowers v. Hardwick, 1986

U.S. Supreme Court decision issued June 30, 1986, ruling that

an 1816 Georgia state law, which made sodomy a crime even

if committed in the privacy of one’s home, did not violate an

individual’s constitutional right to privacy. The case involved

Michael Hardwick, a gay man who had been arrested in his

home in Georgia for engaging in homosexual activity. Al-

though Hardwick was not prosecuted, he subsequently chal-

lenged the law’s constitutionality. The majority decision was

made despite the fact that married couples had gained the

right of sexual privacy in

Griswold v. Connecticut

(381 U.S.

479 [1965]). The Court based its decision primarily on the

precedent set by a number of state laws against sodomy dat-

ing from the 17th century to the present day.

Ten years later, in

Romer, Governor of Colorado v. Evans

et al.

(116 S. Ct. 1620 [1996]), the Court struck down, 6-3, a

Colorado law that excluded homosexuals from civil rights pro-

tections. However, in

Boy Scouts of America v. Dale

(530 U.S.

640 [2000]), the Supreme Court in a 5-4 decision declared

that a private organization, including the Boy Scouts, could

discriminate against anyone in opposition to the group’s val-

ues, in this case homosexuals.

All citations were removed from decisions below.

________________________

_______________________

Justice White delivered the opinion of the Court.

In August 1982, respondent Hardwick (hereafter

respondent) was charged with violating the Georgia statute

criminalizing sodomy by committing that act with another

adult male in the bedroom of respondent’s home. After a

preliminary hearing, the District Attorney decided not to

present the matter to the grand jury unless further evi-

dence developed.

Respondent then brought suit in the Federal District

Court, challenging the constitutionality of the statute inso-

far as it criminalized consensual sodomy. He asserted that

he was a practicing homosexual, that the Georgia sodomy

statute, as administered by the defendants, placed him in

imminent danger of arrest, and that the statute for several

reasons violates the Federal Constitution. The District

Court granted the defendants’ motion to dismiss for failure

to state a claim, relying on Doe v. Commonwealth’s Attor-

ney for the City of Richmond (1975), which this Court

summarily affirmed (1976).

A divided panel of the Court of Appeals for the

Eleventh Circuit reversed. The court first held that,

because Doe was distinguishable and in any event had

1748 ERA 10: Contemporary United States

been undermined by later decisions, our summary affir-

mance in that case did not require affirmance of the Dis-

trict Court. Relying on our decisions in Griswold v.

Connecticut (1965); Roe v. Wade (1973), [and others] the

court went on to hold that the Georgia statute violated

respondent’s fundamental rights because his homosexual

activity is a private and intimate association that is beyond

the reach of state regulation by reason of the Ninth

Amendment and the Due Process Clause of the Four-

teenth Amendment. The case was remanded for trial, at

which, to prevail, the State would have to prove that the

statute is supported by a compelling interest and is the

most narrowly drawn means of achieving that end.

Because other Courts of Appeals have arrived at judg-

ments contrary to that of the Eleventh Circuit in this case,

we granted the Attorney General’s petition for certiorari

questioning the holding that the sodomy statute violates

the fundamental rights of homosexuals. We agree with

petitioner that the Court of Appeals erred, and hence

reverse its judgment.

This case does not require a judgment on whether

laws against sodomy between consenting adults in general,

or between homosexuals in particular, are wise or desir-

able. It raises no question about the right or propriety of

state legislative decisions to repeal their laws that crimi-

nalize homosexual sodomy, or of state-court decisions

invalidating those laws on state constitutional grounds.

The issue presented is whether the Federal Constitution

confers a fundamental right upon homosexuals to engage

in sodomy and hence invalidates the laws of the many

States that still make such conduct illegal and have done so

for a very long time. The case also calls for some judgment

about the limits of the Court’s role in carrying out its con-

stitutional mandate.

We first register our disagreement with the Court of

Appeals and with respondent that the Court’s prior cases

have construed the Constitution to confer a right of pri-

vacy that extends to homosexual sodomy and for all

intents and purposes have decided this case. The reach of

this line of cases was sketched in Carey v. Population Ser-

vices International (1977), Pierce v. Society of Sisters

(1925), and Meyer v. Nebraska, [and] were described as

dealing with child rearing and education; Prince v. Mass-

achusetts, (1944), with family relationships; Skinner v.

Oklahoma ex rel. Williamson, (1942), with procreation;

Loving v. Virginia, (1967), with marriage; Griswold v.

Connecticut, and Eisenstadt v. Baird, with contraception;

and Roe v. Wade, (1973), with abortion. The latter three

cases were interpreted as construing the Due Process

Clause of the Fourteenth Amendment to confer a funda-

mental individual right to decide whether or not to beget

or bear a child.

Accepting the decisions in these cases and the above

description of them we think it evident that none of the

rights announced in those cases bears any resemblance to

the claimed constitutional right of homosexuals to engage

in acts of sodomy that is asserted in this case. No connec-

tion between family, marriage, or procreation on the one

hand and homosexual activity on the other has been

demonstrated, either by the Court of Appeals or by

respondent. Moreover, any claim that these cases never-

theless stand for the proposition that any kind of private

sexual conduct between consenting adults is constitution-

ally insulated from state proscription is insupportable.

Indeed, the Court’s opinion in Carey twice asserted that

the privacy right, which the Griswold line of cases found to

be one of the protections provided by the Due Process

Clause, did not reach so far.

Precedent aside, however, respondent would have us

announce, as the Court of Appeals did, a fundamental

right to engage in homosexual sodomy. This we are quite

unwilling to do. It is true that despite the language of the

Due Process Clauses of the Fifth and Fourteenth Amend-

ments, which appears to focus only on the processes by

which life, liberty, or property is taken, the cases are legion

in which those Clauses have been interpreted to have sub-

stantive content, subsuming rights that to a great extent

are immune from federal or state regulation or proscrip-

tion. Among such cases are those recognizing rights that

have little or no textual support in the constitutional lan-

guage. Meyer, Prince, and Pierce fall in this category, as do

the privacy cases from Griswold to Carey.

Striving to assure itself and the public that announcing

rights not readily identifiable in the Constitution’s text

involves much more than the imposition of the Justice’s

own choice of values on the States and the Federal Gov-

ernment, the Court has sought to identify the nature of the

rights qualifying for heightened judicial protection. In

Palko v. Connecticut, (1937), it was said that this category

includes those fundamental liberties that are “implicit in

the concept of ordered liberty,” such that “neither liberty

nor justice would exist if [they] were sacrificed.” A differ-

ent description of fundamental liberties appeared in

Moore v. East Cleveland (1977), where they are character-

ized as those liberties that are “deeply rooted in this

Nation’s history and tradition.”

It is obvious to us that neither of these formulations

would extend a fundamental right to homosexuals to

engage in acts of consensual sodomy. Proscriptions against

that conduct have ancient roots. See generally, Survey on

the Constitutional Right to Privacy in the Context of

Homosexual Activity, (1986). Sodomy was a criminal

offense at common law and was forbidden by the laws of

the original thirteen States when they ratified the Bill of

Social Developments 1749

Rights. In 1868, when the Fourteenth Amendment was

ratified, all but 5 of the 37 States in the Union had crimi-

nal sodomy laws. In fact, until 1961, all 50 States outlawed

sodomy, and today, 24 States and the District of Columbia

continue to provide criminal penalties for sodomy per-

formed in private and between consenting adults. Against

this background, to claim that a right to engage in such

conduct is “deeply rooted in this Nation’s history and tra-

dition” or “implicit in the concept of ordered liberty” is, at

best, facetious.

Nor are we inclined to take a more expansive view of

our authority to discover new fundamental rights imbed-

ded in the Due Process Clause. The Court is most vulner-

able and comes nearest to illegitimacy when it deals with

judge-made constitutional law having little or no cogniz-

able roots in the language or design of the Constitution.

That this is so was painfully demonstrated by the face-off

between the Executive and the Court in the 1930’s, which

resulted in the repudiation of much of the substantive

gloss that the Court had placed on the Due Process

Clauses of the Fifth and Fourteenth Amendments. There

should be, therefore, great resistance to expand the sub-

stantive reach of those Clauses, particularly if it requires

redefining the category of rights deemed to be fundamen-

tal. Otherwise, the Judiciary necessarily takes to itself fur-

ther authority to govern the country without express

constitutional authority. The claimed right pressed on us

today falls far short of overcoming this resistance.

Respondent, however, asserts that the result should be

different where the homosexual conduct occurs in the pri-

vacy of the home. He relies on Stanley v. Georgia, (1969),

where the Court held that the First Amendment prevents

conviction for possessing and reading obscene material in

the privacy of one’s home. “If the First Amendment means

anything, it means that a State has no business telling a

man, sitting alone in his house, what books he may read or

what films he may watch.”

Stanley did protect conduct that would not have been

protected outside the home, and it partially prevented the

enforcement of state obscenity laws; but the decision was

firmly grounded in the First Amendment. The right

pressed upon us here has no similar support in the text of

the Constitution, and it does not qualify for recognition

under the prevailing principles for construing the Four-

teenth Amendment. Its limits are also difficult to discern.

Plainly enough, otherwise illegal conduct is not always

immunized whenever it occurs in the home. Victimless

crimes, such as the possession and use of illegal drugs, do

not escape the law where they are committed at home.

Stanley itself recognized that its holding offered no pro-

tection for the possession in the home of drugs, firearms,

or stolen goods. And if respondent’s submission is limited

to the voluntary sexual conduct between consenting adults,

it would be difficult, except by fiat, to limit the claimed

right to homosexual conduct while leaving exposed to pros-

ecution adultery, incest, and other sexual crimes even

though they are committed in the home. We are unwilling

to start down that road.

Even if the conduct at issue here is not a fundamental

right, respondent asserts that there must be a rational basis

for the law and that there is none in this case other than

the presumed belief of a majority of the electorate in

Georgia that homosexual sodomy is immoral and unac-

ceptable. This is said to be an inadequate rationale to sup-

port the law. The law, however, is constantly based on

notions of morality, and if all laws representing essentially

moral choices are to be invalidated under the Due Process

Clause, the courts will be very busy indeed. Even respon-

dent makes no such claim, but insists that majority senti-

ments about the morality of homosexuality should be

declared inadequate. We do not agree, and are unper-

suaded that the sodomy laws of some States should be

invalidated on this basis.

Accordingly, the judgment of the Court of Appeal is

Reserved.

Justice Blackmun, with whom Justice Brennan, Justice

Marshall, and Justice Stevens join, dissenting.

This case is no more about “a fundamental right to en-

gage in homosexual sodomy,” as the Court purports to

declare than Stanley v. Georgia (1969), was about a funda-

mental right to watch obscene movies, or Katz v. United

States (1967), was about a fundamental right to place inter-

state bets from a telephone booth. Rather, this case is about

“the most comprehensive of rights and the right most val-

ued by civilized men,” namely “the right to be let alone.”

The statute at issue, Ga. Code Ann. Section 16-6-2

(1984), denies individuals the right to decide for them-

selves whether to engage in particular forms of private,

consensual sexual activity. The Court concludes that Sec-

tion 16-6-2 is valid essentially because “the laws of . . .

many States . . . still make such conduct illegal and have

done so for a very long time.” But the fact that the moral

judgments expressed by statutes like Section 16-6-2 may

be “‘natural and familiar . . . ought not to conclude our

judgment upon the question whether statutes embodying

them conflict with the Constitution of the United States.’”

Like Justice Holmes, I believe that “[i]t is revolting to have

no better reason for a rule of law than that so it was laid

down in the time of Henry IV. It is still more revolting if

the grounds upon which it was laid down have vanished

long since, and the rule simply persists from blind imita-

tion of the past.” I believe we must analyze Hardwick’s

claim in the light of the values that underlie the constitu-

tional right to privacy. If that right means anything, it

means that, before Georgia can prosecute its citizens for

1750 ERA 10: Contemporary United States

making choices about the most intimate aspects of their

lives, it must do more than assert that the choice they have

made is an “abominable crime not fit to be named among

Christians.’”

In its haste to reverse the Court of Appeals and hold that

the Constitution does not “confe[r] a fundamental right

upon homosexuals to engage in sodomy,” the Court rele-

gates the actual statute being challenged to a footnote and

ignores the procedural posture of the case before it. A fair

reading of the statute and of the complaint clearly reveals

that the majority has distorted the question this case pre-

sents.

First, the Court’s almost obsessive focus on homosex-

uals is particularly hard to justify in light of the broad lan-

guage Georgia has used. Unlike the Court, the Georgia

Legislature has not proceeded on the assumption that

homosexuals are so different from other citizens that their

lives may be controlled in a way that would not be toler-

ated if it limited the choices of those other citizens.

Rather, Georgia has provided that “[a] person commits

the offense of sodomy when he performs or submits to

any sexual act involving the sex organs of one person and

the mouth or anus of another.” The sex or status of the

persons who engage in the act is irrelevant as a matter of

state law. In fact, to the extent I can discern a legislative

purpose for Georgia’s 1968 enactment of Section 16-6-2,

that purpose seems to have been to broaden the coverage

of the law to reach heterosexual as well as homosexual

activity. I therefore see no basis for the Court’s decision to

treat this case as an “as applied” challenge to Section 16-

6-2 or for Georgia’s attempt, both in its brief and at oral

argument, to defend Section 16-6-2 solely on the grounds

that it prohibits homosexual activity. Michael Hardwick’s

standing may rest in significant part on Georgia’s apparent

willingness to enforce against homosexuals a law it seems

not to have any desire to enforce against heterosexuals.

But his claim that Section 16-6-2 involves an unconstitu-

tional intrusion into his privacy and his right or intimate

association does not depend in any way on his sexual ori-

entation.

Second, I disagree with the Court’s refusal to consider

whether Section 16-6-2 runs afoul of the Eighth or Ninth

Amendments or the Equal Protection Clause of the Four-

teenth Amendment. Respondent’s complaint expressly

invoked the Ninth Amendment, and he relied heavily

before this Court on Griswold v. Connecticut (1965)

which identifies that Amendment as one of the specific

constitutional provisions giving “life and substance” to our

understanding of privacy. More importantly, the procedu-

ral posture of the case requires that we affirm the Court of

Appeals’ judgment if there is any ground on which respon-

dent may be entitled to relief. This case is before us on

petitioner’s motion to dismiss for failure to state a claim. It

is a well-settled principle of law that “a complaint should

not be dismissed merely because a plaintiff’s allegations do

not support the particular legal theory he advances, for the

court is under a duty to examine the complaint to deter-

mine if the allegations provide for relief on any possible

theory.” Thus, even if respondent did not advance claims

based on the Eighth or Ninth Amendments, or on the

Equal Protection Clause, his complaint should not be dis-

missed if any of those provisions could entitle him to relief.

I need not reach either the Eighth Amendment or the

Equal Protection Clause issues because I believe that

Hardwick has stated a cognizable claim that Section 16-6-

2 interferes with constitutionally protected interests in pri-

vacy and freedom of intimate association. But neither the

Eighth Amendment nor the Equal Protection Clause is so

clearly irrelevant that a claim resting on either provision

should be peremptorily dismissed. The Court’s cramped

reading of the issue before it makes for a short opinion, but

it does little to make for a persuasive one.

“Our cases long have recognized that the Constitution

embodies a promise that a certain private sphere of indi-

vidual liberty will be kept largely beyond the reach of gov-

ernment.” In construing the right to privacy, the Court has

proceeded along two somewhat distinct, albeit comple-

mentary, lines. First, it has recognized a privacy interests

with reference to certain decisions that are properly for

the individual to make. Second, it has recognized a privacy

interest with reference to certain places without regard for

the particular activities in which the individuals who

occupy them are engaged. The case before us implicates

both the decisional and the spatial aspects of the right to

privacy.

The Court concludes today that none of our prior cases

dealing with various decisions that individuals are entitled

to make free of governmental interference “bears any

resemblance to the claimed constitutional right of homo-

sexuals to engage in acts of sodomy that is asserted in this

case.” While it is true that these cases may be character-

ized by their connection to protection of the family, the

Court’s conclusion that they extend no further than this

boundary ignores the warning in Moore v. East Cleveland

(1977) against “clos[ing] our eyes to the basic reasons why

certain rights associated with the family have been

accorded shelter under the Fourteenth Amendment’s Due

Process Clause.” We protect those rights not because they

contribute, in some direct and material way, to the general

public welfare, but because they form so central a part of

Social Developments 1751