The Mystery of Life in the Lower Courts: The Influence of the Mystery Passage on American Jurisprudence
![handle is hein.journals/howlj51 and id is 349 raw text is: The Mystery of Life in the
Lower Courts:
The Influence of the Mystery Passage
on American Jurisprudence
TRENT L. PEPPER*
INTRODUCTION
At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.'
The mystery passage has been the subject of substantial contro-
versy in the more than fifteen years since it was first articulated by the
Supreme Court in Planned Parenthood of Southeastern Pennsylvania
v. Casey.2 It has been praised for bring[ing] the right to privacy into
a more public, transcendent realm and recogniz[ing] a more public
and potent right to dignity and respect,''3 and it has been dismissed as
an embarrassing muddle,4 faux philosophic argument,5 and re-
sembling a bad freshman philosophy paper.'6 Although lauded by
some for its distinguished pedigree,7 it also has been criticized for
being grounded in modish and untested philosophical notions and
* Juris Doctor, Ave Maria School of Law, 2007.
1. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
2. Id.
3. Nancy C. Marcus, Beyond Romer and Lawrence: The Right to Privacy Comes Out of the
Closet, 15 COLUM. J. GENDER & L. 355, 400 (2006).
4. Richard D. Mohr, The Shag-a-Delic Supreme Court: Anal Sex, Mystery, Destiny,
and the Transcendent in Lawrence v. Texas, 10 CARDOZO WOMEN'S L.J. 365, 379 (2004).
5. Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 UTAH
L. REV. 665, 669 (1997).
6. John H. Garvey, Control Freaks, 47 DRAKE L. REV. 1, 3 (1998).
7. Mary Anne Case, Of This and That in Lawrence v. Texas, 55 Sup. CT. REV. 75, 119
(2003) (citing Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) and
Poe v. Ullman, 367 U.S. 497, 550 (1961) (Harlan, J., dissenting)); see also Philip Chapman, Be-
yond Gay Rights: Lawrence v. Texas and the Promise of Liberty, 13 WM. & MARY BILL RTS. J.
2008 Vol. 51 No. 2](ViewImageLocal?handle=hein.journals/howlj51&div=18&collection=&method=preview&ext=.png&size=3)
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The Mystery of Life in the Lower Courts: The Influence of the Mystery Passage on American Jurisprudence
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