SKINNER v. OKLAHOMA 315 U.S. 535 (1942)

In Skinner the Supreme Court laid a doctrinal foundation for two of the most important constitutional developments of the twentieth century: the expansion of the reach of the equal protection clause and the reemergence of substantive due process as a guarantee of personal freedoms. The case arose out of an Oklahoma law authorizing sterilization of a person convicted three times of "felonies involving moral turpitude." Skinner, convicted first of chicken stealing and then twice of armed robbery, was ordered sterilized by the state courts. The Supreme Court unanimously reversed, holding the sterilization law unconstitutional. Surely the decision seemed easy; no doubt the only serious question was the appropriate ground for decision.

The opinion of the Court, by Justice william o. douglas, rested on equal protection grounds. The sterilization law contained an exception for violations of "prohibitory [liquor] laws, revenue acts, embezzlement, or political offenses." Although the state might constitutionally impose different penalties on embezzlement and other forms of stealing, it could not use so artificial a distinction as the basis for depriving someone of the right of procreation, "one of the basic civil rights of man." Because sterilization permanently deprived a person of a "basic liberty," said Justice Douglas, the judiciary must subject it to " strict scrutiny." Here the state had offered no justification for the belief that inheritability of criminal traits followed the line between embezzlement and chicken stealing.

Surely the Court also recognized that the sterilization law's exceptions were white collar crimes. Justice Douglas said, "In evil or reckless hands" sterilization could "cause races or types which [were] inimical to the dominant group to wither and disappear." (The year was 1942; the Nazi theory of a "master race" was a major ideological target in world war ii.) Sterilization of some but not all who commit "intrinsically the same quality of offense" was " invidious " discrimination in the same way that racial discrimination was.

Chief Justice harlan fiske stone, concurring, found the Court's equal protection rationale unpersuasive, but found a denial of procedural due process in the sterilization law's failure to give a three-time felon like Skinner an opportunity to show that his criminal tendencies were not inheritable. Given the prevailing scientific opinion that criminal traits were not generally inheritable, an individual should have a chance to contest the law's assumption. (This style of reasoning was in vogue briefly during the 1970s under the name of irrebuttable presumptions.) Justice robert h. jackson agreed with both the Douglas and the Stone approaches.

Close to the surface of both the Douglas and the Stone opinions was a strong skepticism that any criminal traits were inheritable. Such an objection would seem fatal to Oklahoma's law on substantive due process grounds. But the Court had very recently abandoned substantive due process as a limit on economic regulation, and in doing so had used language suggesting the complete demise of substantive due process. Both Douglas and Stone seemed to be avoiding the obvious ground that the law arbitrarily deprived Skinner of liberty. But Skinner can be seen today as not only a forerunner of a later Court's strict scrutiny analysis of equal protection cases involving fundamental interests and suspect classifications but also a major early precedent for the development of a constitutional right of privacy as a branch of substantive due process.

Kenneth L. Karst
(1986)

(see also: Freedom of Intimate Association; Reproductive Autonomy.)

Bibliography

Karst, Kenneth L. 1969 Invidious Discrimination: Justice Douglas and the Return of the "Natural-Law-Due-Process Formula." UCLA Law Review 16:716–750.