In Skinner v. Oklahoma, the Supreme Court considered the constitutionality of a state statute that provided for sterilization of ‘‘habitual criminals.’’ The statute defined a habitual criminal as any person who has been convicted two or more times of felonies of ‘‘moral turpitude’’ either in Oklahoma or any other state. The statute was enacted on the assumption that criminal traits are inheritable.
The State of Oklahoma found that petitioner had been convicted of felonies of moral turpitude: stealing chickens in 1926, robbery with a firearm in 1929 and again in 1945. Because the jury’s only decision was whether petitioner could be sterilized without injury to his general health, it found that Skinner was subject to sterilization.
Petitioner challenged the constitutionality of the statute under the Fourteenth Amendment. Among the grounds argued was that the state could not exercise its police power in this way because of the dearth of scientific evidence on the inheritability of criminal traits. Petitioner argued also that his due process rights were violated when he was not given an opportunity to be heard on the issue of whether he is the potential parent of socially undesirable offspring. Finally, Skinner argued that sterilization was cruel and unusual punishment.
The Supreme Court, however, declined to address any of the above-mentioned claims, unanimously holding that the Oklahoma statute ‘‘fail[ed] to meet the requirements of the equal protection clause of the Fourteenth Amendment’’ (316 U.S. at 538). In discussing the inequalities of the statute, the Court provided one noteworthy example. Larceny was a felony of moral turpitude, and thus a person found guilty of larceny three times could be sterilized. Embezzlement was not a crime of moral turpitude, regardless of the amount taken, and therefore, despite the intrinsic similarity of the two crimes, they are subject to vastly different punishments.
Although recognizing that the states may exercise police powers in a somewhat asymmetrical way, when fundamental rights are the issue, the Court must evaluate the law using strict scrutiny. Thus, although invalidating the statute on equal protection grounds, the Court recognized a fundamental right to procreate, suggesting a substantive due process underpinning to the case. ‘‘We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race’’ (316 U.S. at 541).
Skinner would almost certainly be decided solely on substantive due process grounds today. Indeed, Skinner’s significance rests on its recognition of a fundamental right to marry and procreate and that any infringement of these basic liberties must be subject to strict scrutiny. In so doing, the Supreme Court foreshadowed the importance of procreation and marriage as subjects of liberty protection; for example, Griswold v. Connecticut, 381 U.S. 479 (1965) (statute forbidding use of contraceptives violates marital zone of privacy); Zablocki v. Redhail, 434 U.S. 374 (1978) (invalidating a statute, which required court approval to marry for noncustodial parents with child support obligations).
EMILY R. FROIMSON
Cases and Statutes Cited