The Brief History of the "Right to Privacy"
Part I discussed the fatal contradiction within the Windsor decision, allowing the federal government to define marriage different than state definitions in other instances, but not for DOMA. Today, I wanted to discuss the line of cases leading to Windsor to provide a backdrop for part III, where I will explain how the reasoning behind this line of cases is problematic. In Windsor, the majority opinion states that section 3 of DOMA served no other purpose than to “demean the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” As Scalia correctly points out in dissent in both Windsor and Lawrence, the constitution nowhere provides protection for homosexual conduct. In reality, the constitution protects no sexual conduct at all.
In Lawrence, Justice Kennedy explained the path that led to the decision that homosexual conduct is protected by the Constitution, despite clear precedent in decisions such as Bowers v. Hardwick that sodomy is not protected conduct. As Kennedy observes, the line of erroneous reasoning began with Griswold v. Connecticut.
In Griswold, the court chose to invalidate a state law prohibiting the use of contraceptive drugs and devices. The court defined a new “right to privacy” as the interest protected in their decision, specifically emphasizing the marital relation and the protected space of the marital bedroom. It should be noted that this new “right to privacy” is in no way connected with the long accepted “right to privacy” granted by the fourth amendment against unreasonable searches and seizures. Instead, the new “right to privacy” is based off “substantive due process rights,” or rights by the fact that the protected thing is deeply rooted in this Nation’s history and tradition.
But the court soon expanded this newfound “right” to include certain decisions regarding sexual conduct beyond the marital relationship. In Eisenstadt v. Baird, the court determined a law prohibiting the distribution of contraceptives to unmarried persons was unconstitutional, because it denied unmarried people “equal protection” of sexual conduct. The Eisenstadt court exclaimed, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Further expanding on this new “right to privacy,” the court then decided the infamous Roe v. Wade. In Roe, the court struck down a Texas law prohibiting abortions, recognizing a woman has a right “to make certain fundamental decisions affecting her destiny.” Apparently, such fundamental decisions extend beyond choosing to engage in conduct which may result in a child and/or choosing to use contraceptive measures to prevent fertilization. Roe instead provided women the option to choose not to live with the consequences of their actions. (A right by the way which somehow men are not equally entitled to, but that is a discussion for another day).
Following Roe, the court again expanded the new “right to privacy” to include decisions made by persons legally unable to make decisions. In Carey v. Population Services Int’l, a plurality decision struck down a New York law prohibiting the sale or distribution of contraceptive devices to persons under 16 years of age. Subsequently, persons who could not even purchase spray paint, for fear the person might misuse it, are protected from “governmental intrusion into matters so fundamentally affecting [that] person as the decision whether to bear or beget a child.”
This line of reasoning led Kennedy to determine that the “right of privacy” to engage in sexual conduct extended beyond the marital relationship to include even homosexual conduct, which had been prohibited by state laws for “hundreds” of years, though rarely prosecuted due to a lack of evidence. Kennedy summed up the sentiments to say that
Adults may choose to enter upon [a relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.So far, we’ve seen that there is a fatal flaw in the Windsor ruling. And we’ve followed some of the linkage from case to case as the Court somehow discovered additional “rights” to sexual behavior protection in the Constitution. But we have not yet reached the end of connecting the dots. I am again at my word limit, so I will continue this for one more day to show the logical conclusion to this line of reasoning.