Phl 347
Lecture 17: The Right to Privacy

Privacy in Marriage and Sexuality

• Griswold v. Connecticut (1965)
• Stanley v. Georgia(1969)
• Eisenstadt v. Baird (1972)
• Roe v. Wade (1973)
• Bowers v. Hardwick(1986)

Griswold v. Connecticut

• Connecticut statute made the use of contraceptives (even by married couples) illegal.
• Court found that this was an unconstitutional violation of a constitutional right of "privacy".
• No such right is explicitly mentioned anywhere in the Constitution.

J. Douglas's Decision

• The "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
• "Various guarantees create zones of privacy": 1st, 3rd (quartering of soldiers), 4th, and 5th.

The Ninth Amendment

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Douglas concludes that the list of fundamental rights in the first 8 amendments is not to be taken as exhaustive.

The Tenth Amendment

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The federal courts are part of the government of the United States. Are they delegated a power to enforce unenumerated rights?

The 14th Amendment, again

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property, without due process of law..."

Two Key Provisions

• The "privileges and immunities" clause.
• The "due process" clause.

One or both of these can be interpreted as enabling the federal government to protect citizens against the violation of their fundamental rights (under the Bill of Rights) by the States: the "incorporation doctrine".

Different Bases for the Decision

• Douglas: the penumbra of the 1st, 3rd, 4th and 5th amendments.
• Goldberg, Warren, Brennan: 9th amendment.
• Harlan: due process clause of the 14th amendment.

Griswold: protection of marital privacy

• Douglas: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship....We deal with a right of privacy older than the Bill of Rights. Marriage is a coming together, for better or worse, hopefully enduring, and intimate to the degree of being sacred.
• Goldberg et al.:"...the rights to marital privacy and to marry and raise a family are ...fundamental... The state interest in safeguarding marital fidelity can be served by a more narrowly tailored statute..."
• Harlan: "The home derives its pre-eminence as the seat of family life... The right of privacy is not absolute. Thus, I would not suggest that adultery, homosexuality, fornicationn,m and incest are immune from criminal enquiry, however privately practiced... the intimacy of husband and wife is an essential and accepted feature of the institution of mariage, which the state has always fostered."
• White:"I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships.
• Black and Stewart, dissenting: the majority is claiming "the power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.

Eisenstadt v. Baird (1972)

• In this decision, a Rubicon is crossed: the right by unmarried couples to use contraceptives is held to be a fundamental one.
• In Griswold, the ultimate locus of privacy was the nuclear family (united by marriage). In Baird, it is the individual's sexual privacy that is at stake.

Other related cases

• Stanley v. Georgia (1969): right to privacy protects the individual's viewing of pornography in his own home.
• Roe v. Wade (1973): right to privacy includes a woman's (even a minor woman's) right to terminate her pregnancy -- not a joint right, held by the couple involved.

Bowers v. Hardwick (1986)

• Majority decided to uphold a Georgia statute making sodomy a crime.
• Majority opinion: J. White
• Dissenting: J. Blackmun

Is the freedom to commit sodomy a fundamental right?

• A fundamental right must be "deeply rooted in this Nation's history and tradition." (Moore v. E. Cleveland, 1977)
• Proscriptions of sodomy have ancient roots: common law.
• Forbidden by all 13 original states, by all but 3 of 37 states at time of the ratification of the 14th amendment.

Protected by privacy?

• Otherwise illegal conduct is not immunized by occurring in the home: illegal drugs, firearms, stolen goods.
• A rational basis (minimal scrutiny)?
• Georgia holds that sodomy is immoral.
• If this is not a rational basis, then all laws representing moral choices would be invalidated.

Blackmun's Dissent

• Right to privacy is the key.
• Privacy does not protect only the traditional nuclear family.
• Privacy is protected, not for a social good, but because it includes a central part of an individual's life.
• Individuals define themselves through intimate sexual relationships.

Is White's Position Consistent?

• In Griswold, White accepted that the state must not insist that all sex be procreative.
• What can be the rational moral objection to sodomy, once the sex/procreation link is severed?

Are Eisenstadt and Bowers consistent?

• In Eisenstadt, the Court extended a zone of sexual privacy (concerning contraception) to include unmarried couples.
• Yet, the Court refused to include sodomy within that protected zone.
• What is the principle?

Lawrence v. Texas (2003)

Reverses the decision in Bowers v. Hardwick.

Kennedy's Opinion for the Court

1. Sodomy laws were not historically directed at homosexuals. They weren't generally enforced against consensual acts between adults in private. They were part of a general condemnation of non-procreative sex.

2. The nation's laws and traditions. The Court must also be sensitive to an emerging consensus: "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their lives in matters pertaining to sex." Laws against sodomy have been repealed in 12 of the 25 states that had them. Only four states single out homosexual sodomy, as Texas does. Recent decisions, such as Casey and Romer v. Evans, through the traditional opposition against homosexuality into further doubt, as does the recent decision of the European Court of Human Rights.

3. Stare decisis (the power of precedent) is not absolute. Bowers v. Hardwick has been the subject of continuing opposition.

4. Kennedy does not reverse Bowers v. Hardwick on the question of whether there is a fundamental right to sodomy. Consequently, strict scrutiny is not triggered.

5. Nonetheless, Kennedy argues that the Texas statute fails to survive minimal scrutiny, because the law lacks a legitimate purpose. He quotes his own opinion in Planned Parenthood v. Casey: "Our obligation is to define the liberty of all, not to mandate our own moral codeÖ 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."

"The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice."

O'Connor's Concurring Opinion

O'Connor stand by Bowers. However, she votes to invalidate the Texas sodomy statute on the grounds that it violates the equal protection clause.

"Moral disapproval of a group cannot be a legitimate government interest under the Equal Protection clause because legal classification must not be 'drawn for the purpose of disadvantaging the group burdened by the law.'"

In response to Texas's argument that it was disadvantaging conduct, not a group of persons, O'Connor replies that the "conduct is closely correlated with being homosexual."

Scalia's Dissent

1. In Casey, the Court took the widespread criticism of Roe as a decisive reason for not reversing it, lest the moral authority of the Court be successfully challenged. In this decision, the Court inconsistently takes widespread criticism of Bowers as reason in favor of reversing it.

2. State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are sustainable only if Bowers' validation of laws based on moral choices is maintained. The Court's decision in this case "effectively decrees the end of all moral legislation."

3. O'Connor's position is illogical. A law against nudity targets "conduct that is closely correlated with being a nudist." Any law prohibiting any conduct would be unconstitutional, on O'Connor's reasoning, since that conduct would be "closely correlated" with the status of belonging to the group of people most inclined to engage in that conduct.

4. For these reasons, the Court's decision will in fact lead to the judicial imposition of homosexual marriage, as has happened in Canada. When Kennedy writes to the contrary, "Do not believe it."

---

Last updated November 2, 2003
Created by: Robert C. Koons
Send comments to: rkoons@mail.utexas.edu

http://www.utexas.edu/courses/phl347/| Philosophy Department | Prof. Koons | UT Austin Web Central