Privacy vs. Morality

Reading the federal district court case striking down the Nebraska same-sex-marriage amendment launched me on a hyperlink-assisted voyage to a number of the major islands in the archipelago of the Supreme Court's privacy jurisprudence. Some of these I had visited before, though not recently. I had read descriptions of the others, but never actually visited them. The trip was fascinating, sometimes moving, and overwhelming relevant to -- indeed largely the source of-- what Justice Scalia calls "the Kulturkampf" that is going on in America today. It is a tour I would highly recommend you take, and, to make that easier, I am providing free "tickets" below:

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965): The start of it all. A married couple has a "fundamental" right to privacy with respect to their sexual relations that is protected by the Due Process Clause of the US Constitution (even though a right to privacy is nowhere mentioned in the Constitution) and a state ban that prohibits a doctor from providing contraceptives to a married couple is unconstitutional because it significantly intrudes on that right without serving any significant State interest.

LOVING v. VIRGINIA, 388 U.S. 1 (1967): "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival" and the state may not restrict that right so as to ban marriage between people of different races. (Note: the possible relevance of this holding to the issue of gay marriage was almost certainly not recognized by the court at the time. However, it has since been recognized by others, since the statute at issue did not preclude marriage as such. It only precluded marriage between two classes of people. What the court was saying, really, was that there is a fundamental right not merely to marry, but to marry the person you want to, and the state may not restrict that right based on some sense of what is "right" or "wrong").

STANLEY v. GEORGIA, 394 U.S. 557 (1969): The State may not criminalize the private possession of pornography.

EISENSTADT v. BAIRD, 405 U.S. 438 (1972): The right to sexual privacy recognized in Griswold is an individual right that extends to individuals whether or not married and the state may not make it a crime to provide contraception to individuals who are not married.

ROE v. WADE, 410 U.S. 113 (1973) : The right of a woman to control her own body is "fundamental" and the State may not entirely preclude abortions, although it may impose restrictions once the fetus achieves viability.

BOWERS v. HARDWICK, 478 U.S. 186 (1986) : This is the first of the post-Griswold cases involving homosexuals, although the anti-sodomy statute at issue actually applied to both homosexuals and heterosexuals. The Court characterized the issue as whether there was a "fundamental" right to commit sodomy, and, not surprisingly, concluded that there was not. Therefore, it held that statutes criminalizing sodomy (both heterosexual and homosexual) were not unconstitutional.

ROMER v. EVANS, 517 U.S. 620(1996) : The state may not enact a constitutional amendment barring the state and its political subdivisions from extending the state's anti-discrimination laws to homosexuals, lesbians and bisexuals.

LAWRENCE et al. v. TEXAS, Case no. 02-102 (June 26, 2003): Reversing Bowers. According to the Court this time around, the issue was not, as Bowers had held, whether there was a fundamental right to sodomy but whether there was a fundamental right to privacy with respect to sexual relations. Five of the Justices decided the case on substantive Due Process grounds, holding that, ala Griswold and Eisenstadt, state statutes criminalizing homosexual sexual relations were unconstitutional because they intruded on the fundamental right to sexual privacy without serving any legitimate state interest. Justice O'Connor agreed with the outcome, but based her concurring opinion on Equal Protection grounds (and would therefore not have overruled Bowers), since the Texas statute, unlike the Georgia statue at issue in Bowers, applied only to homosexual sodomy. In other words, O'Connor did not hold that homosexuals have a fundamental right to sexual privacy. Rather, she held that the sodomy statute was unconstitutional because there was no rational basis for the State's decision to criminalize it only for homosexuals.

As is often the case, the most interesting part of the Lawrence decision is Scalia's truly scathing dissent, in which he was joined by Justices Rhenquist and Thomas. No matter which side of this issue you come down on, I urge you to read it. If you disagree with the outcome, Scalia will provide you with all of the ammunition you could ever want. If you agree with the outcome, Scalia will, as always, make you think.

Among other things, Scalia points out that, if homosexual sodomy cannot be outlawed, it is very hard to find a constitutionally permissible rationale for bans on gay marriage. Indeed, he argues, it is very hard to find a basis for any law that is based primarily on morality. It is this aspect of Scalia's argument that primarily interests me about these cases.

As you will note, all of these cases are about sex, and each raises essentially the same question: to what extent (if at all) may the state regulate or criminalize purely private sexual activity where the only justification for such regulation is an effort to enforce a majoritarian sense of morality? With an amazing degree of consistency, despite significant changes in the make-up of the court over time, the answer is that the state's power in this regard is very limited, at least where there is no "victim" involved.

This last point -- about the absence of a victim -- is key, obviously. This line of cases does not lead inexorably to the de-criminalization of rape or child molestation. In the first of these there is no consent in fact and in the second there is no consent in law and probably not in fact either. The state has an obvious interest in protecting people from sexual predators and I doubt if anyone would argue that a right of privacy trumps that state interest. The existence of a putative victim is also what makes the abortion cases so difficult. Plainly there is more at issue in these cases than "just" morality.

But, there are lots of other kinds of "victimless sex" that are still criminalized solely for moral reasons in most if not all states. Prostitution is the most obvious example, but some others include polygamy and voluntary incest between consenting adults. Admittedly, in particular cases involving these types of sexual relations it may be hard to determine whether "consent" is freely and knowingly given; and if it is not, then the case would present an entirely different and much easier issue. However, in all three there are undoubtedly cases in which the participants are full grown adults acting entirely independently and voluntarily. What does the Griswold-to-Lawrence line of cases have to say about those? If we believe that majoritarian morality is not a basis, by itself, for regulating voluntary sexual relations among consenting adults, then are statutes outlawing prostitution, polygamy and incest between consenting adults also unconstitutional? And, if your answer to that question is "yes", how do you feel about laws against bestiality? In short, what role, if any, does morality have to play in state regulation of private consensual sex?

For now, at least, I just want to pose the question. If you want MY answer to it, you'll have to wait, since I haven't quite got it figured out in my own head yet. But, as prelude, let me say this: I have a great deal of trouble with any law that has as its sole basis the enforcement of majoritarian morality, and I am therefore inclined to argue that individual interests in privacy -- in "being let alone" -- outwieghs the State's interests in enforcing morality even in these cases.