As any law-school newbie can tell you, the surest way to win an argument is to be the one who defines the issue. Not surprisingly, some of our most intractable social policy disputes involve disagreement not just about the answer, but also about the question. Is the abortion-rights debate, for example, about a woman's right to choose or an unborn child's right to live? These are not merely two sides of a coin; they are two very different (and probably irreconcilable) ways of framing and thinking about the issue.
In 1986 the U.S. Supreme Court upheld the criminal prosecution in Georgia of two gay men whom a police officer inadvertently walked in on as they were having oral sex in the bedroom. Though attorneys for the men argued not their right to homosexuality, but their right to privacy, the Court's 5-4 opinion began thus: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." You knew right away where that one was headed.
Last month, in Lawrence v. Texas, the Court overruled the Georgia decision (an extraordinary step), rejecting not only the result, but also the way the issue had been framed. This Supreme Court — in an opinion authored by a Catholic, conservative Republican appointee, Anthony Kennedy — recognized that to focus the legal analysis on the kind of sex folks have "demeans the lives" of gay people, akin to suggesting that marriage is simply about the right to screw.
Instead, the Court explained, the issue is privacy — privacy as an essential component of the "liberty" we all enjoy, and of the dignity and respect that our lives and life choices are entitled to under the Constitution. The Court understood that there are gay people, not just gay sex acts; and it declared emphatically that the government simply cannot punish people for being gay and for doing what gay people do. Believe this: When six out of nine old farts operating in the rarefied world of our high court consider a still-controversial social issue like this and "get it" so completely, a sigh of relief is in order.
The Court's three right-wing idealogues, of course, were having none of it. Antonin Scalia penned another "scathing" (what else?) dissent, joined by William Rehnquist and Clarence Thomas. Though the opinion begs to be taken apart, suffice it to say that Scalia 1. understands gay people and their companionship choices as being about nothing more than deviant sex, 2. righteously defends a state's right to express, through criminal sanction, its moral disapproval of any non-marital sexual conduct; and 3. doesn't think enough of privacy rights to really address that issue. Thomas, in a separate opinion, flatly denies that the Constitution protects any so-called right of privacy.
So, what of this "right of privacy," and is it secure?
First it is important to distinguish those privacy concerns that abide only in the realm of civil law, where government intrusion is not involved. A department store cannot install surveillance cameras in the dressing room; a newspaper cannot print most people's financial records; another person cannot pretend to be you. Such "invasions of privacy" are treated like most other injuries to person or property, as primarily civil matters that can be redressed in a lawsuit, if necessary, brought by one individual against another. This body of law is not in play.
By contrast, the purpose of our "constitutional rights" — embodied in the Bill of Rights, the Due Process and Equal Protection clauses, and elsewhere — is to protect us not from each other, but from the government. (That is why, for example, a radio station's refusal to play the Dixie Chicks, while it may be censorship, does not violate the First Amendment; it involves only private parties.) The "privacy right" that was on the table in Lawrence v. Texas and the one with which all of us need to be most urgently concerned is the right to be free from government intrusion into our private lives.
But there is, indeed, no "right of privacy" expressed as such in the U.S. Constitution. A bit of history is useful here, however. The Bill of Rights was adopted as 10 amendments to the Constitution, largely because the Founders shared with the citizens of the day a conviction that people enjoy "inalienable rights" beyond the government's power to abridge or, likewise, to purport to "grant." There was considerable controversy over whether the listing of specific rights might be seen as limiting others. Enter the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Though neither the right of privacy nor any other rests on the Ninth Amendment, its history and intent have surely had some influence. The Bill of Rights does contain a variety of provisions indisputably premised on the proposition that every citizen enjoys a sphere of personal autonomy that the government must respect: freedom from unreasonable search and seizure, freedom to practice one's religion, protection against self-incrimination, etc. It was by extrapolation from these explicit guarantees that the Supreme Court in 1965 first enunciated a constitutionally protected right of privacy.
Many state constitutions contain their own privacy provisions; and because these operate independent of the case law developed by the U.S. Supreme Court, the scope of rights and protections they afford can be, and often is, broader. The privacy clause in Florida's Constitution is among the most clear and potent. It was adopted as a state constitutional amendment by popular referendum in 1980, and reads simply: "Every natural person has the right to be let alone and free from governmental intrusion into his private life."
The constitutional right of privacy embodies the core American value of personal autonomy — the sanctity of each individual's control over his or her body, beliefs and major life choices. The autonomy of the individual plainly is not a feature of all cultures and societies, but it is the air we breathe as Americans. As Justice Kennedy declared in the Lawrence case (quoting an earlier decision), "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." What American would disagree?
Well, three U.S. Supreme Court justices would, and we have a President eager to nominate more like them to the federal bench. The right of privacy, while not "enumerated," is as fundamental to Americans' sense of personal liberty as any other right. But it hangs by a thread, and we take it for granted at our peril.
Keith Roberts practiced law in Tampa for more than 20 years and continues to give his time to a number of human rights and cultural causes. The Weekly Planet welcomes guest column proposals from local residents on matters of public interest. Write [email protected].
