Friday, August 28, 2015

From "Privacy" to "Liberty" to "Sexuality"

by Michael Dorf

As I noted a week ago, last weekend I spoke on a plenary panel at the American Sociological Association meeting in Chicago. Here I'll give a brief report in the style of a What I Did Last Summer essay that an elementary student might write for the beginning of the term. As the title of this post suggests, I'll connect it to a broader issue in constitutional law.

The first thing I'll note is that the conference was enormous, both in terms of the number of attendees and the number of sessions. I was told there were over 6,000 attendees. I haven't checked exact figures, but that feels an order of magnitude larger than the Association of American Law Schools (AALS) annual meeting, which is my own point of reference for a large conference. I suppose that makes sense. There are just over 200 ABA-accredited law schools in the U.S. but there are nearly 3,000 four-year colleges (and about half that many two-year colleges), most of them with sociology departments. So, upon reflection, it's not surprising that the conference is very large.

I was at first surprised that the conference organizers were able to schedule such a large conference with hundreds of panels on "Sexualities in the Social World," as the conference was themed. Were there really that many sociologists whose work focuses on sex? However, as the introductory material to the conference pointed out, sexuality--broadly defined--touches on virtually every aspect of life, including law, religion, education, mass media, military conflicts, and much more. For example, a panel on sexuality in the work place featured the work of three scholars, one studying how gender norms affect African American professional men, another looking at how women fare in STEM fields, and a third who reported on the challenges facing LGBTQ K-12 public school teachers. And that was just one of over 300 scheduled sessions.

I could write many blog posts about the work being done by some of the people I met at the ASA conference, but here I simply want to highlight one small piece of the framing. The very first line of the introductory materials for the conference begins: "Sex usually occurs in private and is seen as deeply personal, yet it is also profoundly social." That's right of course, and it connects to a long-recognized oddity of the Supreme Court's jurisprudence involving sexuality. For a time, anyway, that jurisprudence was framed as a right to "privacy."

Partly this is a matter of historical accident. The leading modern case protecting sexuality is Griswold v. Connecticut, in which Justice Douglas rooted the right of married couples to use contraception in "notions of privacy surrounding the marriage relationship." Griswold's reliance on privacy is sometimes criticized on the ground that no one was prosecuted for using contraception in a marital bedroom in the particular case; it was a test case brought by Planned Parenthood officials who were charged as accessories for distributing contraceptives. This sort of criticism is overstated. As Professor Colb has explained, Griswold itself can really be defended as involving Fourth Amendment privacy. It does not follow, however, that all of the cases building on Griswold are best conceptualized as privacy cases.

Partly in response to the fact that the Fourteenth Amendment does not include the word "privacy," about 25 years ago the Court began shifting the nomenclature of the rights formerly recognized under the rubric of privacy. For example, in Obergefell v. Hodges, the majority opinion only uses the "right of privacy" phrase once, and then embedded in a quote. The dissents use the term in quotation marks to indicate disapproval.

In Obergefell, as in other opinions written by Justice Kennedy, the term “liberty” plays the role formerly played by “privacy.” “Liberty” has the advantage of appearing in the text of the Fourteenth Amendment and, in addition, it captures the greater breadth of interests at stake. Whereas married couples subject to the contraceptive use prohibition in Griswold really were at risk of suffering harm to marital privacy, the right to marry itself is mostly about public aspects of marriage—both concrete benefits such as inheritance and insurance eligibility as well as the intangible benefit of being able to hold oneself out as married. Justice Kennedy’s use of the term “dignity” can be understood as referring to these intangible benefits. Although some critics (such as Justice Thomas in his Obergefell dissent) are no happier about “dignity” than they are about “privacy,” it better captures some of the aspects of the reasons for protecting a right to marry.

One could imagine a line of doctrine specifically protecting a right to dignity and then expounding on its implications in particular cases. Indeed, case law in other constitutional democracies does just that. However, for Justice Kennedy (and thus the Court) dignity is not the substantive right itself, so much as it is an interest that counts as a reason for protecting particular aspects of liberty.

Yet “liberty” itself is too broad a term. Critics have a point when they say that just about anything that anyone wants to do could count as an exercise of “liberty.” Indeed, that’s why libertarians (like Randy Barnett) couch their account of constitutional rights as presumptively protecting liberty. But what looks to Barnett and other libertarians like a virtue of shifting to the language of liberty looks to most constitutional scholars and judges like a vice. If all  infringements on liberty are going to trigger heightened judicial scrutiny, then we really will be back in the Lochner era—as the libertarians want and the rest of us fear.

Accordingly, I understand that Justice Kennedy now uses “liberty” as a kind of term of art to mean more or less what used to be meant by “privacy.” Sometimes one sees the word “autonomy” in the case law and academic literature, but to my mind autonomy is no more specific than liberty, and thus has the same defects, while lacking the virtue of liberty’s connection to the constitutional text. I think that the doctrine would be cleaner if instead it were reformulated in more or less the following way:

What was once recognized as a right of “privacy” is more properly understood to encompass a number of fundamental interests, including: privacy from government snooping about one’s intimate affairs—sexual or otherwise--absent a very good reason (as in Griswold); the interest in forming and maintaining close personal relationships (encompassing not just marriage but the child-rearing cases); sexuality understood as sexual activity (generally undertaken in private but protected for reasons that go beyond preventing the government from acting as a peeping tom); and sexuality understood as identity, although much of this work could alternatively be delegated to notions of equality.

I’m not enough of a legal formalist to think that very much turns on what labels the courts use to group categories of cases. The Justices who oppose a right to same-sex marriage or a right to gay sex would continue to oppose these rights regardless of what the majority Justices called them. However, so long as the Court has moved away from the somewhat misleading term “privacy,” it may as well adopt more accurate terminology.

You’re welcome.