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.


Joe said...

Justice Stevens also favored "liberty" but yes it is open-ended if tied to the text -- "life, liberty and property." Note how the Due Process Clause was once used by both sides of the slavery debate.

I do think "privacy," if we use it properly (it is not "secrecy"), is a good term. The 1970s opinion Whalen v. Roe quoted someone that noted there were three components:

"The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion."

The term does itself have a broad reach. Prof. Anita Allen in "What Roe Should Have Said" spoke of four components; in a later blog comment she referenced six. There are various "privacy" torts. But, still, saying something is "private" (e.g., who I choose to marry is private, even if people know about it) vs. "public" is an important division. Some things are left to the state, some are private. "Private" rights were also referenced by the Framers, including a couple times in the Federalist Papers. "Privacy" and some synomyn was also present in various opinions before Griswold.

Kennedy has an open-ended view of 'liberty' that includes using the courts to limit the Commerce Clause, so "privacy" alone would not cover it. But, I continue to think "privacy" is good term. Other things like "autonomy" do factor in. The broad range of interests at issue cannot be easily summarized with a single word anyhow.

Samuel Rickless said...

Griswold is a confused opinion. The Court confused the right to choose and control what shall happen in one's intimate space (in the context of marriage) with the right that the government not intrude on the sacred precincts of one's marital bedroom (in order to find evidence of contraceptive use). The first right is a liberty or autonomy right, the second an informational privacy right. As subsequent decisions have made clearer, what matters in the case of contraceptive use is the liberty right, not the informational privacy right.

I'm not sure that Justice Kennedy's use of "dignity" is designed to capture the intangible public *benefits* of marriage. Dignity is a matter of moral status, not a matter of having certain benefits, though status and benefits are often correlated. What I hear Justice Kennedy saying is that homosexuals are entitled to respect, and this respect includes full recognition of their desires to form marital unions. This may be seen as too subtle a point, but I think it is important. For even if marriage did not come with public benefits, Justice Kennedy's point, I believe, is that homosexuals, because of their right to dignity, would still be entitled to it.

For the kinds of reasons brought out by Dworkin, there are benefits to representing various Court decisions, if properly interrelated, as stemming from the same overarching principle. Among other things, doing things this way systematizes the law, enabling us to see it as more coherent and predictable in its future applications. I would hive off the informational privacy concerns, which are the proper province of the Fourth and Fifth Amendments, and bring the "sexual activity", "close personal relationships", and "sexual identity" interests under a single umbrella of a right to liberty, buttressed by a right to dignity. Citizens of the United States have the right to engage in consensual sexual activity with whom they choose (as long as their partners are capable of, and give, informed consent), have the right to form close personal relationships with whom they choose, and have the right to define their sexual identities as they choose. I really do think it helps to see these latter rights as grounded in a certain conception of the right to liberty. I know that Justice Scalia likes to make fun of this, but "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."

Joe said...

Not clear how "intrude on the sacred precincts of one's marital bedroom" is an "informational" right. The case was easier than others since it was an "use" statute, barring use with the plaintiffs here guilty of aiding and abetting.

The opinion quoted a seminal opinion involving searches and seizures that described the "reach" being not merely security from trespass, but protection of the "sanctity of a man's home and the privacies of life." Contraception is a basic "privacies of life" issue with a use statute particularly blatant in that it invades the privacy of a particularly sensitive place in the home. Would be akin to invading a bathroom while someone took a bath or the like. This involves both protection from both exposure and protect to make decisions left to private life such as who you marry, sexual behavior in home, what you do in the bath etc.

Later opinions went beyond the facts but the wider language of the opinion and the concurrences, often relied upon, went further than the "use" statute here anyways. Griswold did, in a way largely ignored by the opinion (cf. Douglas' dissent in Poe v. Ullman for which doctor/patient discussion covered a whole 1/3 of his opinion), involve informational privacy given it immediately dealt with a birth control clinic. This arose too in Rust v. Sullivan.

Regarding the "heart of liberty" principle, see here: