How Privacy Went Public
Penumbras and emanations make strange bedfellows.

The Wall Street Journal, Tuesday, February 8, 2005

Last week a state judge held that New York City's refusal to issue marriage licenses to same-sex couples violates the constitutional right to privacy. When the Massachusetts Supreme Judicial Court mandated the recognition of same-sex marriage in 2003, it too cited the right to privacy. Whatever the merits of gay marriage, this is a case of judicial activism run amok, for the contemporary right to privacy has its roots precisely in the traditional definition of marriage.

"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Justice William O. Douglas asked rhetorically in the 1965 U.S. Supreme Court case of Griswold v. Connecticut. Then he answered: "The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

But the court did not long confine those "notions of privacy" to "the marriage relationship." In less than a decade it expanded the right of marital privacy into a right of reproductive privacy. In Eisenstadt v. Baird (1972) the court held that unmarried couples have the same right as married ones to obtain and use contraceptives, and the following year, in Roe v. Wade, the justices declared that the right to privacy includes abortion.

In 1986 the justices refused to take the next step of recognizing a right to sexual privacy. In Bowers v. Hardwick, they upheld a state law prohibiting homosexual sodomy between consenting adults. But in 1992 the Supreme Court set the stage for overturning Bowers. In Planned Parenthood v. Casey--a decision for which Justices Sandra Day O'Connor, Anthony Kennedy and David Souter claimed joint authorship--the court essentially upheld Roe, while asserting a new, breathtakingly expansive formulation of the right to privacy.

"Intimate and personal choices," the justices wrote, are "central to the liberty protected by the Fourteenth Amendment. 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." Justice Kennedy cited this language in his majority opinion in Lawrence v. Texas, the 2003 case that found sodomy laws were unconstitutional after all.

The U.S. Supreme Court has not yet taken up the question of same-sex marriage. But as Justice Antonin Scalia argued in his Lawrence dissent, it's hard to see how one could square a ban on same-sex marriage with what he mockingly called "the famed sweet-mystery-of-life passage." If the Constitution guarantees no less than the right to "define one's own concept of . . . the universe," how can government limit the definition of marriage to a man and a woman, or for that matter limit it at all? (Justice O'Connor argued in Lawrence that "preserving the traditional institution of marriage" is in fact a "legitimate state interest," but it's telling that none of the other five justices in the majority joined her concurrence.)

None of these cases rest on solid legal ground. As Justice Douglas acknowledged in Griswold, the right to privacy is to be found not in the Constitution but in its "penumbras" and "emanations." At the same time, there is a strong political consensus against the government intruding into people's bedrooms. If Griswold and Lawrence disappeared from the books tomorrow, it's unlikely any state would rush to re-enact laws against contraceptives or consensual sodomy.

Abortion and same-sex marriage, by contrast, do spark strong opposition, but not on privacy grounds. Abortion opponents argue that life before birth is worthy of legal protection, while the case against same-sex marriage is that it confers public approval on gay relationships--approval the New York and Massachusetts courts have given without public consent.

When judges find rights in hidden constitutional meanings, they run a twofold risk. If they limit those rights, striking balances and compromises between such competing values as privacy vs. life or privacy vs. morality, they act as politicians, only without democratic accountability. The alternative, to let those rights expand without limit, seems more principled and thus is more appealing. But it ignores democracy's most important principle of all: the right of the people to govern themselves.

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