How Privacy Went Public

R.A. Hettinga rah at
Tue Feb 8 07:55:53 PST 2005



WSJ Online

 Wall Street Journal


How Privacy Went Public
Penumbras and emanations make strange bedfellows.

Tuesday, February 8, 2005 12:01 a.m. EST

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

 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.

 Mr. Taranto is editor of

R. A. Hettinga <mailto: rah at>
The Internet Bearer Underwriting Corporation <>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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