Law of
the Bedroom
When it
Comes to Protecting Sexual Privacy, Why Does America Lag so Far Behind?
Boston
Globe, March 23, 2003
Box 2378, Boston, MA 02107
Fax: 617-929-2098
Email: letter@globe.com
By Kenji
Yoshino
Today,
Americans are vigorously debating the degree to which the opposition of the
international community should influence our foreign policy. What’s less
well known is that the United States is out of step with the world when it
comes to another matter–the legal protection of sexual privacy.
This
Wednesday, the US Supreme Court will hear Lawrence v. Texas, a case
which raises the question of whether the Court should overrule the 1986
precedent of Bowers v. Hardwick. In that case, the Court upheld a
Georgia sodomy statute against the argument that it violated the
constitutional right of privacy. So long as Bowers remains good law, states
are free to criminalize consensual acts of sexual intimacy in the home,
whether heterosexual or homosexual. (The majority of the 13 states that ban
sodomy today do not make any distinction between same-sex and different-sex
activity.)
The Lawrence
case thus presents an opportunity to reflect on our national understanding of
the right of privacy–and on how much, in an increasingly interdependent
world, we should be influenced by a clear international consensus in favor of
more robust protections of sexual privacy than our own.
The “right
of privacy” is nowhere enumerated in the US Constitution, but was built out
of shadows. In the 1965 case of Griswold v. Connecticut, the Supreme
Court observed that while the right of privacy was not explicitly guaranteed,
it could nonetheless be inferred from “penumbras” around those rights that
were enumerated in the Constitution, such as the Fifth Amendment’s right
against self-incrimination, the Third Amendment’s restrictions on the
quartering of soldiers, and the Fourth Amendment’s prohibition of
unreasonable searches and seizures. In short, the Court found that each of
these rights implied some protection of individual privacy, casting shadows
that overlapped until they coalesced into an independent “right of
privacy.”
But what is
the content of this right? The “private,” after all, carries a diverse set
of meanings, including the personal, the concealed, the sequestered, the
domestic, and the intimate.
The Court’s
constitutional privacy jurisprudence can fairly be said to draw on three
different conceptions of privacy–“decisional,” “relational,” and
“zonal.” Decisional privacy protects independence in making choices
central to personhood, such as whether to have a child. Relational privacy
protects intimate relationships in an individual’s life, such as that
between husband and wife. Finally, zonal privacy protects certain spaces, such
as the home.
The Griswold
case emphasized the relational and zonal conceptions of privacy. At issue in
the case was whether married couples had the right to use contraceptives. In
holding that the right of privacy protected such use, the Court observed the
impropriety of permitting police to invade “the sacred precincts of marital
bedrooms”–a phrase that captures the relational (“marital”) and zonal
(“bedroom”) aspects of privacy deployed in the case.
Predictably,
soon after Griswold was decided, an individual sued for the right to
use contraceptives outside of marriage. In the 1972 case of Eisenstadt v.
Baird, the Court also guaranteed that right, rejecting the argument that
privacy protections should be limited to the marital relationship. It stated:
“If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear or
beget a child.” With this statement, the Court added decisional privacy to
its prior conceptions of the right. One year later, in Roe v. Wade, the
Court extended the decisional conception to encompass a woman’s right to
have an abortion.
In its Bowers
decision of 1986, however, the Court found same-sex sodomy to be unprotected
by any of these conceptions of privacy. The Court’s five-member majority did
not address the dissenters’ contention that decisional privacy protected
“the fundamental interest all individuals have in controlling the nature of
their intimate associations.” The Court also dismissed the applicability of
relational privacy, finding that homosexual sodomy occurred outside
traditional relationships. Finally, the Court criticized the coherence of
zonal privacy, observing that activities such as adultery or incest were not
protected even when they occurred in the home.
The Bowers
decision has increasingly made the United States an outlier among peer
nations. While the Bowers Court rejected the notion that sexual
intimacy could be protected under any conception of privacy, international and
foreign courts have implied that it is protected under all three definitions.
Moreover, one international tribunal has suggested that US sodomy laws violate
the privacy provisions of a treaty to which the United States is party.
In stark
contrast to the Bowers Court, international and foreign courts have
long held that decisional privacy protects adult consensual same-sex sexual
activity. In 1981, five years before Bowers, the European Court of
Human Rights decided Dudgeon v. United Kingdom, which struck down
sodomy laws in Northern Ireland. Rendered by the world’s most influential
international human-rights court, the Dudgeon judgment now protects
more than 800 million residents of the 44 member states of the Council of
Europe.
The Dudgeon
Court treated as self-evident that an individual’s “private life...
includes his sexual life” and discussed the privacy right in terms of
intimacy and personhood, that is, in terms of decisional privacy. In the 17
years since Bowers, the European Court has twice reaffirmed the Dudgeon
decision.
Foreign
courts have also protected sexual privacy under a decisional theory. The South
African Constitutional Court recognized in 1998 that sexual expression “is
at the core” of “a sphere of private intimacy and autonomy.” Similarly,
in 1996, the Colombian Constitutional Court stated: “The full constitutional
protection of the individual... includes in its essential core the process of
autonomous assumption and decision regarding one’s own sexuality.”
An
international juridical consensus also suggests that same-sex sodomy can be
protected under relational privacy. Bowers rejected the relevance of
relational privacy by stating that “no connection between family, marriage,
or procreation on the one hand and homosexual activity on the other has been
demonstrated.”
But while the
link between family and homosexual activity may have been murky in 1986, it
has since been repeatedly acknowledged by courts sharing our common law
tradition. In 1999, the South African Constitutional Court unanimously held
that South Africa could not withhold from same-sex couples immigration
benefits that were available to different-sex couples.
In so
holding, the Court referred to the growing global recognition of the familial
dimension of same-sex partnerships, citing British, Israeli, and Canadian
authorities. The Court stated that gays and lesbians were capable “of
constituting a family, whether nuclear or extended, and of establishing,
enjoying, and benefiting from family life.” That year, the highest appellate
court in the United Kingdom found that a same-sex couple was a family for
purposes of a rent-control statute.
Finally,
international and foreign courts have challenged Bowers’s understanding of
zonal privacy. The Bowers Court rejected the applicability of the zonal
theory of privacy to same-sex sodomy, claiming that it would be hard “except
by fiat” to prevent the right from then being applied to “adultery,
incest, and other sexual crimes” committed in the home. Yet since Bowers,
international and foreign courts have negotiated this ostensible slippery
slope by using the principles of harm, consent, and commerce.
In 1997, the
European Court emphasized the harm principle in declining to extend Dudgeon
to protect consensual, sadomasochistic sexual activity in the home. Similarly,
in Dudgeon itself, the Court acknowledged that privacy protections
would be withheld where individuals were not able to give true consent
“because they [were] young, weak in body or mind, inexperienced, or in a
state of special physical, official or economic dependence.” Finally, the
European Commission of Human Rights has withheld privacy protections from
commercial sexual conduct, even if it occurs within the home.
These
tribunals have thus protected harmless consensual sexual activity under a
zonal conception of privacy without committing themselves to protecting the
crimes Bowers found worrisome–adultery (which, like sadomasochism,
would violate the harm principle), incest (which would violate the consent
principle, expansively construed), or sexual crimes like prostitution (which
would violate the commercial principle).
Of course,
the fact that international and foreign tribunals have offered greater privacy
protections for sexual intimacy than the US Supreme Court does not necessarily
mean that peer nations are more tolerant of homosexuality than the United
States. What it does mean is that other courts have taken the idea of sexual
privacy more seriously, understanding it to protect practices the general
public may abhor.
Given this
international juridical consensus against Bowers’s conception of
privacy, what should the US Supreme Court do? Chief Justice Rehnquist stated
in 1989 that “now that constitutional law is solidly grounded in so many
[foreign] countries, it is time that the United States courts begin looking to
the decisions of other constitutional courts to aid in their own deliberative
process.” While the practice of looking to peer tribunals was not new even
then, it is has become increasingly common: Almost all of the current Justices
have relied on foreign precedents or practices to support their rulings. Just
last year, the Court looked to the opinions of “the world community” in
concluding that the execution of persons with mental retardation would offend
civilized standards of decency.
The reason
for such deference is clear–ignoring such uniform foreign precedent risks
conflict with the United States’ closest global allies. In filing its brief
in the landmark 1954 case of Brown v. Board of Education, the
Department of Justice quoted then-Secretary of State Dean Acheson to make this
point.
Acheson
opined that school segregation had been “singled out for hostile foreign
comment in the United Nations and elsewhere. Other peoples cannot understand
how such a practice can exist in a country which professes to be a staunch
supporter of freedom, justice, and democracy.... [R]acial discrimination in
the United States remains a source of constant embarrassment to its Government
in the day-to-day conduct of its foreign relations; and it jeopardizes the
effective maintenance of our moral leadership of the free and democratic
nations of the world.”
The day is
either here or nigh when sodomy statutes will similarly embarrass the United
States. In Toonen v. Australia (1994), the UN Human Rights Committee
construed the privacy protections of the International Covenant on Civil and
Political Rights to bar the criminalization of sodomy. The Covenant applies to
149 states with combined populations of at least three billion people,
including the United States, which ratified the Covenant in 1992. In 1995, the
Committee expressed its concern “at the serious infringement of private
life” represented by US sodomy statutes, which arguably violate Toonen’s
interpretation of the Covenant.
Legal
concepts like “equality,” “liberty,” and “privacy” are not US
property, but have global meanings. When the Court hears the Lawrence case
this week, it will have to grapple with the irony that the concept of privacy
can today be understood only in the most public of contexts–the global
sphere.
- Kenji
Yoshino is the Samuel Rubin Visiting Professor at Columbia Law School. He
contributed to a Supreme Court amicus brief in Lawrence v. Texas.
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