Transforming the Right to Privacy
- Post by: William C. Duncan
- September 24, 2015
In its last term, the U.S. Supreme Court decided two cases that implicated, in some way, privacy claims. One of these cases, Rodriguez v. United States, involved a claim that using a drug-sniffing dog at a traffic stop was unconstitutional. The other and far better known case involved the claim that the U.S. Constitution requires the states to issue marriage licenses to same-sex couples. The obvious question is how these utterly disparate cases could both be subsumed under the same legal slogan: a right to privacy.
Rodriguez v. United States is the easier to explain. If there is a right to privacy in the U.S. Constitution, the most likely textual source for that right would be the Fourth Amendment. The roots of the amendment go deep in English law to a principle enunciated by Sir Edward Coke in a 1604 case and famously paraphrased by William Blackstone in his influential lectures: “For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence.”
The Fourth Amendment codifies this general principle in a context of particular interest to Americans after the colonial period, in which they had been subject to wide-ranging searches for contraband. As John Dickinson complained in his 1767 Letters from a Farmer in Pennsylvania, Parliament had empowered customs officers “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods,” meaning goods on which no customs had been paid. The amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It supports a general principle that individuals, their homes, and possessions are to be treated as inviolate by public officials unless a specific judicial warrant is granted to make a search (or perhaps, in some interpretations, unless the search is inherently unreasonable).
The common use of the phrase “right to privacy” in legal contexts came later, though. In an 1890 article in the Harvard Law Review future Supreme Court justice Louis Brandeis and a co-author, Samuel Warren, argued for recognition of a new privacy right. Their article concludes: “The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?” For Brandeis and Warren, the Fourth Amendment-type protections against police intrusion were fine as far as they went. What the two were concerned about was the development of a public press which is “overstepping in every direction the obvious bounds of propriety and decency” and which has made gossip “a trade, which is pursued with industry as well as effrontery.” This concern may sound quaint in an age of social-media oversharing, but it was a serious one nonetheless. Brandeis and Warren proposed tort liability—court actions in which an individual may sue for injuries done to him or her by another person—for invasions of individual privacy and even suggested states might enact criminal statutes for interference with the privacy of others.
Though clearly distinct, the two concepts are not unrelated. Both the constitutional guarantee against unreasonable searches and the non-constitutional protection from invasions of privacy recognize a private sphere afforded significant protection. Not, to be sure, absolute protection. In the first scenario, a valid concern with law-breaking could lead to a warrant and a search, and in the second, self-disclosure could defeat concerns about invading privacy. But these concepts give substance to the idea of a sphere, connected to real persons and places, protected from government and other intrusion.
Interestingly, the two concepts converge in a famous dissenting opinion by Justice Louis Brandeis in a case involving wiretapping. In his Olmstead v. United States (1928) dissent, Justice Brandeis invokes the intent of the Constitution’s Framers:
They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
This position eventually was accepted as a binding interpretation of the Fourth Amendment’s guarantee.
A Shift in Thinking
When one thinks about the right of privacy in the context of constitutional law, however, one does not usually think of the kinds of considerations the Supreme Court used in applying Fourth Amendment law to drug-sniffing canines, but of the very different context of same-sex marriage. (Even though privacy, in the sense of being left alone, is not really an issue, since the Court construed the government’s tolerance of a private relationship as unconstitutional because it stopped short of public endorsement.) This new understanding is because the right of privacy, as currently understood by legal elites, means something very different than protection of a private sphere into which the state may not intrude. The new conception of privacy is tied to vague notions of choice and self-definition, is of much more recent vintage, and has been applied almost exclusively to the social controversies we associate with the sexual revolution.
Erwin Chemerinsky, a well-known legal academic, suggests the starting point for the emergence of privacy as choice is a pair of early twentieth-century cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Both cases involved state education laws applied to private, religious schools. In Meyer, the Nebraska law prohibited teaching German; in Pierce, Oregon’s law prohibited parents sending children to any non-public school. These decisions, however, are much closer to the original understanding of privacy as a limitation on government intrusion. In both cases, the restrictions were struck down. In Meyer, the Court raised ancient Greek proposals to make child-rearing an exclusive state function and commented:
Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.
This analysis suggests that, more than creating a new understanding of privacy as a mandate to the state to foster idiosyncratic personhood, these cases merely brought the family into the protected realm of private life. To be sure, the parents were making a choice the Supreme Court justices felt worthy of respect. Arguably, however, the justices were more concerned about overreach by the State, which had not been vouchsafed any authority to govern internal family affairs, than about ensuring a wide range of permissible lifestyle choices.
In fact, the modern understanding of a right to privacy emerged much later, in the 1965 decision Griswold v. Connecticut, which struck down a prohibition on the sale of birth control in Connecticut. This decision appears to be similar to the kinds of laws earlier Court decisions and constitutional principles had treated as suspect. The majority opinion suggests the case is similar to a traditional Fourth Amendment controversy, only with a family angle, asking at one point: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” A closer examination of Griswold makes clear that the resemblance to the earlier understanding is purely superficial. In fact, the decision itself suggests that protection of parental authority in Meyer and Pierce was an extension of a First Amendment protection of the right to associate, while the provenance of the right in this case was unclear.
But the discrepancy is more fundamental than that and illuminates the dramatic shift beginning to take place with Griswold.
Contrary to the implication in the case that the constitutional problem related to police snooping around bedrooms, there was in fact no evidence that this had ever happened in Connecticut. Certainly not in this case, in which the defendant was not a birth control user but a Planned Parenthood director, Estelle Griswold, who ran a clinic in New Haven. Indeed, an earlier challenge to the Connecticut law was not decided by the Court because the couples challenging had not been prosecuted. After the Court declined this challenge, Planned Parenthood openly sought to be prosecuted so they could argue against the law. To the press, Estelle Griswold said: “We would of course welcome prosecution by the state.” David Garrow’s history of the case says Griswold was “ecstatic” when police officers finally came to the clinic to investigate and made every effort to ensure the law would be forced “so that the law’s constitutionality could again be challenged before the U.S. Supreme Court.”
It appears that the right to privacy rationale for the Court’s decision came at the urging of one of the justices and his clerk, later to become a prominent federal court judge. Since that rationale persuaded a majority of the Court, the conceptual seed was planted in the law, notwithstanding the imprecise fit of a privacy claim to the sale of birth control by a business.
After the Griswold decision, the attention of those who wanted to restructure the law of family and sexuality focused on their next target: laws prohibiting abortion. They were helped by another contraception decision. In 1972, the Supreme Court struck down a Massachusetts contraception law and this time abandoned any pretense that its concern was with marital privacy. The law challenged in Eisenstadt v. Baird actually allowed physicians to prescribe contraceptives to married couples and only prevented the distribution of contraceptives, not their use, by non-physicians and to unmarried people. But the Court pronounced: “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.”
The fact pattern of this case tracks Griswold. The defendant, Bill Baird, was a former medical student who worked assiduously to get himself arrested for distributing contraceptives or promoting abortion or anything else along those lines. Finally, students at Boston University invited Baird to campus “to ‘distribute free lists of abortionists and birth control devices to interested coeds’” and give a public lecture. During his lecture he asked vice officers in the auditorium to “do your duty,” which they did when he handed out contraceptives to apparently unmarried students. Even the Planned Parenthood League of Massachusetts disassociated itself from the case because the challenged law did not “deny anyone his constitutional rights to use contraceptives.”
This second privacy decision, based on actions that were anything but private, became an important precedent for the next year’s abortion decisions, Roe v. Wade and Doe v. Bolton. Here, advocacy groups recruited two pregnant women, one in Texas and another in Georgia, to serve as parties in two test cases. The cast for the Texas case was joined by an abortion doctor who had been investigated by police who “wondered whether the scale of [his] profitable practice might be explained by a need to generate enough money to support an ongoing drug addiction,” a real concern since his medical license had earlier been revoked for writing narcotic prescriptions fraudulently. The Texas attorneys needed a doctor involved because the Texas abortion law did not provide for prosecutions of women who chose abortion, only doctors who provided them.
Once again, the Court made policy in a “privacy” case with a fact situation ill-suited to a traditional claim to a right to be left alone. The Court held the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” explaining its reasoning thus:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
Now, the Court did not say the right of privacy was unqualified. It did suggest that “at some point” the state’s interest in protecting a “potential human life” might qualify the privacy claim. In the companion Doe case, the Court made clear that any exceptions would have to be justified by health considerations. The justices construed “health” very broadly, however; a “medical judgment” in favor of abortion would be sustained for health reasons including “physical, emotional, psychological, familial, and the woman’s age.” In practice, there were no real limitations on the right to abortion, notwithstanding the earlier suggestion that the “potential” life of an unborn child might deserve solicitude.
This aspect of the decisions illustrates a really significant, indeed extremist shift in the Court’s conception of privacy. In previous cases, the Court at least claimed to be vindicating an individual’s right against the state (even if at one remove by protecting the right of a person the individual was engaged in public business with), but here the right of privacy is enforced against a family member of the “protected” party. The right of privacy is now far from a right to be left alone. While the earlier education cases had respected parental authority in recognition of a parent’s duty to the child, the Court here weaponized the privacy right so it could be used by one adult to “terminate” the life of her child. No longer would the right preserve families from state interference. Now, the state would conspire with one family member to rid herself of another. The Court would later make clear that this was an absolutely unilateral right, so that a father could be excluded from any say in the life of his unborn child. The Court’s ruling turned family members against one another, mother against child and wife against husband, with the state as the sole arbiter. The facts of these cases illustrate that a preferred claim to privacy can actually work to limit the right of another: the mother and whomever performs the abortion have a preferred right to an abortion, but the unborn child has no recognized or enforceable countervailing right to life.
The abortion litigation illustrates another ironic aspect of the effort to establish a right of sexual privacy in constitutional law. In her history of the American Civil Liberties Union’s involvement in moral issues, Leigh Ann Wheeler notes that the ACLU’s efforts were partially funded by the Playboy Foundation. That is not surprising, of course, since abortion on demand was consistent with the “Playboy philosophy” that sexual relations should have no unchosen consequences, but there is irony in that a company whose business model was selling nude photographs would champion “privacy.”
The Right to Self-Definition
Why would the establishment of a right to privacy so often arise from concerns only tangentially related to private conduct? Specifically, why do the claims so often involve market transactions? Two possible reasons stand out—one practical and the other ideological.
Professor Wheeler explains the practical considerations as they arose in the ACLU’s work on protecting access to pornography: “Reorienting the First Amendment around consumer rights and moving consumers into the vanguard as defenders of free speech helped the ACLU recruit complainants and recast the antiobscenity work of pressure groups as censorship.” The same concept was at work in the “privacy” cases where the ACLU and similar groups focused not on private conduct but on public transactions that facilitated the conduct at one remove. This focus tapped into “the individualistic, consumer-oriented ethos of the postwar era,” even if it ill-fitted the nominal claim to a right to be left alone.
The ideological reason is also extremely important and would become increasingly so. In sum, advocates of privacy were not content to establish a negative right of non-interference. For them, privacy really indicated a right of autonomous self-definition—the ability of each person to see effectuated their idiosyncratic view of themselves, even as against the expectations and claims of others. This, in turn, meant that they would need help. Sometimes in the form of consumer access, but increasingly, in the form of government assistance.
Thus, after Griswold, privacy-rights advocates “worked to establish a right to publicly funded birth control” and “argued that refusing to fund sterilizations and contraceptives for single women and unwed mothers represented an ‘invasion of the right to privacy.’” One ACLU attorney argued in a television interview that “many constitutional rights, including the right to plan your family, are no rights at all for many people, unless the government makes possible that exercise . . . ” This idea had some initial success, with one ACLU attorney claiming in 1976 that “the lower federal courts have . . . transformed the original principle that the state cannot interfere with a woman’s right to abortion (within the first two trimesters) into the principle that the state must affirmatively provide a woman with the means by which . . . she can exercise her right to an abortion.” Indeed, the next year, the Supreme Court extended the privacy right to include “state regulations that burden an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision.”
That principle did not gain unqualified success, however. In 1966, the Office of Economic Opportunity, headed by Sargent Shriver, rejected pressure to provide publicly-funded birth control to poor women, saying “the Constitution is [not] violated every time the OEO ‘discriminates’ against the poor by failing to support activities which can be financed privately by those who are more affluent.” In the wake of the abortion cases, the Supreme Court actually held the states were not required to fund abortions and could even discourage them.
That the full implications of the new privacy as self-definition claim did not gain immediate and unqualified success can be attributed in large part, in an ironic twist, to an invigorated private sphere which largely objected to abortion. It was relatively easy for advocates to persuade legal elites (the vote in Roe was 7-2), but churches and people of faith worked to secure, on more traditional privacy grounds, that medical personnel would not be forced to participate in abortions, nor taxpayers be required to fund them, and put continuing pressure on the states to enact as many restrictions as possible on the taking of human life. This may explain why, in 1986, when advocates brought a case to establish a significant extension of the right of privacy—to same-sex relations—the apparently chastened Supreme Court narrowly rejected the claim.
The proponents of a right to publicly facilitated self-definition found a champion in Justice Anthony Kennedy. In 1992, Justice Kennedy joined two other colleagues in an opinion that reaffirmed the right to abortion and included a full-throated defense of the self-definition claim:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Here, the plurality gussies up the idea of “privacy” by calling it “liberty” (to conform better to constitutional text), and adds a mystical gloss. The essential claim in this passage is that unless one can obtain birth control or abortion or whatever else, one cannot pursue the project of self-definition, or achieve “personhood” (presumably, the apotheosis of self-definition). Why? Because that project will always be hampered by the demands of others, particularly by those with whom we are in human relationships; by traditional moral understandings; and even by reality itself (in which choices have inevitable consequences, like babies).
A decade later, the Court was ready to use this conception to break new ground for the right of privacy. This case looked far more like a traditional right to be left alone, but as with the past privacy decisions, the facts were more complicated. The defendants in the case had been arrested, the Court claimed, because police had come into an apartment and observed two men “engaging in a sexual act.” Scholarship since the decision suggests that there was no sexual relationship between the men and that the police had inexplicably made that charge after entering the apartment without challenge based on a false report of violence.
None of this deterred the Court from announcing a very new view of privacy:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.
This free-floating, non-spatial privacy, the Court claims, had its “most pertinent beginning point” in Griswold and gathered momentum with Eisenstadt, Roe, and Carey.
The non-spatial nature of the new privacy right turned out well for advocacy organizations which would come forward in the next decade to challenge state marriage laws. It allowed them to successfully press the most implausible “privacy” claim yet—a privacy right to public recognition, in the form of a marriage license, of private same-sex relationships. The Court drew on Griswold, Eisenstadt, and Lawrence in announcing “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” In other words, the negative right to be left alone is long gone, replaced by a right to have the government facilitate one’s project of self-definition. Indeed, the Court says, the state demeans the “dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
The self-definition conception of privacy now appears to be entirely victorious. Its advocates had learned an important lesson from the heady first years of the right to privacy—tectonic shifts in constitutional doctrine usually take time. Justice Ruth Bader Ginsburg, who had been a director of the ACLU’s Women’s Rights Project in the 1970s and was architect of the ACLU’s abortion strategy, repeatedly wondered whether the Court could have gone slower on the abortion issue and avoided some of the criticism its Roe decision engendered.
But the advocates of self-definition learned more than just patience from the experience of the 1970s. They had learned that securing votes of Supreme Court justices was not enough if the radical new conception of privacy were to be fully enshrined in the law. Most importantly, they had learned that the real threat to the full acceptance in the law of this novel theory came from a mobilized private sphere.
Thus, the effort to redefine marriage paid more attention to bringing cultural pressure to bear to ensure there would be less potential opposition to a judicial mandate of same-sex marriage. When California’s Proposition 8 was challenged in court, the governor and attorney general sided with the plaintiffs. The law was defended by a private organization. The ire of the law’s opponents, too, was directed at private citizens and churches, with well-known instances of individuals losing their jobs because of their support for the law.
* * *
During the earlier era of privacy-rights litigation, even likely supporters had expressed concern that the new right to privacy could put at risk the old right to be left alone, with its respect for family autonomy and truly private life. There were well-grounded fears that abortion and sterilization, for instance, could be used coercively. In the introduction to Roe, the majority had even invoked “population growth, pollution, poverty, and racial overtones” as issues that “complicated” the question of abortion. Like concerns that a consumer’s “right” to access pornography could lead to unwanted exposure for others, some could see that the newly minted privacy rights like contraception, abortion, and sterilization could have implications for unwilling third parties. The ACLU, for one, cast its lot for the privacy consumers and “fought against privacy-based efforts to omit these services from public assistance programs.” Now, federal law even requires private employers to ensure access to contraceptives and abortifacients without any out-of-pocket costs to employees.
This is all consistent with the new theory of privacy as an entitlement to public assistance in developing one’s unique personhood. It is also intrusive in a way fundamentally at odds with the old understanding. Thus, as the movement to redefine marriage in the federal courts gained steam in the summer of 2014, the ACLU and other advocacy groups announced they would no longer support a formerly key legislative priority, the Employment Non-Discrimination Act (that would add sexual orientation and gender identity to federal discrimination laws), because that law contained modest religious exemptions. And while the recent same-sex “marriage” case was pending in the Supreme Court, Indiana’s passage of a religious freedom protection was vociferously attacked as a threat to homosexual rights.
Since the decision in June, the attempt to ensure the private sphere would not mobilize in opposition to the Court’s mandate stepped up. A number of states have announced that judges cannot decide not to perform same-sex marriages, or even to decline to perform marriages at all, for fear that such refusal would signal a lack of enthusiasm for the new marriage regime. A county clerk in Kentucky was even jailed when the state declined to accommodate her request that her name not be included on same-sex marriage licenses issued by the county. She was eventually released when cooler heads prevailed, but the message is clear—private qualms about the new meaning of marriage are entertained at personal and professional peril.
In such ways, the concern about private individuals being let alone by the government is being entirely displaced by a concern that even private opposition might somehow inhibit the new rights created by the courts.
This, then, is the chief irony of the Court’s creation of a new right to privacy (transforming a right to be left alone into a right to facilitated self-definition): it has become a tool to efface the truly private sphere.
William C. Duncan is Director of the Marriage Law Foundation.
 William Blackstone, Commentaries on the Laws of England 3:288 (1768).
 John Dickinson, “Letters from a Farmer in Pennsylvania” in Empire and Nation (Forrest McDonald, editor, 1962).
 U.S. Constitution, Amendment IV.
 Samuel D. Warren & Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4.5(1890): 193-220.
 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
 Erwin Chemerinsky, “Rediscovering Brandeis’s Right to Privacy,” Brandeis Law Journal 45 (2007): 643-57, at 643, 646.
 Meyer v. Nebraska, 262 U.S. 390, 402 (1923).
 Griswold v. Connecticut, 381 U.S. 479,485-486 (1965).
 Ibid., 482-83.
 Poe v. Ullman, 367 U.S. 497 (1961).
 David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade(Berkeley, CA: University of California Press, 1994),196.
 Ibid., 203.
 Ibid., 246-47.
 Eisenstadt v. Baird, 405 U.S. 438, 447 (1972).
 Garrow, Liberty and Sexuality, 320.
 Ibid., 322.
 Ibid., 404, 426.
 Ibid., 426.
 Ibid., 437.
 Roe v. Wade, 410 U.S. 113, 153 (1973).
 Ibid., 159.
 Doe v. Bolton, 410 U.S. 179, 192 (1973).
 Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 69 (1976).
 Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2012): 129, 134-139, 146.
 Ibid., 216.
 Ibid., 122-23.
 Ibid., 144.
 Carey v. Population Services International, 431 U.S. 678, 688 (1977).
 Wheeler, How Sex Became a Civil Liberty, 122.
 Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Maher v. Roe, 432 U.S. 464 (1977).
 Bowers v. Hardwick, 478 U.S. 186 (1986).
 Ibid., 851.
 Lawrence v. Texas, 539 U.S. 558, 563 (2013).
 Dahlia Lithwick, “Extreme Makeover: The Story Behind the Story of Lawrence v. Texas,” New Yorker, March 12, 2012.
 Lawrence at 562.
 Obergefell v. Hodges (2015).
 Wheeler, How Sex Became a Civil Liberty, 217-18.