The "Constitutional" Right to Privacy and Gay Marriage

By Carrie Chapman, Legal Expert and Guest Contributor

In light of the recent Senate vote against the amendment banning gay marriage, it may be useful to understand the actions of the legislative branch by examining the line of authority upon which the judicial branch has based its seemingly pro-gay marriage position.

Over the last century the Supreme Court has developed an idea that the Constitution, and more specifically the Bill of Rights, contains by implication a “right to privacy.” This right to privacy precludes the government from infringing upon certain private areas of the lives of its citizens; it was explicitly recognized by the Court in the case Griswold v. Connecticut (1965). Justice Douglas wrote,

Previous cases suggest that the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them substance. Various guarantees create zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one's person, house, papers, and effects, the Fifth Amendment right to not surrender anything to one's detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people. These cases press for recognition of the penumbral rights of privacy and repose.

Douglas argues these amendments preclude the government from entering upon specific areas of the lives of its citizens (home, association, rights retained to the people), creating a “penumbra [i.e. mist] of rights” that has formed the basis for every substantive due process case since. Douglas assumes the Constitution prevents the government from taking certain actions by law to regulate the private lives of citizens. So, when the Supreme Court now makes a decision concerning a citizen’s treatment under the law, they consider the citizens “right to privacy” – that area of an individual’s life which should be free from state regulation.

The Supreme Court cases leading up to the proclamation of the existence of a constitutional right to privacy may seem harmless enough, and were decisions that most of us would agree are in line with our moral and political understanding. Meyers v. Nebraska (1925) held that parents may decide for themselves if and when their children may learn a foreign language, based upon a fundamental liberty interest individuals have in the family unit. A parent’s right to control the method of their child’s education was recognized by the Supreme Court in Pierce v. Society of Sisters (1925), where the court decided that parents could not be forced to send their children to public schools instead of private schools, and that parents have a fundamental liberty in deciding what happens to their children. Meyer and Pierce are rulings most of us could agree on, but subtly begin the right to privacy argument.

Other cases concerning sex and sexuality provide more solid building blocks for the argument supporting the legalization of gay marriage. In the 1942 case Skinner v. Oklahoma, an Oklahoma law which enforced sterilization of repeat criminal offenders (for any repeat felon, even if the felony was merely robbery) was struck down under the theory that all people have a fundamental right to procreation. Griswold v. Connecticut (1965) tackled laws which prevented open access to contraceptive items and information, with the court striking down those laws on the precedent that people are able to make decisions about their families and procreation (see Skinner, Meyers, and Pierce). In 1973 the infamous Roe v. Wade case legalized abortion, with the Court holding that the woman had a “right to privacy” in her first trimester to abort a child.

Why does this matter? First of all, there is no explicit “right to privacy” delineated in the text of the Constitution. Justice Hugo Black wrote in the Griswold vs. Connecticut opinion, "'Privacy' is a broad, abstract and ambiguous concept." Citizens against gay marriage must push their own definition of privacy; while you may agree that the government should not interfere with the privacy of citizens to engage in interracial marriage, the state DOES have an interest in procreation. Economist Steven Leavitt, who conceives a controversial abortion-crime theory (controversial for those on both sides of the abortion fence) stated that “few people will listen when the subject is abortion,” and I would argue that many of us will not listen when the equally controversial subject of gay marriage and gay rights arises. Listening to the arguments of those who are proponents of gay rights will help us formulate meaningful counter-attacks for the public policy reasoning behind the extension of right to privacy to gay marriage.

The 11th Circuit Court of Appeals ruled in 2000 in Williams v. Pryor that the Alabama legislature operated within its rights when it banned sales of “sex toys,” holding that citizens do not necessarily have any right to buy them. The dissents in all of the aforementioned line of right to privacy cases, and the below gay rights cases, provide policy reasons that those against gay marriage should be promoting in their community and to their elected representatives.

Gay Rights and the Law
I have tried to include the most important gay rights legislation that have lead up to the gay marriage debate, including a counter argument in a following parenthetical.

Sodomy statutes
In the 2003 case of Lawrence v. Texas, the US Supreme Court overruled a 1986 case that upheld the conviction of two gay men for violating sodomy laws. As the crime involved consensual conduct in the bedroom of one of the men's homes, the Court in Lawrence held that making private sexual conduct a crime was a violation of due process. (Pro-sodomy statute argument: the state may well express interest in private sexual conduct when that private sexual conduct will result in less children being born to further the interests of the state)

Equal protection
The U.S. Supreme Court struck down a Colorado state constitutional amendment that would preclude all legislation that would prohibit discrimination against persons based on their sexual orientation. The Court said that the state constitutional amendment was motivated by animus to a particular class of people and thus, under equal-protection analysis, the amendment was not rationally related to legitimate state interests. (Pro-amendment argument: the Colorado amendment was intended to prevent homosexuals from getting special treatment under the law simply because of their sexual orientation.)

Marriage
The Supreme Court of Massachusetts in 2003 held in Goodridge v. Department of Public Health that same-sex couples have a right to marry under the state constitution's principles of individual liberty and equality. In 1999, the Supreme Court of Vermont held that same-sex couples do not necessarily have a right to marry, but they do have a right under the state constitution to the same benefits and protections as different-sex couples who marry. In 1993, the Supreme Court of Hawaii held that prohibiting same-sex marriage might be sex discrimination under the state constitution; following that decision Hawaii amended its constitution to allow the legislature "to reserve marriage to opposite-sex couples.” The dissent of the Hawaii case, written by Judge Heen, finds that the purpose of the marriage law is "to promote and protect propagation." Appellate courts in six other states, including Arizona, the District of Columbia, Kentucky, Minnesota, Pennsylvania, and Washington have held that prohibitions of same-sex marriages were constitutional under different principles, including due process and equal protection. In the landmark Massachusetts Goodridge case, the dissent penned by three justices stated that the decision of whether to allow same-sex couples to marry should be made by the legislature, not the courts.

Conclusion
One of my law professors loves to reiterate that “there is no pancake so thin that it does not have two sides.” To understand your opponent’s argument allows you to work on the flaws in your own. So, although I do not support gay marriage, I concede that gay rights proponents have a good argument: laws that infringe upon the private rights of others means a restriction of privacy for all. But, to counter that argument, aren’t ALL laws essentially a restriction of our privacy, of our “right to choose”? And can’t legislation be created that allows the government to only infringe on very specific areas of life? I choose to follow the laws of this country and give up some of my freedom when I drive, by following (or relatively following) the speed limit; I choose to give the freedom to drive at whatever speed I like because it will best benefit myself and society to abide by those rules – there will be less death, and I value my life and the lives of others.

With gay marriage, I choose to limit the definition of marriage to the union of a man and a woman, not because I do not value the right to choose to marry, or the right for men and women of different races to marry, but because I am willing to give up my right to a homosexual marriage because I think a marriage between a man and woman will best benefit society – life is created.

Major public policy decisions – like what to do with criminals or abortion--come down to that: life and death. What we should do about gay marriage should not be simplified to the legal argument that limiting the privacy of one recognizes the privacy of all. The societal and biological implications that allowing gay marriage would have on our society is the debate we should be having and is the debate the silent majority in Congress and the United States at large is too cowardly to engage.

Judge Cordy in the dissent of the Massachusetts Goodridge case makes these arguments succinctly. He argued that the state’s interest in heterosexual marriage are not irrational, noting that marriage has always been understood as the appropriate situation for procreation and child rearing as sexual intercourse between men and women can result in conception; sexual relationships other than heterosexual ones cannot result in procreation. Judge Cordy also noted that marriage has successfully advanced this interest throughout time and the relevant social science research comparing children raised by same-sex couples is small, methodologically flawed, and tentative. Therefore, states may rationally decide that marriage should not be redefined to include same-sex couples.

For further reading on the subject, may I suggest the following law review article citations - I’m happy to access these articles for you and email them to you:
30 Fam. L.Q. 339
64 Alb. L. Rev. 889
19 Berkeley Women's L.J. 19
2 Ave Maria L. Rev. 153