No one seems to be writing opinion pieces quite the way I would, so I decided to do it myself.

The name? Taverns are places where one goes to discuss the interesting events and things in the world, so this is my tavern.

I will offer my views on politics, economics, and whatever else strikes my fancy.
I will occasionally publish the entire article from another journal for purposes of causing discussion.

 

Right of Privacy Wins

The Houston Chronicle reports on today's Supreme Court decision. By a decision of 6 to 3, the Supreme Court threw out the conviction of two homosexual men having sex. This effectively gets the police out of the bedroom of homosexuals, a place they didn't belong in the first place.

I am a bit curious, however. According to the majority decision written by Kennedy Kennedy and four other justices said the 14th Amendment's Due Process Clause guarantees the privacy rights of all Americans, regardless of their sexual orientation, much as it guarantees the privacy right of women to decide whether to seek abortions.

From Findlaw, here is the fourteenth Amendment. U.S. Constitution: Fourteenth Amendment
Fourteenth Amendment - Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection

Amendment Text - Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

My guess is that the underlined portion is the critical part of the amendment, with a particular focus on the definition of 'Liberty'.

[Footnote 45] ''Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all. . . . This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property right. . . . A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.'' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116 , 122 (1873) (Justice Bradley dissenting

[Footnote 77] 165 U.S. 578, 589 (1897). ''The liberty mentioned in that [Fourteenth] Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.''

The discussion of Privacy on findlaw is rather lengthy. One thing I find quite interesting is Privacy has in a number of cases been identified as a core value of the Bill of Rights,250 but it was not until Griswold v. Connecticut251 that an independent right of privacy, derived from the confluence of several provisions of the Bill of Rights or discovered in the ''penumbras'' of these provisions, was expounded by the Court and actually used to strike down a governmental restraint.

''The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541- 42 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-54; id. at 460, 463-65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.''254 In the pornography cases decided later in the same Term, the Court denied the existence of any privacy right of customers to view unprotected material in commercial establishments, repeating the above descriptive language from Roe, and saying further: ''the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.''255


What is apparent from the Court's approach in these cases is that its concept of privacy is descriptive rather than analytical, making difficult an assessment of the potential of the doctrine. Privacy as a concept appears to encompass at least two different but related aspects. First, it relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences.256 Governmental commands to do or not to do something may well implicate one or the other or both of these aspects, and judicial decision about the validity of such governmental commands must necessarily be informed by use of an analytical framework balancing the governmental interests against the individual interests in maintaining freedom in one or both aspects of privacy. That framework cannot now be constructed on the basis of the Court's decided cases.

Look at the rest of the discussion in The discussion of Privacy on findlaw
It is an interesting discussion. If you can make any real decision based on the discussion, I would be interested in hearing it. It is, to say the least, confusing. It does appear to me that all the decisions are moving towards a right of privacy, but it is not at all clear to me what the parameters of that right are.

Let me make a clear statement here - I am not a lawyer and I don't even play one on the internet. This just seems to me to be an interesting question. Given a choice, I will decide in favor of a right of privacy from government (and religious) interference in the lives of individuals. I am reasonably sure such a right needs to include the sexual practices of informed and consenting adults. Beyond that, I don't know where it should go. Since Roe vs. Wade which is based on this right of privacy found in the fourteenth amendment is still upsetting so many troglodytes, I suspect we will all be looking at these questions again in the near future.

No bias here. I have no prejudices against troglodytes or dinosaurs. I just don't want them in my bedroom. Or my house. Or on my planet. Or .... Yeah.
posted by Richard at 10:35 PM