Amdt5.4.5.2.4.3 Private Sexual Activity

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Court has also briefly considered yet another aspect of privacy — the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home. In Stanley v. Georgia, 1 the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns. 2 Nonetheless, the Court based its decision upon a person’s protected right to receive what information and ideas he wishes, which derives from the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,3 and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of such activity harming society. 4

The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts, could arguably be practiced in the privacy of one’s home with little apparent effect on others. Stanley, however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home. 5 In Paris Adult Theatre I v. Slaton, 6 which upheld the government’s power to prevent the showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of individual character and public morality, and improvement of the quality of life and tone of society. It is argued that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice – those in politics, religion, and expression of ideas – are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.7

Furthermore, continued the Court in Paris Adult Theatre I, [o]ur Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to maintain a decent society.’8

Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick. 9 The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not implicitly create protection for voluntary sexual conduct [in the home] between consenting adults.10 Instead, the Court found Stanley firmly grounded in the First Amendment,11 and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers has since been overruled by Lawrence v. Texas12 based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.

So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior. 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.13

Despite the limiting language of Roe, the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services Int'l, 14 recognition of the constitutional protection of individual autonomy in matters of childbearing led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16. 15 The Court significantly extended the Griswold-Baird line of cases so as to make the decision whether or not to beget or bear a child a constitutionally protected right of privacy interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests.

For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick, 16 where the Court by a 5-4 vote roundly rejected the suggestion that the privacy cases protecting family, marriage, or procreation extend protection to private consensual homosexual sodomy, 17 and also rejected the more comprehensive claim that the privacy cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.18 Heavy reliance was placed on the fact that prohibitions on sodomy have ancient roots, and on the fact that half of the states still prohibited the practice. 19 The privacy of the home does not protect all behavior from state regulation, and the Court was unwilling to start down [the] road of immunizing voluntary sexual conduct between consenting adults.20 Interestingly, Justice Blackmun, in dissent, was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited. 21

Yet, Lawrence v. Texas, 22 by overruling Bowers, brought the outer limits of noneconomic substantive due process into question by once again using the language of privacy rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.23

Although it quarreled with the Court's finding in Bowers v. Hardwick that the proscription against homosexual behavior had ancient roots, Lawrence did not attempt to establish that such behavior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. Although the Court seems to recognize that a state may have an interest in regulating personal relationships where there is a threat of injury to a person or abuse of an institution the law protects,24 it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected. 25 Thus, the parameters for regulation of sexual conduct remain unclear.

For instance, the extent to which the government may regulate the sexual activities of minors has not been established. 26 Analysis of this questions is hampered, however, because the Court has still not explained what about the particular facets of human relationships – marriage, family, procreation – gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court’s observation in Roe v. Wade that only personal rights that can be deemed 'fundamental' are included in this guarantee of personal privacy, occasioning justification by a compelling interest, 27 provides little elucidation. 28

Despite the Court's decision in Lawrence, there is a question as to whether the development of noneconomic substantive due process will proceed under an expansive right of privacy or under the more limited liberty set out in Roe. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now settled to be a liberty protected under the due process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems open to question.

Footnotes

  1.  Jump to essay-1394 U.S. 557 (1969).
  2.  Jump to essay-2In fact, the Court passed over a subsidiary Fourth Amendment issue that was available for decision in favor of a broader resolution. 394 U.S. at 569-72. (Stewart, J., concurring).
  3.  Jump to essay-3394 U.S. at 564-65.
  4.  Jump to essay-4The rights noted by the Court were held superior to the interests Georgia asserted to override them. That is, first, the state was held to have no authority to protect an individual’s mind from the effects of obscenity, to promote the moral content of one’s thoughts. Second, the state’s assertion that exposure to obscenity may lead to deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly recognized.
  5.  Jump to essay-5United States v. Reidel, 402 U.S. 351, 354-56 (1971) (no right to distribute obscene material for private use); United States v. Thirty-seven Photographs, 402 U.S. 363, 375-76 (1971) (no right to import obscene material for private use); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) (no right to acquire obscene material for private use); Osborne v. Ohio, 495 U.S. 103, 109-111 (1990) (no right to possess child pornography in the home).
  6.  Jump to essay-6 413 U.S. 49 (1973) .
  7.  Jump to essay-7413 U.S. at 64. Similar themes can be found in Roe v. Wade, 410 U.S. 113, 148 (1973), decided the year before. Because the Court had determined that the right to obtain an abortion constituted a protected liberty, the State was required to justify its proscription by a compelling interest. Departing from a laissez faire, free will approach to individual autonomy, the Court recognized protecting the health of the mother as a valid interest. The Court also mentioned but did not rule upon a state interest in protecting morality. The Court was referring not to the morality of abortion, but instead to the promotion of sexual morality through making abortion unavailable. Roe v. Wade, 410 U.S. 113, 148 (1973).
  8.  Jump to essay-8Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-63, 63-64, 68-69 (1973); see also id. at 68 n.15. Although it denied a privacy right to view obscenity in a theater, the Court recognized that, in order to protect otherwise recognized autonomy rights, the privacy right might need to be expanded to a variety of different locations: [T]he 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. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 n.13 (1973). Thus, arguably, the constitutional protection of places (as opposed to activities) arises not because of any inherent privacy of the location, but because the protected activities normally take place in those locales.
  9.  Jump to essay-9478 U.S. 186 (1986).
  10.  Jump to essay-10478 U.S. at 195-96. Dissenting, Justice Blackmun challenged the Court’s characterization of Stanley, suggesting that it had rested as much on the Fourth as on the First Amendment, and that the right of an individual to conduct intimate relationships in . . . his or her own home [is] at the heart of the Constitution’s protection of privacy. Id. at 207-08.
  11.  Jump to essay-11478 U.S. 186, 195 (1986).
  12.  Jump to essay-12539 U.S. 558 (2003).
  13.  Jump to essay-13Roe v. Wade, 410 U.S. 113, 152 (1973).
  14.  Jump to essay-14431 U.S. 678 (1977).
  15.  Jump to essay-15431 U.S. at 684-91. The opinion of the Court on the general principles drew the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented.

    The limitation of the number of outlets to adults imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so and was unjustified by any interest put forward by the state. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring whether the restrictions serve any significant state interest . . . that is not present in the case of an adult. This test is apparently less rigorous than the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The attempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors’ sexual activity, the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from engaging in sexual activity. Id. at 691-99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717.

  16.  Jump to essay-16478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion.
  17.  Jump to essay-17[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy. 478 U.S. at 190-91.
  18.  Jump to essay-18Justice White’s opinion for the Court in Hardwick sounded the same opposition to announcing rights not readily identifiable in the Constitution’s text that underlay his dissents in the abortion cases. 478 U.S. at 191. The Court concluded that there was no fundamental right [of] homosexuals to engage in acts of consensual sodomy, as homosexual sodomy is neither a fundamental liberty implicit in the concept of ordered liberty nor is it deeply rooted in this Nation’s history and tradition. 478 U.S. at 191-92.
  19.  Jump to essay-19478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified this theme, concluding that constitutional protection for the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching. Id. at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id.
  20.  Jump to essay-20The Court voiced concern that it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. 478 U.S. at 195-96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217-18) suggested that these crimes are readily distinguishable.
  21.  Jump to essay-21478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomy by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219. Justice Blackmun would instead have addressed the issue more broadly as to whether the law violated an individual’s privacy right to be let alone. The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy. 478 U.S. at 204-06. This position was rejected by the majority, however, which held that the thrust of the fundamental right of privacy in this area is one functionally related to family, marriage, or procreation. 478 U.S. at 191. See also Paul v. Davis, 424 U.S. 693, 713 (1976).
  22.  Jump to essay-22539 U.S. 558 (2003).
  23.  Jump to essay-23539 U.S. at 567.
  24.  Jump to essay-24539 U.S. at 567.
  25.  Jump to essay-25The Court noted with approval Justice Stevens' dissenting opinion in Bowers v. Hardwick, stating that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. 539 U.S. at 577-78, citing Bowers v. Hardwick, 478 U.S. at 216.
  26.  Jump to essay-26The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.
  27.  Jump to essay-27Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, 431 U.S. at 684-85.
  28.  Jump to essay-28In the same Term the Court significantly restricted its equal protection doctrine of fundamental interests – compelling interest justification by holding that the key to discovering whether an interest or a relationship is a fundamental one is not its social significance but is whether it is explicitly or implicitly guaranteed by the Constitution. San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). That this limitation has not been honored with respect to equal protection analysis or due process analysis can be easily discerned. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).