{"id":30918,"date":"2022-07-27T14:03:54","date_gmt":"2022-07-27T19:03:54","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment5\/annotation09.html"},"modified":"2022-07-27T14:03:54","modified_gmt":"2022-07-27T19:03:54","slug":"annotation09","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment5\/annotation09.html","title":{"rendered":"Sexual Privacy as a Part of Due Process"},"content":{"rendered":"\n
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Sexual Privacy as a Part of Due Process<\/h1>\n
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\n By FindLaw Staff<\/a> | Legally reviewed by Laura Temme, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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Privacy rights are always evolving, especially when it comes to the right to privacy under the Fifth Amendment. Since the due process clause doesn\u2019t explicitly address privacy rights, it\u2019s been up to the courts to decide what aspects of someone\u2019s personal life are protected by the Constitution.<\/p>\n\n <\/div>\n\n

In 1969, the Supreme Court began addressing issues of privacy relating to private sexual activity. In 2022, Supreme Court Justice Clarence Thomas made comments in his concurrence overturning Roe v. Wade<\/a> that seem to indicate privacy rights other than abortion may also be at risk. <\/p>\r\n

What the Fifth Amendment Says<\/h2>\r\n

\u201cNo person shall\u2026be deprived of life, liberty, or property, without due process of law;\u201d<\/i><\/p>\r\n

What It Means<\/h2>\r\n

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation<\/i><\/b><\/p>\r\n

The Court has also briefly considered yet another aspect of privacy \u2014 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<\/a><\/i>,1<\/sup> the Court held that the government may not make the 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<\/sup> Nonetheless, the Court based its decision upon a person\u2019s 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\u2019s privacy,3<\/sup> 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<\/sup><\/p>\r\n

The potential significance of Stanley<\/i> 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\u2019s home with little apparent effect on others. Stanley<\/i>, however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home.5<\/sup> In Paris Adult Theatre I v. Slaton<\/a><\/i>,6<\/sup> which upheld the government\u2019s 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 \u2018free will\u2019 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\u2019s 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\u2014those in politics, religion, and expression of ideas\u2014are 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<\/sup><\/p>\r\n

Furthermore, continued the Court in Paris Adult Theatre I<\/i>, our 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 \u2018wrong\u2019 or \u2018sinful.\u2019 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\u2019 \u2018right to maintain a decent society.\u20198<\/sup><\/p>\r\n

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<\/i>. The limited impact of Stanley<\/i> was reemphasized in Bowers v. Hardwick<\/a><\/i>.9<\/sup> The Court in Bowers<\/i>, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley<\/i> did not implicitly create protection for voluntary sexual conduct [in the home] between consenting adults.10<\/sup> Instead, the Court found Stanley<\/i> firmly grounded in the First Amendment,11<\/sup> 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<\/i> has since been overruled by Lawrence v. Texas<\/a><\/i>12<\/sup> 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.<\/p>\r\n

So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe<\/i> 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 \u2018fundamental\u2019 or \u2018implicit in the concept of ordered liberty,\u2019 Palko v. Connecticut, 302 U.S. 319, 325 (1937)<\/a><\/i>, 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)<\/a><\/i>; procreation, Skinner v. Oklahoma, 316 U.S. 535, 541\u201342 (1942)<\/a><\/i>; contraception, Eisenstadt v. Baird, 405 U.S. at 453\u201354<\/a><\/i>; id.<\/i> at 460, 463\u201365 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944)<\/a><\/i>; and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)<\/a><\/i>, Meyer v. Nebraska<\/a><\/i>, supra<\/i>.<\/a><\/sup>13<\/p>\r\n

Despite the limiting language of Roe<\/i>, 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<\/a><\/i>,14<\/sup> 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<\/sup> The Court significantly extended the Griswold-Baird<\/i> 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.<\/p>\r\n

For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick<\/a><\/i>,16<\/sup> 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<\/sup> 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<\/sup> 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<\/sup> 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<\/sup> Interestingly, Justice Blackmun, in dissent, was most critical of the Court\u2019s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited.21<\/sup><\/p>\r\n

Yet, Lawrence v. Texas<\/a><\/i>,22<\/sup> by overruling Bowers<\/i>, 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<\/i>, 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<\/sup><\/p>\r\n

Although it quarreled with the Court’s finding in Bowers v. Hardwick <\/a><\/i>that the proscription against homosexual behavior had ancient roots, Lawrence<\/i> 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<\/sup> it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.25<\/sup> Thus, the parameters for regulation of sexual conduct remain unclear.<\/p>\r\n

For instance, the extent to which the government may regulate the sexual activities of minors has not been established.26<\/sup> Analysis of this question is hampered, however, because the Court has still not explained what about the particular facets of human relationships\u2014marriage, family, procreation\u2014gives rise to protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court\u2019s observation in Roe v. Wade<\/a><\/i> that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy, occasioning justification by a compelling interest,27<\/sup> provides little elucidation.28<\/sup><\/p>\r\n

Despite the Court’s decision in Lawrence<\/i>, 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<\/i>. 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.<\/p>\r\n

More on Substantive Due Process<\/b><\/h3>\r\n