Wednesday, November 09, 2005

The Meaning of Privacy

In the comments section of my last post, I lashed out at a reader in a manner that many of you recognized as uncharacteristic of the general tone of my blog. Not only did I depart from my usual respect for all points of view, my response was, to put it bluntly, vulgar.

I've been thinking about this over the past couple of days. I stand by what I said, and the way I said it. Here's why.

Does the Constitution explicitly enshrine and define a "right to privacy"? No. But many top legal thinkers throughout American history have perceived limits on governmental power to regulate our personal lives, to the extent that a general "right to privacy" is a well-established presumption of law. Such right to privacy ranges from the prohibition against reading mail not addressed to you, restricted access to personnel and medical records, client-attorney privileges and recent acts like anti-spam legislation and the National Do Not Call Registry.

In 2003, the United States Supreme Court ruled in Lawrence v. Texas that sexual activity between consenting adults, regardless of gender, cannot be criminalized on the basis of traditional prejudice. The case arose after police in Texas responded to a false report of a domestic disturbance and entered a private residence whereupon they discovered two men engaging in a sexual act that was prohibited by law. The men were arrested.

Much of the national debate on this case centered around the idea that the sexual activity was taking place in the "privacy" of their own home, and seemingly liberal pundits talked about "getting the government out of bedrooms" and respecting "what goes on behind closed doors."

The problem is, I am not gay only when I'm having sex in my bedroom. I am still gay when I'm not having sex. I am gay when I get up and go to work in the morning, I was gay when I went to vote last night, I'm gay when I pay taxes every April, and I'm still gay when I'm sitting through mass in church. But on the basis of sexual activity, I am discriminated against by law.

In the Lawrence ruling, Justice Kennedy wrote, "The petitioners are entitled to respect for their private lives." I think everyone would agree that our private lives extend outside of the bedroom. I am open about my sexuality, but it's still a private matter. Private does not mean "secret," it means no one else has authority over it.

And so yes, I get angry when people whose civil rights are not and will never be under any threat from this kind of legislation glibly assert that there is "no right to privacy." How lovely it must be, by virtue of genetic coincidence, to have been born into the majority and to live comfortably knowing that you will never have to worry about being a victim of discrimination.


p.p. said...

I commented to the previous post before I read this one, so I'll just copy what I said there:

"True that the US Const. does not specifically mention a right to privacy. However, Supreme Court has long held that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, 4th, and 5th."

Brother Dufrene said...

I think the Supreme Court had you in mind when they made their decision on Romer v. Evans (1996).

'These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.'

It still astounds me that there actually had to be a decision like Romer to overturn a state constitutional amendment that denied anti-discrimination protection based on sexual orientation, something that has long been the right of other classifications like race, religion, and gender.

Also, Griswold v. Connecticut contains very eloquent arguments about the relationship between the Ninth and the Fourteenth Amendments and its application to marriage and privacy. The 'presumption of law' you talk about is right there for anyone to read. It very simply points out that to allude to an important right as marriage and marital privacy (and plain old privacy) as not being protected only because it isn't specifically listed in the first eight amendments is 'to ignore the Ninth Amendment and to give it no effect whatsoever.'

The Ninth Amendment exists because the authors of the Constitution and the Bill of Rights knew they could not list all of the guaranteed rights necessary for a truly free society. The Ninth exists for their successors (us) and our successors to define/expand as necessary to not only maintain a free society, but grow it beyond their wildest dreams and ours.

Esther said...

First let me say that I enjoy your blog. Your arguments are usually very well thought out. But I must take issue with this one for several reasons. This is not because I am against the right to privacy, this is because I find your conclusion extremely fallacious.

You say that it bothers you when someone who will never understand what it is like to be discriminated against takes issue with something like the right to privacy. But you cannot know if I or anyone else will ever know discrimination or has ever known it. I am often annoyed by the argument wherein the arguer says, "You can't know what I'm feeling." This argument is an ad hominem attack in the first place. In the second place, neither do you know what your opponent is feeling/thinking. Neither can you be in his or her shoes.

Next, I would like to point out that I come from a select group of people who have been discriminated against by and in every race, culture and ethnicity. It's called women. You can't even claim that because ancient Greece and Sparta condoned and encouraged homosexuality. Furthermore, being a woman is a fairly noticeable thing, while being homosexual must come out in conversation in many cases. Women are still discriminated against in the U.S., especially in the workplace. Take into account that the realm of politics attracts men who have no respect for women whatsoever and you have me, a woman who could feel the effects of discrimination very much. But to go on from there, in many other cultures women do not get the same respect as we get in the U.S. (and it is not overmuch here). Knowing that, it can be difficult to go to another culture as a woman.

There is another reason I am discriminated against. It is called food. Food is fundamental to one's rights to life, liberty and especially the pursuit of happiness. I can't just go to a restaurant and eat because the laws of food discriminate against me. If I eat something with sulfur oxides in it I will be very, very ill. And there are many things that contain that. Now, laws against spraying salad bars with sulfur oxides exist. But no laws stop food manufacturers from soaking corn in sulfur oxides before making it into refined corn products or using it in potato products or spraying it on grapes. However, I would be satisfied if the laws simply required that food manufacturers print on the label if sulfur oxides were used in the making of a certain food. The laws only require them to say anything if there is a certain percentage of the stuff in the food. And it is a percentage well above the amount that could make me sick. People like to get together and eat. I can't do that. I have to eat before I go places and decline food constantly. The people around me feel uncomfortable about this and sometimes act like I am some sort of mutant. It's really not fun.

I did not write this to whine and complain. I wrote this to show that anyone can understand discrimination because there are myriad reasons that can cause one to be discriminated against. Furthermore, I do not hide behind the word discrimination. I make my arguments clear and plain, and I have learned to ignore the fact that I might be dscriminated against because I refuse to be a victim.

Michigan-Matt said...

Andy, while you may self-identify as a gay male in all things you do -both public and private- the point I try to make to my GayLeft friends is that what they do privately with a consenting adult uniquely marks them and me as gay.

You confuse lifestyle choices with physiological functions. The latter ought to be protected by privacy rights; the former may or may not be free speech, right of association, etc.

The "I'm gay when I do anything" approach is actaully your call for acceptance by the majority --but the majority don't have to accept or condone your choice to publicly demonstrate or declare your inherent nature. They simply don't.

Should they? Sure, in a perfect, diverse, utopian, multicultural world of liberals but that isn't everyone's world... and the call for public acceptance or respect on your part, if sincere, should direct your actions to respect the bigots in our world who don't want your gayness publicly condoned.

You see, when you start to play the pity card, the victim card, the denied rights card --the very people who you are repulsed by will ask for the same "right" to direct laws to protect them from your expressions in public. It happened in the 11 states who ratified pro-marriage amendments during 2004-2005.

You may think of yourself as gay sitting in Mass, but I gotta tell you I hope God only sees you as a sinning human being in need of divine help. You may think of yourself as gay at work, but I hope your fellow employees and supervisors only see you as a productive, worthy asset in the enterprise. You may think of yourself as gay when you vote --but if you do, then you reduce your political voice and effectiveness to simple litmus test issues of a singular dimension.

You aren't alone in your perspective... most of my GayLeft friends feel the same way as you. It allows them to take a physiologic function and elevate it to a controling facet of their life... and isn't that why AIDS spread through our community... isn't that why most gays fail to be functional in society... isn't that why in our community WE define a LTR as something that just lasts more than a few months? It's elevating a single facet of our complicated nature to the controling facet in our life.

The GayLeft is fond of using simple litmus tests to determine whether or not to support a candidate... it's just as wrong as the those on the Right who think pro-life is the correct litmus test.

I think you missed an important element in your consideration of abortion from the gay perspective... the real truth is that if GayLefties don't protect abortion and adopt it as a salient issue, then the Democrat leadership and their political colleagues will leave the GayLeft on the doorstep --and that will denude the behavioral Democrats that populate the GayLeft leadership.

It isn't about privacy... it's about political allegiance and litmus tests and participation in the Democrat Party.


Andy said...

Matt, I think you misunderstood what I meant to say, but I'm confident that's the fault of my writing. I wholeheartedly agree with you. The point which I guess I didn't clearly illuminate is that I am discriminated against in my public life based upon what I do in private; it is the prejudice against "sodomy", etc., that keeps homosexuals from openly serving in the armed forces for example, or from the freedom to enjoy marriage rights. When I said, for example, that I am still gay in church, I don't mean to say that I'm sitting there thinking "Hey, I'm gay" or that God even cares about that; I merely mean to say that this artificial division arises between "us" and "them," both in terms of social construct and the law, based solely upon activities that aren't happening in the public sphere. Does that make more sense? Thank you for your very thoughtful contribution.

Esther...ditto; I'm going to need more time to digest your comment before I could respond.

Andy said...

Okay, Esther, a couple of points. First, I did not mean to come off as "discriminated-againster-than-thou," merely questioning the worthiness of a comment on the necessity of a right of privacy from someone who will not be adversely affected should such right be taken away.

You raise good points, but they are not analogous. I can sympathize with the dietary issues; a few years ago I was having severe digestive trouble, and it was suggested that perhaps I had a wheat allergy, so I tried a wheat/gluten-free diet for six weeks. Even in that short time, I recognized how difficult it is given our national diet and the way food is made today to be forced to limit yourself in such a way. Furthermore, I did have friends who made fun of me and had never heard of a "wheat allergy" and assumed what was really wrong with me was hypochondria, or at least neurosis. (Fortunately, I do not have a wheat allergy.) But that kind of mocking or discriminatory attitude is in fact Constitutionally protected. No one is out there proposing legislation to deny you equal standing before the law in this country. You are disadvantaged by circumstance, not by law.

Women most definitely have historically been the victims of discrimination, and such discrimination certainly continues to this day. However again, if I were to say, for example, "Women are inferior," that is Constitutionally protected speech. Sure, women suffer discrimination in terms of unequal pay and even general expectations in the workplace, but this is not codified into law, at least not any longer, nor do I hear of anyone pushing for it.

Now let's move over to me. This week in Texas, where I fortunately do not live, 76% of the voters went to the polls for the primary purpose of amending their constitution to ensure that someone like myself could never receive legal recognition for a relationship that, gender aside, mirrors in every way a heterosexual partnership. The principle basis for this legislation was religious prejudice.

Fine, let's go back to women. The same book of the Bible, Leviticus, which calls homosexuality an "abomination," has any number of restrictions on the behavior of women. For example, after childbirth or during their period, and for 7 days after, the Bible says women are unclean. That's absolutely every bit as Scripturally justified as calling homosexuality an abomination. But Esther: no one is pressing to have that made into law, where a woman would not be able to come to work or to touch anything public because of her unclean status. Talk about your invasion of privacy; not only would the entire world know exactly WHEN your period came, presumably they would also know when you hit menopause and stopped having your unclean times.

Or what about Paul's instruction that the husband is to be the head of the wife in all things? No one is legislating that.

Believing them to be God's will is one thing; putting them into practice in your own life is one thing; forcing your version of morality on others through legislation is another thing, and that would be a most unAmerican thing.

So while I admit that women suffer daily social discrimination (as might LC, as well, should he possess some quality such as obesity or whatever that regularly meets with social derision), your cry of discrimination falls WAY short of mine because there is so much legislation that has been passed recently to PROTECT women, and there is no movement to take it away. I am not so fortunate.

Andy said...

AND a couple of other things:

I would like to point out that I come from a select group of people who have been discriminated against by and in every race, culture and ethnicity. It's called women.

Actually I don't think that's totally accurate; though there may not have been any around for a while, there were several ancient cultures and religions which were in fact female-dominated. And the fact that during ancient Greece homosexuality was, in a somewhat bizarre, pedophiliac manner, appreciated is little comfort to me, 3,000 years later, except to point out the lie in the argument that all cultures throughout all times have discriminated against gays as a justification for continuing to do so. There were a few Native American cultures who valued gay men as holy people, just as the pagans of ancient Europe were frequently ruled by priestesses and worshipped a mother-deity.

You also mentioned that we can "hide" our sexual orientation. Well, SOME of us can, but some of us, frankly, cannot. But that's beside the point. Why should we hide? The only reason we do is because in many cases we've had to fear for our lives. Women have historically been regarded as inferior to men, but there was never a group of men or a culture that hated women so much that they tried to exterminate them; that would be a little self-defeating.

I know I said I didn't mean to be discriminated-againster-than-thou, but you know what? I'm pretty sure I am. It's not because I'm demanding or competing for your sympathy; I'm just saying how serious this conversation is for me.

Esther said...

Andy, point taken. I see how it's more serious especially in this issue. Thank you for considering my arguments. I merely wanted to say that others can feel the effects of discrimination. But I see now that I was a little off in my analysis. The whole threat of death thing would be rather terrifying to me.

I actually had a co-worker tell a whole bunch of people that I was a lesbian once because I would not go out with him. That freaked me out because it was in one of those "good ol' boys" towns where someone probably would beat up a homosexual person in the street.

Andy said...

Thanks, Esther. It's absolutely not meant to belittle personal experiences, just to point out that there is in fact a national campaign out there that serves no purpose other than to discriminate against the homosexual minority.

little-cicero said...

You lashed out at me, Andy, but I still like visiting your blog because of your well written and honest opinions, though I must say, your passion seems, in these issues, to degrade the credibility and effectiveness of your arguments.

There is a reason that I, unlike so many Christian Conservatives, stray away from the "tradition" argument in such issues as homosexuality...particularly that tradition is relative and subjective, thus to discuss it in a serious political context is degrading to one's point. If I made such arguments, chances are you'd call me a curmudgeon or an ignorant redneck who's afraid of change, but you, from the left, are doing just that. Though you agree that the right to privacy is nowhere in the Constitution or Bill of Rights, you insist that, since it is "implied" by some amendments, it should be recognized. The problem with this approach is that it is no different from a "tradition" argument. There is no concrete instruction, but there exist factors of precedence and abstract values "implying" such values. That's like me saying that since homosexuality is against our traditions, it should be illegal. As you said

"Private does not mean secret, it means no one else has authority over it," By that you are saying, the government can look into a mother's womb to see whether she is pregnant and having an abortion, but they can do nothing about it.

That the government has the right to know of the abortion turns this back into an issue of life rather than privacy. If the government can look into your home to see you committing murder, they are then able to act on that intelligence, and obligated to do so, not by tradition, but by law. Of course the law does not observe a fetus as a living being, therefore law cannot rule abortions as illegal, but they can observe abortions, therefore were they ever ruled to be equivilent to homocide, it would be the same as government looking through the window while a murder is committed inside a house. They would have grounds for a warrant, and go in to arrest the murderer.

Gay marriage is not an issue of privacy, but sodomy is. You implied earlier that I was noting the lack of a "right to privacy" in connection with sodomy laws. Sodomy laws are illogical and wrong because sex is not illegal, but abortion can be considered illegal.

little-cicero said...

To your point to Esther, Andy, I believe you are nit-picking, because in the grand scheme of history, barring a few meaningless exceptions, both gays and women have been discriminated against. That has been fixed, however, by American values put forth by the Constitution and by our legislature. Any existing sodomy laws, as you well know, are unenforcable and will not be enforced in the mean time, though as a member of the LGTB, you should concentrate on dismantling such laws, rather than fighting for gay marriage rather than civil unions. The former issue is of much greater significance, and I believe that, unlike in the case of the latter, it is your patriotic duty to fight to end such laws. The current definition of marriage may not jive with you as a homosexual, and you may well take the issue of the definition of marriage to the legislature, but it is not discrimination against homosexuals. Just because something isn't fair, it is not inherently unjust.

Andy said...

Huh? I'd respond, but, what? "Meaningless exceptions" to discrimination? What's that about? What might those be? And, um, last I checked, "unfair" and "unjust" were synonyms...but you know, I'm open to education on that point. Can you cite something for me that is unfair but just? That makes no sense.

Thank you for your criticism that the LGBT civil rights movement has its priorities misplaced. I'll bring that up at the next staff meeting.

Oh, and about the unenforceability of sodomy laws? Last week the Virginia Court of Appeals upheld the post-Lawrence v. Texas sentence of a man who was convicted of "solicitation of sodomy." Hard for me, exactly, to see how a court can uphold a conviction for something which the Supreme Court says is not a crime, but...there you go. Maybe that's what y'all mean by "activist judges."

little-cicero said...

Yes, meaningless exceptions. That the Amazons were women who dominated men does not affect the constant discrimination against women over history. The same goes for gay people, they have been abused, is that inaccurate?

Solicitation of sodomy is very different from sodomy itself legally. If I was to tell a woman "Hello there, how would you like to have sex with me?" in a public restroom, there might well be charges against me. Solicitation is an offense in any case, but what should have been filed there is sexual harassment as would be filed between a man and a woman. Sodomy laws should be stopped, that's what I'm saying, so why are you implying that I'm an ignorant redneck by saying "y'all" in your reply?

The difference between justice and fairness is a very thought provoking one. Whereas justice is the objective right way to deal with something, fairness is the subjective right. It may not be fair that a man has to go to prison because he committed a crime after looking at the factors which led him to a life of crime, but objectively, we say "He committed the crime, so he must do the time" If we based the nation on fairness, it would be an anarchy!

My "criticism" of the LGBT was actually a critique. Your organization plays an important role in America. Whereas the current definition of marriage is not unconstitutional, sodomy laws are not only unconstitutional, but not in accordance with American Values. Instead of placing your priorities in the cause of normalizing homosexuality, why not first concentrate on decriminalizing it?

Jeff said...

I actually don't think the Virginia case was necessarily wrongly decided. The defendant wasn't looking to bring someone back to his home for oral sex - he wanted to have it in the bathroom stall. Public sex can be illegal without it necessarily being a case of anti-gay discrimination. I didn't read the case closely enough to see if the sentencing is different for homosexual activity as opposed to heterosexual activity, though.

little-cicero said...

Intellectual honesty, that's honorable! Especially since I didn't research the case myself! Honorable, yes, quite so!