One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure

Abstract:     
One of the greatest practical achievements of Katz v. United States, now largely forgotten, was helping to restrict the once common practice of spying on men in toilet stalls to catch homosexuals. This may not have been accidental. The conception of privacy championed in Katz resonated strongly with pervasive concerns in the 1960s about homosexuality and its policing. The Justices, or at least some of them, may well have understood that Katz would make it harder for the police to keep toilet stalls under clandestine surveillance, and there is reason to believe they would have welcomed that result. In fact, homosexuality and its policing - especially male homosexuality and its policing - may be a suppressed subtext of modern criminal procedure more broadly. Anxieties about peepholes and undercover decoys in public lavatories, and about related investigative tactics targeted at homosexuality elsewhere, helped shape what the Court thought about the police and about the kinds of threats they posed. Traces of those anxieties may be visible in three pervasive features of the criminal procedure revolution: the preoccupation with protecting a particular kind of privacy, the view of police as psychologically antidemocratic, and the commitment to reining in police discretion with judge-made rules.

Keywords: Katz v. United States, surveillance, Fourth Amendment, homosexuality, criminal procedure, police, sexuality

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