Beyond Romer and Lawrence: The Right to Privacy Comes Out of the Closet
82 Pages Posted: 22 Aug 2006
This article examines significant developments in the Supreme Court's privacy rights jurisprudence through the Rehnquist era with a look ahead toward the future of privacy and liberty protections under a new Court. The article explores several problems faced by privacy rights proponents, ranging from opposition to unenumerated constitutional rights generally to more recent tradition-based challenges to privacy protections. Tracing the historic roots of privacy rights, the article reveals the original intent of the Constitution's drafters to establish an evolving constitution with inalienable unenumerated individual rights, including a right to privacy which encompasses an affirmative liberty interest in autonomy. The article describes how recent cases such as Romer v. Evans and Lawrence v. Texas have contributed to the evolution of privacy rights by strengthening procedural and substantive protections for privacy and liberty and embracing principles of equal citizenship and active liberty, contrary to a constrained reading of Fourteenth Amendment protections attributed to cases such as Washington v. Glucksberg. Finally, the article explores potential applications of Romer and Lawrence to a future Supreme Court same-sex marriage case. The article concludes that the right to privacy has come out of the closet as a powerful liberty interest embracing guarantees of autonomy and respect for intimate life choices in both public and private contexts, including stronger protections of equal marital rights for same-sex couples.
Keywords: Equal protection, due process, privacy, liberty, LGBT, gay rights, same-sex marriage, right to privacy, Romer, Lawrence, Glucksberg, originalism, unenumerated rights, Ninth Amendment, evolving constitution, living constitution, constitution, active liberty, Fourteenth Amendment, abortion
JEL Classification: K1, K10, K30
Suggested Citation: Suggested Citation