EQUALITY IN THE COURTS: A Constitutional Right to Privacy
May 21, 2009
In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter.
A demonstrated commitment to the constitutional right to privacy stands as one of HRC's top considerations for assessing who will make a fair-minded U.S. Supreme Court Justice. But what exactly do we mean by a "constitutional right to privacy"? Privacy is an unenumerated right. That is to say, you won't find it explicitly written into the U.S. Constitution. The U.S. Supreme Court has derived the right to privacy from the 1st, 3rd, 4th, 5th, and 14th Amendments. By relying on the 9th Amendment's text stating "the enumeration of certain rights shall not be used to deny or disparage other rights retained by the people", the Court was able to determine that privacy was an implicit part of the constitution. Privacy received its first nod in 1890, when Justice Brandeis spoke of the "right to be left alone." Our modern doctrine began to seriously develop in 1965 when the U.S. Supreme Court heard Griswold v. Connecticut. The court held that a constitutional right to privacy included a married couple's right to access birth control. While frequently associated with reproductive right, privacy extends to our most personal decisions including with whom we share our lives. Only six years ago, in a 5-4 decision the U.S. Supreme Court overturned sodomy laws which criminalized intimate relationships between same-sex couples but not be opposite-sex couples. Writing for the majority of the court, Justice Kennedy explained "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment... The State cannot demean their [LGB American's] existence or control their destiny by making their private sexual conduct a crime... 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'" The next U.S. Supreme Court Justice will have many opportunities to weigh in on the balance between individuals' privacy rights and the government's compelling interests in overriding privacy. Understanding how a nominee thinks about privacy is critical knowing how he or she will interpret the constitution when deciding on issues touching our everyday lives. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC's Equality in the Courts page.