The Right Coast

November 06, 2005
Right to sexual privacy finally curtailed
By Tom Smith

Skeptics about Roe v. Wade have long railed about the invention of a right of sexual privacy by the US Supreme Court in that controversial case. Where was that controversial right supposed to come from? Sex, let alone abortion, is mentioned nowhere in the Constitution. Yet find such a right the Court did. Legal scholars wondered, as well they might, where such a right, once invented, would find its limit. Does the right of sexual privacy imply a right to gay marriage? To any form of sexual conduct, no matter how alarming?

Now, in a bold decision positively reeking of integrity, Judge Stephen Reinhardt has laid down the law, finally proclaiming that this murky right goes so far, but no further. Strict constructionists everywhere may breathe a sigh of relief. How ironic, and indeed inspirational, it is that this paradoxical opinion comes from a judge some brand as among the most liberal and activist on the ever amusing Ninth Circuit.

The case arose when irate parents objected to the Palmdale School District's giving their children, including first graders, a questionaire including sexually explicit questions, along the lines of whether the children played with their "private parts", had sexual feelings, and so on. Parents asserted a constitutional right not to have the school introduce young children, many of whom do not yet know where babies come from, to concepts such as masturbation, sexual abuse, and sex generally. However foolish the notion may be that parents should want to shield first graders from intrusive sexual investigation, one can understand how, in a world of expansive conceptions of sexual privacy, they could have imagined they had such a ridiculous privilege. But no more. They have been educated, as harshly as their children, by the Ninth Circuit. Now, thanks to the careful legal reasoning of the Ninth Circuit panel, we can ponder such nice questions as, how it is, under Griswold, that the state may not invade the privacy of the marital bedroom by telling couples not to use condoms, but, I assume by extension of the logic in Palmdale, that the state could administer to state employees, say, a questionaire inquiring whether the respondant prefers to be on top or on bottom. There is privacy, and then, there is privacy. This is a good thing to get learned. Or indeed, how it would be that a husband may not be required to be notified of his wife's abortion, though I presume under Palmdale that the state is so entitled, or at least entitled to ask. If ever there was a case begging for law review articles, this is one, and for that law professors should be grateful.

This is really an important lesson for everyone interested in constitutional law. We frequently jump to the conclusion that words like "privacy" mean what they mean in ordinary contexts. But this is not so. "Privacy" does not mean such things as a family exercising control over whether state employees ask their six year olds about their private parts and whether they ever touch them. (After all, what possible motive could a teacher have for posing such a question, other than a benign one? What possible dangers could such questions pose?) It means something much more complicated than that. Thus, the right to privacy includes the right to choose to terminate the life-like process of an otherwise about-to-be-born non-person person-like post-fetal entity, but not to control the early education of such entity in its early stages of personhood, once that small person or near-person has been put into the hands of the state educational system. That is, to strip the point of its many deeply intriguing nuances, you may kill the thing, but not control its education; the former is privacy, the latter is not.

It is through distinctions such as these that the law establishes the contours of once newly minted rights, and works itself, in a sense, "pure," or at least makes itself useful. For that, our gratitude should be at least as great as our confusion.