Two questions about privacy persistently concern me: first, the extent to which privacy and sexuality are linked or affect each other; second, the extent to which privacy might have conservative cultural implications, particularly surrounding gender and sexuality.

i.

Jed Rubenfeld points out that privacy law is uncannily concerned with sexuality.[1] He critiques Bowers v. Hardwick and the whole line of privacy cases for their misguided failure to recognize privacy not as a right to be free of proscription (of abortion, of “homosexual sodomy”), but rather as a right to be free of the forced imposition of a certain way of life (having and raising a child in Roe, living a heterosexual-type lifestyle in Bowers).[2] Kendall Thomas faults Rubenfeld for being insufficiently attentive to how sodomy laws work to legitimize political violence, both by state and by private actors.[3] Moreover, Thomas expresses suspicion about the concept of privacy itself:

for gay men and lesbians, privacy has always represented privation. … the rhetoric of privacy has historically functioned to perpetuate the oppressive politics of the ‘closet’: privacy is the ideological substrate of the very secrecy that has forced gay men and lesbians to remain hidden and underground, and thus rendered them vulnerable to private homophobic violence.[4]

The “privacy principle” is thus something that in fact obscures material violence by making it seem as if once the state is “out” of one’s hair justice has been done. Besides, Bowers itself stated the idea that the Court could step back from “a judgment on whether laws against sodomy between … homosexuals … are wise or desirable,” purporting that the law wasn’t involved in normatively constructing sexuality and wouldn’t be made to.[5]

I don’t find all of this irrelevant just because Bowers was overruled. Lawrence v. Texas, the case that overruled Bowers, is beset by an assumption that the “sodomy” at its center was one performed by a couple inside their home. As Katherine Franke points out, Justice Kennedy’s opinion repeatedly refers to the liberty right as the freedom to perform intimate conduct in private.[6] Not only that, there is the strange language of “a personal bond that is more enduring.”[7] The image of gay men, Franke continues, has shifted from horror to domestication.[8]

The problem with this shift, I think, is that it is as if to be acceptable, or constitutionally palatable, gay sex must be territorialized within a home, either literally or figuratively. (Never mind that Lawrence explicitly states that it’s not sanctioning gay marriage.)[9] Privacy advocates find the home to be the exemplar of the inviolable.[10] The logic goes, if you’re in your own house, good god you should be allowed to do what you want. But for an antihomophobic analysis of these cases, it’s not that simple. Because what happened to Mr. Hardwick, as Thomas crucially notes, was not bounded in the four walls of his home at the moment when the police officer busted in on him having sex—it began weeks earlier.[11] And the injustice done to him wasn’t that he should have been entitled to his privacy. What Mr. Lawrence and Mr. Garner were doing was, for all we know, more comparable to sex in a public bathroom stall than a standard, “normal” “enduring personal bond” in a happy home.[12] What they were doing might have been crucial to their making what Judith Butler has called “livable lives” for themselves.[13] Privacy analysis, at least in the domesticated brand, misses these points, and obscures them.

I would like (I’m not trying to be hostile) a defense of privacy rhetoric that responds to its seeming nostalgia (i.e., the good old days) and fixation on the home.

ii.

Other conceptualizations of privacy, such as “control over personal information,” which wouldn’t be completely bounded to the home, do not solve this issue, either.[14] I have two examples I’ve thought about, both concerning “outing,” which is an issue often couched in the terms of privacy.

Michelangelo Signorile, for one, advocates “outing on all levels”![15] What he means is that “[e]very gay person who knows the truth about closeted antigay politicians has a responsibility to speak up.”[16] For example, Senator Larry “Wide Stance” Craig, who was caught literally with his pants down in an airport bathroom, and Roy Ashburn, a California state senator who voted for Prop 8, who was forced to come out when he was arrested for drunk driving coming back from a gay bar.[17] For Signorile and many gay activists, these people don’t “deserve” privacy—in fact they deserve ridicule for being hurt by the very policies they’ve hurt others with. With the blogosphere pulsing, all gay antigay politicians (and some non-antigay policies who are closeted for whatever reason) have something to fear.

In the recent sad case of Tyler Clementi at Rutgers, invasion of privacy was the first thing to be raised in the news.[18] Mr. Ravi, Clementi’s roommate, wrote online, “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes, it’s happening again.”[19] He “tweeted”: “I saw him making out with a dude. Yay.”[20] A few days later, Clementi posted on Facebook, “Jumping off the gw bridge sorry.”[21]

Most of us, I think, are not sympathetic to Craig or Ashburn, and are sympathetic to Clementi. But I remain concerned. What happened in all of these cases wasn’t just that someone’s privacy was violated; it was that someone was shamed for his sexual dealings. It is the significance and spectacularized nature of homosexuality in American society that made these stories newsworthy. Cyberspace is one area that participates—and maybe inevitably participates—in this process of heightening signification: see “Urban Dictionary: Wide Stance”; see “Gawker: How a College Kid Livestreamed His Roommate’s Gay Sexual Encounter, Possibly Causing a Suicide (Updated).”[22][23]

I am unfortunately left with a feeling that the seemingly sanguine support for the privacy of lesbians and gay men stems, at least in part, from a wish to avoid the issues I’ve tried to raise here.

Word count: 995

[1] Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 744 (1989).

[2] Id. at 739-40.

[3] Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431, 1508 (1992).

[4] Id. at 1510 (emphasis added).

[5] Bowers v. Hardwick, 478 U.S. 186, 190 (1986).

[6] See Katherine Franke, Commentary, The Domesticated Liberty of Lawrence v. Texas, 104 Colum. L. Rev. 1402-04 (2004).

[7] Lawrence v. Texas, 539 U.S. 558, 567 (2003).

[8] See Franke, supra note 6, at 1408.

[9] Lawrence, at 579.

[10] See Kyllo v. United States, 533 U.S. 27, 33 (2001) (“While we upheld enhanced aerial photography … we noted that we found ‘it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened’ ”) (quoting Dow Chemical Co. v. United States, 476 U.S. 227, 237 n.4 (1986)).

[11] Thomas, supra note 3, at 1437-40.

[12] See Franke, supra note 6, at 1408.

[13] See Judith Butler, Undoing Gender (2004).

[14] This wording is from Daniel Solove, Conceptualizing Privacy, 90 Cal. L. Rev. 1087, 1087 (2002).

[15] Michelangelo Signorile, A Case for Outing on All Levels, The Advocate, June-July 2010, http://www.advocate.com/Print_Issue/Features/A_Case_for_Outing_on_All_Levels.

[16] Id.

[17] Id.

[18] Invasion of Privacy Charges After Death of Tyler Clementi, N.Y. Times, Sept. 29, 2010, available at http://www.nytimes.com/2010/09/30/nyregion/30suicide.html?scp=3&sq=rutgers%20suicide&st=cse.

[19] Id.

[20] Id.

[21] Id.

[22] Urban Dictionary: Wide Stance, available at http://www.urbandictionary.com/define.php?term=Wide%20Stance.

[23] Gawker: How a College Kid Livestreamed His Roommate’s Gay Sexual Encounter, Possibly Causing a Suicide (Updated), available at http://gawker.com/5651050/how-a-college-kid-livestreamed-his-roommate-having-gay-sex-possibly-causing-a-suicide.

We have "privacy" cases for the same reason we have "gender discrimination" cases: because it used to be nearly impossible for the Supreme Court Justices to use the word "sex." We didn't have a privacy revolution beginning with the availability of the Pill in the early 1960s: we had a sexual revolution. The consequences were immensely ramified and complex, involving, as your essay shows, not only what people do, where they do it, and how they talk about it, but also how they talk and think about many other things, including politics and literary theory. The almost entirely male, white, Anglo-Saxon, Protestant judges who decided the early cases in which some few of the consequences of the sexual revolution reached the Supreme Court used both language and conceptions that distanced them from the nature of the real social changes involved. In law, language and conception becomes rule, and having become rule it channels power, which because power creates inequality and injustice means that the concepts and language of the law result in eddies of inequality and injustice within the stream of power that is supposed to be channeled by the rules into the creation of justice.

So here. You're right, it seems to me (largely because those you depend upon for the insight are right), that the replacement of right to sexual behavior by right of privacy creates a prison for sexuality within which safety is offered at the expense of actual liberation. This is one of the costs of treating the sexual revolution as an episode in the history of privacy. But any candor more candid would not only have made the judges uncomfortable, it would have made the counterrevolution more furious.

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