ROBERTS v. UNITED STATES JAYCEES and Privacy Rights

Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.

I recently continued my fascination with privacy rulings by commenting on Griswold, the excuse being recent retrospective in honor of its upcoming fifty years anniversary.  I have a new one.

It is unfortunate Griswold and Roe did not do more to discuss the basis of the right to privacy, even though its authors themselves spent time in concurring and dissenting opinions doing so (Poe v. Ullman, Doe v. Bolton, and Bowers v. Hardwick would be examples here). As to the last, it is also pretty unjust that Lawrence v. Texas doesn't honor Justice Blackmun, even as it quotes Stevens (yes, he was the one still on the Court). That opinion even uses the two-prong (space and choice) privacy approach as Blackmun did in that seminal dissent without even a h/t.  There is a preference to base things on "liberty," but the excerpt above underlines that such a freestanding principle has specific prongs too. 

There are some cases -- this is a value of Planned Parenthood v. Casey, even if we are upset about how the "undue burden" test opens the way to too much regulation -- that do provide some meat to privacy rights and the like.  Lawrence does this in a fashion.  Roberts v. U.S. Jaycees is as well. The case involves a law requiring equal treatment for women in regard to that business organization, which was not seen as a violation of their right to association. The opinion uses this to note there are two forms of constitutional right to association -- intimate and expressive.* 

Various types of association are easily seen as an expression of 1A values, an easy "penumbra" right. Others such as families would have some of that probably but a general liberal interest is involved. As the opinion summarizes: "certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State."  This sort of association are generally intimate, small, in nature, one way the Jaycees was differentiated. There also was the compelling state interest of sex equality, which is a factor that is raised in current controversies too. For instance, the right not to sell cakes in public bakeries to certain people.

This is what Justice Douglas was getting at in his dissent in Poe v. Ullman, which might have been somewhat rambling but more expansive than Griswold, when he explained that a certain amount of privacy was necessary for a free society.  Take this quotation:

One of the earmarks of the totalitarian understanding of society is that it seeks to make all subcommunities -- family, school, business, press, church -- completely subject to control by the State. The State then is not one vital institution among others: a policeman, a referee, and a source of initiative for the common good. Instead, it seeks to be coextensive with family and school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is expressly rejected as out of accord with the democratic understanding of social good, and with the actual makeup of the human community.

IOW, there are certain buffers to the state, both associations and general freedom of action, that must be protected. Many times, the intimate associations protected were related to family life, leading some (e.g., Bowers v. Hardwick) to provide a limited view. But, aside from the various possible definitions of "family" and the right in effect not to have one (possible explanation for giving a right to contraceptives to the unmarried, e.g.), the overall principle at stake is more expansive.  This also was the overall spirit appealed to by the "they are trying to force us to eat broccoli" brigade. It is not just a concern of enumerated powers, but an appeal to liberty overall. The knee-jerk sentiment rests on something,** it just has no sense of perceptive both on just what is being done (no one is being forced to eat something) and the "necessary and proper" nature of the regulation (an economic act, with a readily available tax alternative) in question. 

Lawrence v. Texas noted: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Jaycees provides some basis to not see that case about an individual act alone, but an expression of intimate association.  On some level, it might seem a bit silly to treat a sex act in that fashion, especially given the transitory nature of some of them.  But, sex is but one sort of act that overall is very well but an expression of "personal bonds" in various ways.  We are not usually talking about masturbation here after all (Stanley v. Ohio, involving viewing pornography in the home is a better case there).

It is helpful to keep in mind the underlining basis of various liberties, including the autonomy provided in intimate associations. People like Cass Sunstein sometimes support minimalist rulings that provide a narrow basis of decision, since broad ones are liable to be more controversial and less readily accepted. And, cases often are a matter of applying precedent, not deep examinations of first principles.  Still, especially when said principles on some level remain controversial (e.g., how much the Constitution protects it against legislative action), it is useful to do examine underlining principles as well.   

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* "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed."

** In Justice Clark's influential article on abortion, he notes that personal choices over day-to-day habits [corrected -- not "diet" specifically] is a part of privacy rights.  In a later short article, he both supported the legalization of marijuana and in passing cited Griswold as suggesting it is constitutionally protected.  

Alaska applied its own specific state constitutional privacy protection to include "the ingestion of food, beverages, or other substance," including marijuana. Other states have such constitutional protections explicitly or implicitly, but didn't go as far as legalizing that substance. Some did argue private religious choice includes the ingestion of peyote. In the Ravin v. State case, the Alaska Supreme Court did cite state courts that held things like adults biking without a helmet was protected by a right of privacy.