Beyond Romer and Lawrence: the right to privacy comes out of the closet.

• Author: Marcus, Nancy C.

Great concepts like ... "liberty" were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged. (1)

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (2)

On Independence Day weekend, 2005, Justice Sandra Day O'Connor took much of the legal world by surprise by announcing her retirement from the Supreme Court. (3) Two months later, Chief Justice Rehnquist's death left another vacancy on the Supreme Court. O'Connor's presumed replacement, John Roberts, was immediately named as Rehnquist's replacement and the new Chief Justice of the United States Supreme Court. With the dramatic changes on its bench, the Supreme Court is at a historic crossroads, warranting a retrospective examination of the paths the Court has taken previous to and during the Rehnquist Court era, and the bridges it may cross in the time to come. In particular, this Article examines the significant developments in the Court's privacy rights jurisprudence with a look ahead toward the future of privacy rights and liberty interests under a new Supreme Court.

As the Rehnquist era comes to a close, it promises to leave a legacy which includes surprisingly strong protections for liberty and equality. The Rehnquist Court has issued a series of forceful opinions affirming substantial Fourteenth Amendment protections for individual autonomy in recent years, culminating with the gay rights decisions Romer v. Evans (4) and Lawrence v. Texas. (5)

The Court's recognition of the right to self-determination in Romer and Lawrence is founded upon principles of both privacy rights (6) and equal liberty in the public realm. (7) In striking down sodomy bans in Lawrence, the Court found that such bans violate a "due process right to demand respect for conduct protected by the substantive guarantee of liberty," (8) which precludes state-imposed stigma and restrictions on personal relationships "absent injury to a person or abuse of an institution the law protects." (9) In so holding, the Court indicated that the Fourteenth Amendment's privacy and liberty protections include not only a negative right to be let alone, but also an affirmative right to equal respect and autonomy in intimate relationships that transcends the spatial spheres of the home. (10) Such public dimensions of Fourteenth Amendment protections played a similar role in the Court's previous Romer v. Evans decision. In Romer, the Court applied a heightened form of rational basis review to strike down a state constitutional amendment which singled out gay and bisexual citizens for the denial of civil rights protections. (11) The Court in Romer concluded that equal protection guarantees include both freedom from government discrimination and the affirmative right to equal access to state legal protections. (12) Representing the culmination of a series of "rational basis plus" cases linked by a common element of government animus, (13) the Romer decision focused on the danger that government-endorsed stigma poses to the citizenship rights of those individuals being subjected to discrimination. (14)

This Article claims that, through Romer and Lawrence, 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 public as well as private contexts, demanding freedom in and beyond the spatial dimensions of the home. This transformation of privacy into a more potent liberty protection has been enabled by the collective strength that Romer and Lawrence lend to individual rights protections through their parallel discussions of animus, stigma, respect, and dignity. Just as Romer prohibits state-imposed animus or stigma toward gays and bisexuals, Lawrence establishes the right of gay and bisexual people to be affirmatively accorded respect and dignity. The two cases represent an evolution of the right to privacy in one's intimate life choices from a negative right to be left alone to a more comprehensive affirmative liberty interest in self-determination, autonomy, and respect, which implicates the "active liberty" and "equal citizenship" doctrines endorsed by some members of the Court.

In addition to the significant substantive evolution of liberty interest protections resulting from Romer and Lawrence, this Article further claims that Romer and Lawrence represent a historic evolution of Fourteenth Amendment jurisprudence on a procedural level. Viewed together, the cases have dramatically expanded the focus and strengthened the standards of Fourteenth Amendment procedural review. While Romer adds teeth to rational basis equal protection analysis, Lawrence reciprocally strengthens the liberty guarantees of substantive due process. Together, the two cases strengthen the overall protections of the Fourteenth Amendment by focusing on the substantive rights at stake rather than allowing strict nomenclatures or narrow classifications to determine the results of cases preemptively. Revealing a critical evolution in the application of tier review standards in Fourteenth Amendment cases, the Court in Romer and Lawrence rejected past rigid dichotomous prerequisites in the application of strict scrutiny, instead following a more searching scrutiny for cases involving suspect government motives and sweeping invasions of personal autonomy and rights.

The Court's increased protection of the fundamental liberty interests inherent in intimate life choices may seem enigmatic. After all, the Rehnquist Court is also known for its decisions striking down civil rights statutory protections; (15) upholding the right of organizations to exclude gays; (16) and substantially limiting (if not overruling) the holding of Roe v. Wade. (17) In addition, the "right to privacy" has been a controversial doctrine throughout the Rehnquist era. Scholars and jurists have disagreed about the origins and limitations of such a right, (18) with Roe v. Wade frequently a target of privacy rights criticisms. (19) The Court's treatment of privacy rights remains heavily in the spotlight as the Rehnquist era comes to a close, with Lawrence joining Roe as the target of criticism by those who oppose expanding protections for privacy rights and liberty interests. (20) This Article makes the case, however, that the seeds of such a broad liberty interest, encompassing both negative privacy guarantees and affirmative citizenship rights, were planted long ago. (21) The growing branches of personal liberty protections, this Article contends, are stronger than ever after Romer and Lawrence.

This Article begins by tracing the historic roots of the right to privacy. Section I describes the original intent of the Constitution's drafters to establish an evolving constitution with inalienable and unenumerated individual rights. In addition to describing the general origins of such rights, this section explains how the Court's recognition of fundamental rights has come to incorporate the dual dimensions of the right to privacy as both a right to be let alone and as an affirmative liberty interest in autonomy. Section II connects the evolution of privacy rights to similarly evolving Fourteenth Amendment standards of review, noting the contributions of Romer and Lawrence to the procedural aspects of Supreme Court jurisprudence. Exploring the equal citizenship and active liberty doctrines implicit in Romer and Lawrence, this section describes how the two cases strengthen the substantive meaning of privacy and liberty rights, contrary to the more constrained reading of Fourteenth Amendment substantive rights protections attributed to cases such as Washington v. Glucksberg. (22) Finally, Section III explores the potential application of Romer and Lawrence to a possible future United States Supreme Court same-sex marriage case. This section examines lower court opinions in same-sex marriage decisions that have either followed or distinguished Romer and Lawrence. This section explores in detail the roles of tradition, government interests, stigma, and political participation in same-sex marriage cases, explaining how each of these overlapping issues relates back to the larger constitutional themes of equal citizenship and active liberty. With even the opponents of same-sex marriage conceding that the Court may have established sufficient precedent for a future affirmation of same-sex marriage rights, (23) this Article similarly suggests that after Romer and Lawrence, the recognition of same-sex marriage may be inevitable. At the very least, it concludes that the more general liberty protections affirmed in Romer and Lawrence are stronger than ever, even with the pending changes on the Supreme Court bench.

1. THE AMERICAN TRADITION OF UNENUMERATED RIGHTS AND THE PROTECTION OF PRIVACY

   The right to privacy is rooted in the American tradition of honoring inherent individual rights. Such rights are not always enumerated in the text of the Constitution, and for good reason. The original authors of the Constitution recognized that a constitution cannot list in complete detail every reserved individual right and still maintain its structure as a broad framework for a limited government. Further, the Constitution's drafters established the importance of a living, evolving constitution, since no generation of lawmakers can be omniscient and predict all the...