Privacy, property, and public sex.

• Author: Ball, Carlos A.

Making a queer world ... require[s] the development of kinds of intimacy that bear no necessary relation to domestic space, to kinship, to the couple form, to property, or to the nation. (1)

The Supreme Court in Lawrence v. Texas relied on a right to sexual liberty to strike down a sodomy statute that criminalized same-sex sexual conduct. (2) In doing so, the Court limited that right in three ways: first, by making it clear that the sex in question has to be consensual; (3) second, that it must be engaged in by adults; (4) and third, that it must take place in the home (or in other similarly private places). (5) In its analysis, the Court found it relevant that the statute reached "the most private human conduct, sexual behavior, ... in the most private of places, the home." (6) The Court, in effect, equated the home with privacy and privacy with liberty. "Liberty," the Court noted, "protects the person from unwarranted government intrusions into a dwelling or other private places." (7) The defendants, the Court added, were free to "choose to enter upon [a sexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." (8) The Court made clear, however, that if they had instead engaged in "public [sexual] conduct," then the constitutional right to sexual liberty would have been inapplicable. (9)

The geographization of sexual liberty that is evident in Lawrence began forty years earlier in Griswold v. Connecticut, the first case in which the Court applied substantive due process doctrine to sexuality-related issues. (10) The Griswold Court, in analyzing the constitutionality of a law that restricted access to contraceptives, drew a connection between the right of married couples to make decisions affecting their sexual intimacy and the spatial privacy afforded by the marital bedroom. (11) Several years later, in Paris Adult Theater I v. Slaton, the Court rejected the idea that a right to privacy prevented the government from regulating obscene materials shown at a movie theater, noting that "it is unavailing to compare a theater, open to the public for a fee, with the private home...." (12) The Court added that "[t]he idea of a 'privacy' right and a place of public accommodation are, in this context, mutually exclusive." (13)

Under the Court's reasoning, then, there are certain sites, most particularly the home, which are private and therefore implicate considerations of privacy and sexual liberty. There are other sites, however, which are public and therefore do not implicate those considerations.

One way of understanding the link between the nature of certain sites and a right to privacy under the Due Process Clause is through a property-based right to exclude. Bruce Ackerman has noted that "[t]he core of both 'privacy' and 'property' involves the same abstract right: the right to exclude unwanted interference by third parties." (14) The fact that the right to exclude is at its strongest when it is exercised in the home, then, goes a long way in explaining why both property law and privacy law privilege the home in the ways they do. (15) Indeed, as Ben Barros shows in his recent article on the home as a legal concept, the law, reflecting broader cultural norms, has long treated the home as a special zone where individuals are permitted to exclude others in order to engage in conduct that is not only, as an empirical matter, usually not observable by others, but that should also, as a normative matter, be beyond the reach of governmental regulation. (16) A paradigmatic example of this latter point is Stanley v. Georgia, in which the Supreme Court held that even if the government can criminalize the possession of obscene materials outside of the home, it cannot do so when those same materials are possessed inside of it. (17)

The Court's geographization of sexual liberty has resulted in the protection of sexual conduct that takes place in the home (and, presumably, in analogous sites such as hotel rooms) while leaving unprotected sexual conduct that occurs in public sites. As this Article explores, however, the phenomenon of public sex problematizes the seemingly obvious connection between the "nature" of a site (i.e., its privateness or publicness) and the existence of cognizable privacy and liberty interests on the part of individuals who engage in sex at that site. This Article, therefore, questions whether the scope of the right to sexual liberty should be site-dependent. It argues that what should ultimately matter in determining the right's ambit is not where the sex takes place but whether the sexual actors' expectations of privacy are reasonable. Although there is undoubtedly a link between these two criteria, that link should not be so strong as to prevent sexual actors from claiming a right to sexual liberty in certain geographies outside of "dwelling[s] or other private places." (18)

The Article will proceed as follows: Part I begins with a brief discussion of the critique, advanced by some queer theorists, of the privileging of the home as a sexual site. Some queer theorists, as this Part will explain, have criticized the domestication of sexuality that accompanies that privileging, while simultaneously defending the rights of individuals to engage in public sex.

Part II explores the public sex literature to explain how sexual actors go about "privatizing" public sex sites. That literature shows that, although it seems counterintuitive, it is not necessary for a particular geography to be "private" in order for sexual actors to create privacy zones.

Part III argues that the scope of the right to sexual liberty under the Due Process Clause should not be determined solely by the nature of the site where sex takes place, in the same way that the right to privacy under the Fourth Amendment is not limited only to certain specific geographic sites such as the home. It further contends that this degeographization of the right to sexual liberty, when coupled with the substantive protection afforded to sexual conduct by the Supreme Court in Lawrence, should be enough to provide some constitutional protections to public sex under certain circumstances.

Finally, Part IV relies on the earlier discussion of public sex to problematize essentialized and rigid understandings of the distinction between so-called private and public sites. These understandings fail to account for the ways in which human practices and activities give rise to different ways of seeing and understanding particular geographies. In the end, a private/public distinction that views the two categories as mutually exclusive fails to reflect the multiplicity of meanings that accompany human practices and activities in any given site.

1. THE QUEER CRITIQUE OF DOMESTICATED SEX AND ITS CORRESPONDING DEFENSE OF PUBLIC SEX

   Not surprisingly, the Supreme Court's opinion in Lawrence has been criticized by conservative commentators who have assailed the Court for limiting the discretion of legislators to enact laws based on majoritarian understandings of sexual morality. (19) Perhaps more surprisingly, the opinion has also been the subject of considerable criticism from progressive commentators. These critics, while agreeing with the result reached by the Court, take issue with its reasoning, in particular its understanding of liberty. The principal objections to that understanding are twofold. First, some progressive commentators criticize the Court for emphasizing a relational understanding of liberty, one that protects sexual intimacy when it is part of ongoing relationships, but that ignores the liberty implications of sexual conduct that takes place outside of those relationships. (20) As the argument goes, if the Supreme Court erred in placing too much emphasis on the sexual act of sodomy at the expense of the relationships of lesbians and gay men in upholding the constitutionality of sodomy statutes in Bowers v. Hardwick, (21) the Lawrence Court, in reversing Bowers, erred too far in the other direction by focusing almost exclusively on relationships and almost not at all on sexy. (22)

   Second, some commentators have criticized the Court for applying a privatized and geographized understanding of liberty, one that prioritizes and values sexual intimacy in the privacy of the home but leaves unprotected sexual conduct that takes place elsewhere. (23) The concern here is that limiting the scope of protected sexual liberty to sex in the home--what can be thought of as the Court's "domestication" of sexual liberty--at the expense of sexual liberty exercised at other sites, inevitably leads to increased stigmatization and regulation of sex that takes place outside of the home. (24)

   For the gay rights movement, Lawrence represented the culmination of a twenty year effort to convince the courts to include gay sexual intimacy within the scope of constitutional protection afforded to other sexual conduct that takes place in the home. (25) Many queer theorists, however, are troubled by this effort to "domesticate" sexual liberty. From this perspective, the home, as a sexual site, can serve as an extension of the closet, a place where sex is permitted (or tolerated) precisely because it is hidden from view. (26) The notion that the only gay sex that is permissible is that which takes place in the privacy of the bedroom reinforces the idea that such sex is shameful and debasing. (27) When lesbians and gay men limit their sexuality to sex with their partners in the privacy of their homes, the argument goes, they replicate the traditional sexual practices and mores of heterosexuals. The bedroom, then, acts as a sanitizing site through which gay sex is cleansed and made more acceptable (i.e., made more like heterosexual sex). In contrast, when gay sex takes place outside of the privacy of the home, its publicness transforms it into queer sex. It becomes, in other words, a form of...