Are Sexual Rights Privacy Rights, Natural Rights, Neither, or Both?

A Review of Sexual Rights in America


Friday, Oct. 24, 2003

What rights, exactly, does the Constitution protect? The Bill of Rights lays out a handful: the right to speak and write freely, to keep soldiers out of your attic, at least during peacetime, and the right to bear arms, at least if you've thrown in your lot with a well regulated militia (and possibly even if you haven't). There are other enumerated rights, but "the right to choose how, when, and with whom we have sex," as the authors of Sexual Rights in America put it, is not among them.

This year, in Lawrence v. Texas, the Supreme Court struck down Texas's anti-sodomy statute and overruled Bowers v. Hardwick. That decision - which occurred after the authors completed Sexual Rights for publication - was one of the developments the book most passionately urged should occur, and that reason it is partly prophetic.

The Lawrence decision has only fanned the debate over the scope of sexual rights, however, so the authors' call for a stronger constitutional foundation for sexual freedom remains relevant.

Problems with a Right to Privacy Protected by the Due Process Clause

The Court has, of course, recognized some variants on the right to privacy - the right to an abortion, for example, in Roe v. Wade. According to the authors of Sexual Rights in America, however, it has not gone far enough. Paul Abramson, a professor of psychology at UCLA has collaborated on several works with Steven D. Pinkerton, an associate professor of psychiatry and behavioral medicine at the Medical College of Wisconsin, including With Pleasure: Thoughts on the Natures of Human Sexuality. Mark Huppin, the third coauthor, is a graduate student in psychology at UCLA.

"What is needed," they contend, "is a clean break from privacy jurisprudence coupled with a recognition of the fundamental right to engage in consensual act of sexual intimacy, whether reproductive or nonreproductive, heterosexual or homosexual, married or unmarried."

The authors make a strong case that the Court's current privacy jurisprudence is weak at best. In Griswold v. Connecticut, Justice Douglas famously located the right to privacy in the "penumbras" of the Bill of Rights; finding that it "emanates from the totality of the constitutional scheme under which we live."

Penumbras and emanations have become a shorthand legal joke, proof that even where the ends justifies the means, the means must be something more than laughable. The problem is that the Due Process Clause, on which the right of privacy is so precariously perched, speaks only of process, not substantive rights. The Due Process Clause was simply not designed to protect much of what is most important to contemporary Americans.

Why the Ninth Amendment, Too, Is a Shaky Basis for Sexual Rights

The authors would ground sexual rights not on a right to privacy, but rather on the Ninth Amendment. The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The authors insist that it protects rights rooted in natural law, one of which is the pursuit of happiness.

Unfortunately, they are largely wrong. As Justice Douglas plainly observed in Roe v Wade, "The Ninth Amendment obviously does not create federally enforceable rights." Even if the Court were to invoke the Ninth Amendment to protect rights, however, it would need a better framework than the shifting, opaque precepts of natural law.

Although the Declaration of Independence cites "the pursuit of happiness" as an inalienable right, Jefferson's tract is a political brief rather than a precedent for future statutes. The authors then conflate the pursuit of happiness with utilitarianism, citing James Wilson, a delegate to the Constitutional Convention: "[t]he happiness of society is the first law of every government."

The greatest happiness for the greatest number will often conflict with an individual right to happiness, however, and the Bill of Rights can be understood as a check against the tyranny of the majority. Suppressing deeply unpopular speech may bring great happiness to great numbers of citizens, for example, but the First Amendment forbids it.

The authors suggest that the roots of natural law lie in nature itself. In this view, heterosexual marital relations deserve no special status because "marriage is not a natural state"; it does not exist in nature. And since "masturbation has been observed in all primates," masturbation must deserve the broadest protections. The fact that an act exists in nature hardly qualifies it for protection in a civil society, however: sex between praying mantises always ends badly, and lions get away with hell on the savannah. Interdisciplinary references to mathematical set theory and genetics are hardly more convincing.

Natural law may be appropriate legal precedent in a society in which nearly all citizens have a shared history, culture and religion, but America is not such a place. As Judge Posner observed, "in a morally diverse society the concept of 'natural law' has no fixed content." For centuries sodomy was termed the crime against nature. Indeed, in many churches throughout America, it is called that today. Natural law, despite its divine aspirations, tends toward the parochial.

The Author's New Test for Which Sexual Behavior Should Be Protected

The authors' constitutional framework is not compelling, but their innovative test for sexual rights is. The test could provide a compelling benchmark to judge sexual rights issues in the future.

They propose classing all sexual behavior into "sanctioned" (consensual) and "unsanctioned" (nonconsensual) activities. The authors compare the classification to the Supreme Court's distinction between "indecent" and "obscene" speech. Indecent speech cannot be prohibited (unless directed to minors); obscene speech can be. Similarly, sanctioned behavior could not be prohibited -- at least, absent a "compelling government interest"-- while unsanctioned behavior would be prohibited.

The advantage of this approach is that it is fact based - Was everyone involved a consenting adult? - rather than predicated upon moral or normative judgments. One result of applying this approach would be to legalize consensual sodomy - as Lawrence did. Another would be to legalize prostitution. And the authors offer an array of studies and findings suggesting that legal prostitution would be resolve a number of ills.

Not all of their evidence is convincing. The authors claim, for instance, that most women choose prostitution willingly. But that seems quite dubious in light of the high proportion of those women who were victims of child abuse, and who began selling their bodies before reaching maturity.

The Need for a Stronger Basis for Sexual Rights Than Now Exists

Despite Lawrence, the authors' alarm at the fragility of our sexual freedoms is wholly justified, and their suggested test for protecting sexual behavior is worth exploring seriously. Sexual Rights is flawed fails only in that it does not suggest a strong legal or constitutional basis for imposing such a test.

That basis cannot consist merely of "substantive due process," or "penumbras and emanations." It must be a more coherent framework that gives us a way to identify and protect unenumerated but fundamental rights. The authors might have considered the Privileges & Immunities Clause, for example, which plainly provides for the federal protection of fundamental rights. Despite a strong portrait of the vulnerability of sexual rights in America, the authors fail to offer an equally compelling solution.

Peter Lurie is general counsel to Virgin Mobile USA, a wireless service for young people. The opinions expressed are his own.