The Constitutional Amendments Protecting Privacy

US Supreme Court precedent has held that the right to privacy comes from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The First Amendment protects the right to speak freely, assemble peacefully, and worship according to individual choice. The Third Amendment prohibits the government from forcing individuals to quarter, house, or feed soldiers. The Fourth Amendment prevents the government from unreasonably searching or seizing an individual or an individual’s property. The Fifth and Fourteenth Amendments provide due process of law before the government can deprive an individual of life, liberty, or property. The Ninth Amendment states that rights not explicitly set forth in the Constitution may still exist. Taken together, these amendments indicate that the Constitution was written to erect a barrier between individuals and an overly intrusive and regulatory government. In modern society, this right to privacy guarantees the right to use birth control, the right to an abortion, and the right to participate in consensual sexual relations.

The Right to Consensual Sexual Relations

Even in the aftermath of Roe v. Wade, courts were reluctant to interfere with states’ interests in enacting and enforcing statutes that criminalized sexual conduct. In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court upheld a Georgia statute that made it a crime to engage in consensual sodomy (Bowers v. Hardwick, 2010). The Court stated that there is no fundamental right to engage in sodomy and that the history of protecting marriage and family relationships should not be extended in this fashion (Bowers v. Hardwick, 2010). Many years later, the Court changed its stance and overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, a Texas statute criminalizing homosexual sodomy was attacked on its face and as applied to two men who were discovered engaging in sex in their bedroom during a law enforcement search for weapons. The Lawrence decision rested on the due process clause of the Fourteenth Amendment. The Court held that intimate choices are a form of liberty protected by the due process clause, whether or not consenting individuals are married. The Court thereafter struck down the Texas sodomy statute because it was not justified by a sufficient government interest (Lawrence v. Texas, 2010).

Example of a Right to Privacy Analysis

Most states have statutes criminalizing consensual incest, which is sexual intercourse between family members who cannot legally marry. If an individual attacks a consensual incest statute as unconstitutional under the right to privacy, the court will balance the state’s interest in preventing harm to an infant, such as birth defects, with an individual’s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If the court finds that the government interest is compelling, it can uphold the statute as long as it is not vague or overbroad.

Figure 3.6 The Right to Privacy

Key Takeaways

• The constitutional amendments supporting the right to privacy are the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• The right to privacy in the Constitution protects an individual’s right to use contraceptives, to receive an abortion through the first trimester, and to engage in consensual sexual relations.

Exercises

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. A state statute prohibits inmates in state prison from engaging in consensual sodomy. An inmate is prosecuted under the statute. How will a court determine whether this statute is constitutional? Read the statute on which this exercise is based: California Penal Code § 286(e), http://law.onecle.com/california/penal/286.html.
2. Read Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Casey, Pennsylvania modified its abortion statute to include a twenty-four-hour waiting period and informed consent for minors. Did the US Supreme Court uphold the Pennsylvania abortion statute? The case is available at this link: http://www.law.cornell.edu/supct/html/91-744.ZS.html.