Death of constitutional right to privacy: transformation of the right to make fundamental personal decisions into an aspect of constitutional liberty

Jamal Greene, The So-Called Right to Privacy, UC Davis Law Review, Forthcoming (Stevens Symposium), Social Science Research Network, Aug. 18, 2009

Although the constitutional right to privacy has its origins in the desire to protect the institution of marriage from state interference, the language of privacy rights is an exceptionally poor fit for extending constitutional protection to same-sex marriage. Marriage is a quintessentially public institution—the notoriety of the commitment is a source of its symbolic gravity. As Massachusetts Supreme Judicial Court Chief Justice Marshall wrote in Goodridge v. Department of Public Health, the case requiring legal recognition of same-sex marriage in Massachusetts, “marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” [798 N.E.2d 941, 954 (Mass. 2003).] Just as the deeply felt public interest in abortion makes “privacy” a non-starter for many abortion rights opponents, reliance on privacy interests to extend constitutional marriage rights to same-sex couples would give opponents an inviting target for criticism ... Focusing instead on liberty, and by extension on equality, is no guarantee of success, and in [Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004)] it was no more successful than the privacy argument.150 But a conversation about equality in marriage or family planning invokes an interest that is both compelling and, unlike the right to privacy, exogenous to the interest of the state. [pages 25-26]