Friday, August 05, 2005

Privacy, Schrivacy
The more I read about Supreme Court justice-designate John Roberts, the more I find myself worried about one thing: his stand on the right to privacy, which seems to be that there is really no such right.

Four important Supreme Court decisions established the right to privacy: Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), Roe v. Wade (1973), and Lawrence v. Texas (2004). All of these cases have to do with the right of people to do what they want in their bedrooms. Griswold overturned a Connecticut law that forbade married couples from using birth control (!). Eisenstadt essentially extended the right to use birth control to unmarried couples. Roe involved the right of a woman to decide whether to have a baby at all. Lawrence was the famous Texas sodomy case, which overturned laws limiting what consenting adults could do behind closed doors. Each of the cases that followed Griswold rests on it--and Roberts is on record saying he believes Griswold was wrongly decided. (Liberal Oasis has lots of pertinent links and commentary on the decisions and their implications here.)

Right-wing thinkers have hated the Griswold decision for a long time, blaming it for everything from hippies to Bill Clinton, and they'd be happy to see it go. In addition, many social conservatives blame everything that's wrong with the country on sex, so it's only logical to assume that they'd be happy with something that allowed limits on sexual behavior. In John Roberts, both groups have got a justice they can get behind. (So to speak.)

It's not hard to imagine Roe being overturned at some point in the next few years. It's almost guaranteed--although as we've noted here before, it won't lead to an instantaneous national ban on abortion. But the chance we might lose other bedrock privacy rights seems batshit crazy--at least until you contemplate how much batshit-crazy stuff has come to pass in the last few years.

That said, however, making it illegal for married couples to use birth control seems extremely unlikely to me. There's no constituency for such an idea outside of the hardcore theocrats. The fact is that there are millions of legitimate wingnuts out there who, despite their politics, would rather not risk making a baby every time they dance the horizontal bop.

Making it flatly illegal for unmarried people to get birth control is a pro-lifer's wet dream. (Shaky metaphor, I know). The logic on which such a ban would rest is as dubious as the logic on which abstinence education rests. "If people can't get birth control, they won't have sex" is just as loony when you're talking about adults as it is when you're talking about teenagers. But in wingnut fantasy world, abstinence education works--so you can bet they wouldn't hesitate to apply its dubious lessons elsewhere if the Supremes opened the way.

But undermining the right to privacy as it applies to homosexual acts--that would have far-reaching effects right away. It would move same-sex marriage far beyond the pale, and give the green light to all sorts of persecutions of gays. It would also permit cultural know-nothings to legislate against anything sexual with which they have a problem--closing down your local erotic boutique, for example, or banning fetish night at your favorite urban nightspot, or even coming after heterosexual couples who have a taste for, shall we say, alternative uses of their equipment.

If the worst happens in the next few years and this critical quartet of decisions is eroded, the first effect will be the return to a state-by-state patchwork of laws involving privacy, again largely along red/blue lines. We can hope that a few places will still exist where what you and your significant other do with the lights out (or on, if that's the way you like it) is exclusively your business.

More than almost anything else I can imagine, wouldn't the end of privacy in some parts of the country be the final straw that makes people who live there get the hell out? Imagine the cosmopolitan citizenry of Atlanta suddenly facing draconian laws governing their bedroom behavior, or the cosmopolitan citizenry of Austin suddenly finding it impossible to get birth control. Imagine the exodus to more enlightened regions, not just of the nominally progressive, but of the politically disengaged who just want the right to get down as they please. I'm not necessarily imagining only a population shift, either. Couldn't a red/blue division over something as fundamental as privacy accelerate the actual breakup of the country?

It's a pretty wild speculation. We've put up with a lot in this country over the last several years that has strained the Union without breaking it, but there must be a last straw out there someplace. I'm convinced that the specter of a couple's private business becoming subject to public regulation could be it. And if it is--well, good, then.

(This post has been slightly edited since it first appeared.)

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