But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.Scalia notes the "remarkable and telling fact," which he says he has never seen before in the Supreme Court, that the party saying his rights have been violated does not — even once —cite a constitutional text in his brief:
To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.Questioned at oral argument, Nelson's lawyer said what you'd expect him to say: the Due Process Clause. And then Scalia goes on to say what you'd expect him to say, disparaging "the infinitely plastic concept of 'substantive' due process."
Regrettably, this Lincolnesque honesty evaporated at oral argument....
I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.Alfred Hitchcock line of jurisprudence... I think that has something to do with McGuffins.
I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.
Justice Kennedy? Hot sauce to go with those words?...
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.Justice Kennedy is certainly very important in the prediction of what the Supreme Court will do, and Walker may have written with the intent to influence him, but let's give Sandra Day O'Connor the respect she deserves. The line "moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation" is from O'Connor's concurring opinion in Lawrence — and Walker's opinion is clear about that (on p. 133).
Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”
... The Equal Protection Clause “ ‘neither knows nor tolerates classes among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).Let's give Sandra Day O'Connor her due. She said some things no one else said.
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
Liberals worry about constitutional rights getting in the way of legislation, and conservatives have cozied up to the notion of unwritten rights. For that to happen, everyone has to stop focusing on the right of privacy.
[T]he tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns....Much of this is the familiar hand-wringing over Citizens United. The editors admit that a lot of what happened isn't so bad, but it must be bad. It's the Roberts Court. So:
Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups.Notice the big flip that's taken place in the last year or so. Liberals worry about constitutional rights getting in the way of legislation, and conservatives have cozied up to the notion of unwritten rights. For that to happen, everyone has to stop focusing on the right of privacy. Isn't it odd?
If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.There's no other reference in the editorial to "judicial modesty" or Elena Kagan so I'm not sure what Kagan said that's being interpreted as a pledge by the new Justice to go in there and school the oldsters about what something really means. But everyone who has any sophistication about law knows that the Constitution trumps legislation and the question is the scope of constitutional rights. The nominees aren't asked to say — nor would they say — that they will interpret rights narrowly so that more legislation will survive or, conversely, that they will interpret rights expansively and nullify democratic decisionmaking. They're all asked to say and they all promise to say exactly what the rights really are and to enforce those rights despite pressure to allow the democratic choice to prevail and despite their own preferences about what ought to be legislated.
Ma said his decision to join the swingers was voluntary. "Marriage is like water. You have to drink it. Swinging is like a cup of wine. You can drink it if you like. If you don't like it, don't drink it," he said in interviews with Chinese media.
In arguing that his activities involved consenting adults meeting in nonpublic places, Ma's defiance seemed to strike a chord in an era of relative sexual freedom, where extramarital affairs and prostitution are common — drawing support from those who believe the Chinese government should stay out of the bedroom.
Entering the court at the start of the two-day trial on April 7, he blurted out, "How can I disturb social order? What happens in my house is a private matter."
II-307 STATEMENT ON CONSENSUAL RELATIONSHIPS
Guidelines
It is in the interest of the University of Wisconsin-Madison to provide clear direction and educational opportunities to the university community about the professional risks associated with consensual romantic and/or sexual relationships between members of the university community where a conflict of interest and/or a power differential between the parties exists. Individuals entering such relationships must recognize that:
Conflicts of Interest may arise when such relationships occur between and among faculty, staff, students and prospective employees. University policies and ethical principles already preclude individuals from evaluating the work or academic performance of others with whom they have intimate familial relationships, or from making hiring, salary or similar financial decisions concerning such persons. The same principles apply to consensual romantic and/or sexual relationships and require, at a minimum, that appropriate arrangements be made for objective decision-making.
Power Differentials between the parties in a consensual romantic and/or sexual relationship may cause serious consequences even when conflicts of interest are resolved. Individuals entering into such relationships must recognize that:
the reasons for entering, maintaining, or terminating such a relationship may be a function of the power differential;
where power differentials exist, even in a seemingly consensual relationship, there are limited after-the-fact defenses against charges of sexual harassment. Furthermore, under certain situations consensual relationships may be outside the scope of employment for university employees and, if so, an individual would not be covered by the state's liability protection in subsequent litigation; and
it is almost always the case that the individual with the power or status advantage in the relationship will bear the burden of accountability.
Reporting Policy
Where a conflict of interest exists, or may exist, in the context of a consensual romantic and/or sexual relationship, the individual with the power or status advantage shall notify his or her immediate supervisor. The supervisor shall have the responsibility for making arrangements to eliminate or mitigate a conflict whose consequences might prove detrimental to the university or to either party in the relationship.
[UW-Madison Faculty Document 940, 6 April 1992]
Assisted suicide is also legal in the Netherlands, Belgium, and Luxembourg, as well as in the American states of Oregon, Washington, and Montana. But in all those places, the practice is restricted to people with incurable diseases, involves extensive medical testing and consultation with physicians, and requires that applicants be permanent residents. By contrast, Switzerland’s penal code was designed such that, without fear of prosecution, you can hand someone a loaded pistol and watch as he blows his brains out in your living room. And there is no residency requirement. There are only two conditions: that you have no self-interest in the victim’s death, and that he be of sound mind when he pulls the trigger.
The scope of stalking was revealed in a study released by the Justice Department in January, which found that 3.4 million people had been subjected to stalking over a one-year period...."Subjected to stalking"? Does that mean they believed they are being stalked or that it has been proved? Note how the quote in the title suggests that GPS should be used to substantiate allegations — but you're not supposed to notice the threat to individual privacy, because these allegations aren't called allegations. These are statements by "victims" who have the problem of needing to "prove that they are being stalked." But if it's the "only way" to prove there is stalking, then how do we know whether the accused deserves to be monitored?
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,”... and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.That's plain old deference to the democratic process and a resistance to creative interpretation of constitutional text. There is nothing — absolutely nothing — to support the proposition that Scalia thinks it's a good idea to lock up gay people. It's the usual notion that judges shouldn't be basing their decisions on whether they think a statute is a good idea or not. It's the same point made by Justice Thomas (who, Frank says, is not a homophobe):
I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.
