Sexual Activity, Privacy, and Substantive Due Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Since the 1960s, the Supreme Court has considered the constitutionality of several governmental actions aimed at regulating aspects of sexual conduct. These actions have included efforts to regulate the use of contraceptives; the possession or distribution of obscene materials; and individuals’ engagement in same-sex intimate activities. To the extent that the Court has invalidated certain governmental actions in this context, it has often relied on the existence of a right to privacy in the Constitution. However, the manner in which the Court has interpreted this privacy right has evolved over time.

In 1965, the Court, in Griswold v. Connecticut, first recognized a protected right of marital privacy when it struck down a state law that banned the use of contraceptives.1 The law, in the Court’s view, “operate[d] directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation” and impermissibly intruded upon the fundamental right of privacy surrounding the marriage relationship.2 At the time, the Court concluded that this privacy right stemmed not from the Fourteenth Amendment’s Due Process Clause, but from the “penumbras” of the Bill of Rights.3 In Eisenstadt v. Baird, through the application of equal protection principles, the Court effectively extended the right to use contraceptives to unmarried couples.4

After Griswold, the Court considered the right of privacy in a different context in Stanley v. Georgia. In that case, the Court struck down a state criminal law that banned the possession of “obscene matter.” 5 The defendant in Stanley was charged under the state law after the authorities executed a warrant at his home in connection with an unrelated investigation and uncovered three reels of eight-millimeter film deemed to be “obscene.” 6 In holding that both the First and Fourteenth Amendments “prohibit making mere private possession of obscene material a crime,” the Court found that the mere categorization of the films as “obscene” was insufficient to justify “such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments.” 7 In so concluding, the Court seemingly suggested that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home.8 This broad conception of a privacy right could potentially protect even illegal personal activities if they are practiced in the privacy of one’s home.

In a series of subsequent cases addressing both federal and state law regulating obscene materials, however, the Court upheld those laws and largely confined Stanley to its facts.9 In Paris Adult Theatre I v. Slaton, the Court, in upholding a state-sought injunction prohibiting the showing of allegedly obscene films by two theaters, further rejected the argument “that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books.” 10 In the Court’s view, “[t]otally unlimited play for free will . . . is not allowed in our or any other society.” 11

Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. Instead, the Court has recognized, in sometimes disparate lines of cases, a right of personal privacy “deemed fundamental or implicit in the concept of ordered liberty.” 12 Describing its pre-1973 precedents, the Court in Roe v. Wade stated that this guarantee of personal privacy encompasses “activities related to marriage, procreation, contraception, family relationships, and child rearing and education.” 13 Roe itself recognized this privacy right, “founded in the Fourteenth Amendment’s concept of personal liberty,” to extend to the right to obtain an abortion—a recognition that the Court would later retreat from almost five decades later.14 In Carey v. Population Services International, the Court further deemed the protected right of privacy to encompass “[t]he decision whether or not to beget or bear child” in striking down a state law that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.15

Until 2003, Bowers v. Hardwick largely defined the outer limits of the right to privacy. In that case, the Court upheld a state law that criminalized sodomy and in doing so, rejected the suggestion that its prior privacy cases protecting “family, marriage, or procreation” extended protection to private consensual homosexual sodomy.16 The Court also rejected the broader claim that the privacy cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.” 17 In so concluding, the Court relied significantly on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibited the practice.18 Finding that the privacy of the home does not protect all behavior from state regulation, the Court determined that it was “unwilling to start down [the] road” of immunizing voluntary sexual conduct between consenting adults.19

In 2003, however, the Court overruled Bowers in Lawrence v. Texas, relying again on the right of privacy.20 Citing its privacy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals impermissibly “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” 21 The Court concluded that the state law furthered “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 22 Although the Court seemed to recognize that a state may have an interest in regulating personal relationships where there is a threat of “injury to a person or abuse of an institution the law protects,” 23 it seemed to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.24 Consequently, the outer limits of this privacy right, as it relates to regulation of sexual activity, remain unclear.25

1: Griswold v. Connecticut, 381 U.S. 479, 481–84 (1965).
2: Id. at 482, 485–86.
3: Id.
4: 405 U.S. 438, 443 (1972).
5: Stanley v. Georgia, 394 U.S. 557, 568 (1969).
6: Id. at 558.
7: Id.at 565, 568.
8: See id. at 565 (stating that “[w]hatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home” and that “[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch” ).
9: See, e.g., United States v. Reidel, 402 U.S. 351, 354–56 (1971) (finding no right to distribute obscene material for private use); United States v. Thirty-seven Photographs, 402 U.S. 363, 375–76 (1971) (finding no right to import obscene material for private use); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) (finding no right to acquire obscene material for private use); Osborne v. Ohio, 495 U.S. 103, 109–111 (1990) (finding no right to possess child pornography in the home).
10: 413 U.S. 49, 63–64 (1973).
11: Id. at 64.
12: Roe v. Wade, 410 U.S. 113, 152 (1973) (internal quotations omitted).
13: Id. (internal citations omitted).
14: Id. at 153–154. For a more detailed discussion of the evolution of the Court’s analysis of the right to abortion, see Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine to Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine.
15: 431 U.S. 678, 684–91 (1977).
16: See Bowers v. Hardwick, 478 U.S. 186, 190–91 (1986).
17: Id. at 191.
18: Id. at 191–92.
19: The Court voiced concern that “it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” Id. at 195–96. Dissenting Justices Harry Blackmun and John Paul Stevens, on the other hand, suggested that these crimes are readily distinguishable. See id. at 209 (Blackmun, J., dissenting), 217–18 (Stevens, J., dissenting).
20: Lawrence v. Texas, 539 U.S. 558, 564 (2003)
21: See id. at 564–67.
22: Id. at 578.
23: Id. at 567.
24: See id. at 577–78 (noting with approval Justice Stevens’ dissenting opinion in Bowers stating “that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack” ).
25: In Carey v. Population Servs. Int’l, 431 U.S. 678, 694 n.17 (1977), for instance, a plurality of Justices noted that the Court has not considered the extent to which the government may regulate the sexual activities of minors.