The “Right To Privacy” Sword Swings Both Ways

Is there a “right to privacy”?  The answer, apparently, is whether you want there to be one for whatever outcome you’re trying to achieve.  Cristian Farias makes the point in noting how the Alliance Defending Freedom, an evangelical legal advocacy group, has discovered the right and seized upon it in opposition to the government’s transgender overreach.

As a result of the government’s overreach, students “will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex,” wrote lawyers for the faith-based Alliance Defending Freedom, a legal advocacy group representing the plaintiffs.

The “right to privacy” is a peculiar claim for Alliance Defending Freedom, which over the years has supported “religious freedom” litigation before the Supreme Court and lower courts in a number of high-profile disputes. A recent Mother Jones report suggested the group may have played a role in the wave of similar bathroom bills appearing in a number of states.

The reason ADF’s appeal to “bodily privacy rights” or the “fundamental right to privacy” may seem out of place — especially in light of recent constitutional history — is the lack of an explanation for where the right comes from. The lawyers provide no legal citations or support for its source.

Before diving in any deeper, it’s critical not to conflate the implicit right to privacy from the government, best reflected in the Fourth Amendment, from any “fundamental right to privacy” from each other. Just as the government can’t make a law restricting our religious beliefs, your next door neighbor can tell you that your god sucks and his is the real one. There will be no neighborhood pool party this summer, by the way.

So the right to privacy from governmental intrusion is a distinct issue from any claim of a right to privacy per se. This isn’t a new claim. The anti-revenge porn folks claim it exists, and that victims of revenge porn have it and it trumps free speech. See how that works?  Now, the ADF says its victims have it too.

Matt Sharp, one of the ADF lawyers representing the students, tried to make a layman’s case for privacy and his clients in an online op-ed in The Daily Signal, but he sidestepped explaining the constitutional source for his position.

“Why does privacy even matter? Sure, our courts have recognized that it’s a constitutionally protected right. And our society has long structured itself around the need to allow privacy for the sexes in intimate settings,” Sharp wrote, but stopped short of delving much deeper.

In this instance, the “constitutionally protected right” [cite needed] works in favor of its argument, which leaps over the existence of the right to reach the appeal to emotion, why it matters. And with that swoosh, the right to privacy goes from justifying criminalization of things that make people cry, the progressive darling, to the sanctity of intimate sexual settings, the conservative’s sacred cow du jour.

That the Constitution provides no free-standing right to privacy isn’t really at issue, but why then has the ADF seized upon it?

The late Justice Antonin Scalia, who roundly rejected atextual readings of the Constitution, dissented in these cases time and again, and in 2013 went as far as to state that “there is no right to privacy“ and that the Supreme Court was wrong to ever say that there was. Legal minds on the right generally hold to that view.

Does this mean religious conservatives are embracing the right to privacy anew, or is it simply litigation strategy in the wake of their support of North Carolina’s bathroom bill?

But this would be terribly cynical, disingenuous, if sides swapped imaginary “fundamental rights” whenever it served their purposes.  So, the ADF tries desperately not to emit the stink of a fantasy right.

Sharp, the ADF lawyer, explained in an interview that the specific goal of the North Carolina litigation isn’t to build on these historic precedents, which his organization continues to oppose.

“Those cases have taken” the right to privacy “and twisted it to justify taking human life,” he told The Huffington Post, in a reference to the Roe decision.

Instead, he said, the fundamental right his organization is advocating for is rooted in the part of the Constitution that protects citizens against unreasonable searches and seizures.

Total nonsense? Obviously, as there is nothing comparable about the Constitution creating limitations on government and how citizens get to behave toward each other. Playing the fantasy right card when it suits your outcome is no more legitimate when used by one side than the other.

As is noted regularly, the Constitution doesn’t “create rights,” but rather limits what the government can do about how we, ordinary folks, prefer to live our lives. Whether we have a “right” to do something only matters in connection with how the government chooses to dictate the lawfulness of our conduct. Aside from that, we basically get to do any damn thing we please. Eat broccoli or not? Entirely your call.

When it comes to what happens inside bathrooms (noting, as I’m inclined to do, that this really isn’t about bathrooms at all, but about extending the scope of sex discrimination under Titles VII and IX to gender identity discrimination) this is a clash of interests. Some folks want the predominant interest to be their gender privacy in bathrooms, locker rooms, housing, while others want the predominant interest to be the feelings, and safety, of transgender folks so they don’t get their butt kicked in the men’s room for wearing a dress.

To the extent that each side has a “right” to get whatever makes it happy and comfortable, it’s not a constitutional right. There is no free-floating right to privacy from each other, and it’s no less malarkey when posited by ADF than by Mary Anne Franks.

And if that wasn’t enough of a reason to reduce the argument to silliness, then consider the coup de grace: if there was such a right, it would apply with equal force to transgenders as anyone else. So let’s cut the crap, argue the relative interests in the real world, stop fabricating non-existent rights and, in the meantime, hold the executive branch’s feet to the fire for its usurpation of the legislative function by a couple bureaucrats manufacturing law out of their sad tears.

10 thoughts on “The “Right To Privacy” Sword Swings Both Ways

  1. Martin Goodson

    Personally, I’d have thought if you truly were to have a ‘right to privacy’ it would be violated by being compelled by the governme t to use or share a lockerroom or restroom with *anyone*.

    A person who is shy, or has some manner of infirmity, disability etc is likely to be averse to undressing in front of a bunch of people full stop. Don’t they also have a right to ‘bodily privacy rights’?

    1. SHG Post author

      This is why the issue fails to fall neatly within the confines of other forms of prohibited discrimination. It’s not that there aren’t competing interests at stake, but that the “solutions” create myriad other problems that need to be considered.

  2. losingtrader

    Why? Why must you bring up broccoli?
    I guess it’s just another SHGism:
    20) I love most veggies. Not broccoli.

  3. Peter Vanderwaart

    Have you noticed that nobody seems to be worried that a teen of male birth sex and female gender identity would have to use the men’s room under the NC law?

    1. SHG Post author

      Not only haven’t I noticed that to be the case, but it’s been raised expressly, and is one of the aspects of this that raises significant issues. How is it possible that you didn’t notice any of this?

      1. Peter Vanderwaart

        What I’ve seen is all about the ladies room, and cis females being intruded upon.

  4. Richard G. Kopf


    Speaking of bathrooms, gender dysphoria, the religious right, social justice warriors and sex discrimination, there is something delicious about the fact that the “right of privacy” arose paradoxically from a condom (or, more precisely, the inability to buy one). A little like “I want my MTV.”

    All the best.


  5. MarK M.

    Is it merely a coincidence that the name of Chevy and Beverly’s family in Vacation is IDENTICAL to the Plaintiff’s name in the case referenced by the esteemed black-robed one? I’ve always wondered (or not). . . .

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