Invasion of Privacy

Invasion Of Privacy in the United States

Invasion Of Privacy and the Same-Sex Marriage in California

By Bob Egelko, who is legal affairs reporter for the San Francisco Chronicle.

In the 1970´s there were a desire to write privacy into the California constitution. That, it seems, was the modest origin of a two-word amendment to the list of inalienable rights guaranteed by article I, section I of the California Constitution–a list that now includes “enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy. (Nine other states–Alaska, Arizona, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington–also have privacy amendments in their constitutions.)

There was remarkably little controversy when the proposal breezed through the Legislature and won approval by 63 percent of the voters in the November 1972 election.

In the following decades, the state Supreme Court invoked privacy rights to prohibit police spying on campuses, legislative restrictions on abortions for poor women and minors, and a city’s limit on the number of unrelated people who may live in a home. But in recent years privacy has taken a battering from purveyors of digital technology and guardians of public security. With surveillance cameras on street corners, tracking and data mining on the Internet, drug testing and email monitoring by employers, and government agents infiltrating meetings and tapping phones without warrants, even an inalienable constitutional right seems to be a thin shield.

So it came as something of a jolt in May 2008 when the state Supreme Court overturned an initiative statute enacted by voters in 2000 that allowed only opposite-gender partners to wed. The 121-page opinion gave California’s privacy right a new dimension, declaring that marital rights for same-sex couples derive from it. Writing for a 43 majority, Chief Justice Ronald M. George announced that “the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section I.” (In re Marriage Cases, 43 Cal. 4th 757, 818 (2008).)

The right to marry isn’t as obvious a component of privacy as, for instance, the right to keep the government from reading your mail or peeking into your bedroom. But as George pointed out, California has defined privacy broadly to include a “right of intimate association” that should be free from unnecessary intrusion (43 Cal. 4th at 814).

Today, the chief justice wrote, that right includes “the opportunity of an individual to establish–with the person with whom the individual has chosen to share his or her life–an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” (43 Cal. 4th at 781.)

Legally, what’s likely to be the ruling’s most enduring legacy came elsewhere in the opinion. That was the majority’s conclusion that the historical and baseless persecution suffered by gays and lesbians entitles them to the same strict scrutiny of discriminatory laws that California assigns to laws that discriminate on the basis of race, gender, or religion. It was the first such ruling by any state supreme court, and it has the potential to topple numerous state and federal laws if it is adopted in other states. And George’s designation of antigay discrimination will survive even if California voters reenact the ban on same-sex marriage by constitutional amendment in November.

The heart of the ruling–its focal point and its emotional center as well–was the privacy-based right to marry the person of your choice, no matter what the neighbors think or the state decrees. The court’s analysis will be attacked on legal, political, and moral grounds. But its underlying perspective–a live-and-let-live ethos in a diverse culture-seems fittingly Californian.

J. Anthony Kline, presiding justice of Division Two of the First District Court of Appeal, says that for the people most affected by the ruling, privacy and autonomy are probably more important motivations than equality anyway. It was Kline’s dissent from a 21 appellate decision upholding the restrictive marriage law two years ago that first spotlighted the privacy issue (In re Marriage Cases, 143 Cal. App. 4th 873, 943-984 (2006)).

The main reason most same-sex couples want the right to marry, Kline contends, is “not just because opposite-sex couples have it, but because the denial to them of the ability to define who they are and express themselves through the intimate association our society prizes most highly is not just disrespectful but dehumanizing.”

A privacy analysis, he says, also brings into focus the central claim of the gay-marriage opponents: that same-sex marriage represents a change in the nature of marriage, and thus it falls outside of the fundamental right to marry that courts have recognized. Through the lens of privacy, Kline says, a court must identify the attributes of traditional marriage that the constitution protects, and then decide whether those attributes also apply for same-sex couples–a question that both he and Chief Justice George answered affirmatively.

However, the plaintiffs in the marriage cases (several same-sex couples and the city of San Francisco) gave little weight to privacy in their legal arguments. Instead, they stressed the law’s discriminatory nature and drew parallels with the ban on interracial marriage that the court had struck down 60 years ago (Perez v. Sharp, 32 Cal. 2d 711 (1948)).

For the authors of the 1972 California constitutional amendment, same-sex marriage wasn’t even a blip on the screen. Same-sex sodomy, after all, was still a crime in California until 1975, when Assemblyman Willie Brown sponsored its repeal. But there were more ambitious goals behind the privacy amendment than its sponsors chose to emphasize publicly.

For the American Civil Liberties Union–one of the forces behind the amendment–an equal but less public concern was protecting a women’s right to choose an abortion. The U.S. Supreme Court’s blurry definition of a privacy right in Griswold v. Connecticut (381 U.S. 479 (1965)) was being tested in Roe v. Wade, which had just gone through a second round of arguments (410 US 113 (1973)). California’s relatively liberal abortion law, signed in 1967 by Gov. Ronald Reagan, had been broadened further by the state Supreme Court (People v. Belous (71 Cal. 2d 954 (1969)). But the legal outlook for abortion rights was uncertain, and a statewide debate was just the kind of controversy that could derail a seemingly innocuous ballot measure linked to the emotional issue.

Ken Cory, an Orange County assemblyman and future state controller, was the measure’s chief legislative author, and George Moscone, the future San Francisco mayor, was the Senate floor sponsor. They guided the measure through the Legislature with two-thirds majorities in each house, steering clear of any focus on abortion.

The ACLU then recruited Anthony Amsterdam, a professor at Stanford Law School who now teaches at New York University, to draft the ballot arguments. Amsterdam’s arguments did not mention abortion, yet they planted the seeds of legal theories for future courts to harvest by declaring that a right to privacy would ward off unwanted invasion of “our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.”

Anti-abortion groups were silent; the only ballot argument offered against the constitutional amendment speculated that the measure would make it easier for welfare applicants to hide their income. But for anyone familiar with the law, Justice Kline says, “it was clear that it [Amsterdam’s ballot argument] was talking about Griswold.”

The payoff for advocates of the amendment came years later, when the state Supreme Court invoked the right to privacy in a ruling that guaranteed poor women continued access to abortions under Medi-Cal, overriding more than a decade of annual budget cuts (Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252 (1981)). The ruling provided the foundation for a later decision, written by Chief Justice George, that overturned a parental consent law for minors’ abortions (American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997)). As a consequence of the court’s interpretation of privacy rights, “California women have far more freedom in childbearing decisions than women in any other state,” says Margaret Crosby, an ACLU attorney who argued both cases.

Before the Medi-Cal ruling, the court had relied on the autonomy aspect of privacy when it struck down a Santa Barbara ordinance–similar to laws in 36 other cities, including Los Angeles and San Diego–that prohibited more than five unrelated people from living together (City of Santa Barbara v. Adamson, 27 Cal. 3d 123 (1980)).

Cause of Action for False Light Invasion of Privacy: an Overview

This section examines this type of action. This subject identifies the various elements of the Cause of Action for False Light Invasion of Privacy, offering a practical approach to the litigation issues of this cause of action. See also the entry about legal risks.