On the Failures of Privacy

In 1993, President Clinton signed into law a legislative compromise on allowing gays to serve in the military as long as they served in silence about their sexuality. This policy, known as Don't Ask, Don't Tell, Don't Pursue, Don't Harass (or, DADT), has led to the dismissal of numerous servicemembers and an ongoing legal and political headache. Recently, twelve service-members who were dismissed under DADT filed a case challenging the constitutionality of the military's now sixteen-year-old policy banning gays serving openly.

The case, Pietrangelo v. Gates, No. 08-824, charges that DADT violates both the First and Fifth amendments (and, by extension, the Fourteenth (see Bolling v. Sharpe (1954)), by abridging individuals' freedom of speech and rights to due process. Additionally, the plantiffs invoked the much-heralded (by pro-gay activists) Lawrence v. Texas (2003) decision that declared state laws against sodomy as unconstitutional under rights to privacy. Presumably, the hope in Pietrangelo v. Gates was to use the Lawrence precedent to establish the constitutionally-protected privacy of the "homosexual acts" with which DADT is so concerned (see the infamous Section 654), and therefore conclude that a policy abridging said acts is also unconstitutional.

Seems workable.

But on Monday, 8 June 2009, the Supreme Court tossed out this challenge altogether. The explanation for this action illustrates perfectly the failure of Lawrence v. Texas to be anything more than a marginal shift for the larger gay rights movement. The Court declared Texas' ban on sodomy to be unconstitutional because it violated an individual's (or a couple's) right to privacy. However, this justification has limited the scope of the decision's reach; only those actions and behaviors performed in the privacy of one's home are those currently protected under Lawrence. The right to be public is still far from our reach.

So when the Supreme Court considered this recent challenge to DADT, and particularly the Lawrence precedent, it should be no surprise that the Court refused to even hear arguments. Indeed, in the words of the court: "...The challenge fails because this Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), 'did not identify a protected liberty interest in all forms and manner of sexual intimacy.'" It most certainly didn't; it identified a protected right to privacy, not a protected liberty of expression or being. The "forms of [sexual] conduct" outlined in DADT are therefore "expressly excluded" from that which was recognized in Lawrence.

Until the queer community can garner legitimate and legally-protected access to the public sphere - and freedom of expression therein - this supposed protection under rights to privacy will continue to fall stunningly short of pushing the movement forward.