by Matt Barr

The ear of privacy

When we last tuned in, the notion of "privacy" had been set "on its ear" by modern abortion jurisprudence. There is nothing "private" about having an abortion; however, as neither we, Judge Randolph nor the Supreme Court (at least since Roe v. Wade, that opinion everyone knows and no one has read) discussed, at the very least you have a doctor-patient relationship, in which society expects there will be confidentialities exchanged. Now a federal court in... I'll give you three guesses which state, but you're only going to need one... has held that a school principal may violate an openly gay (at school) student's "privacy" when he tells mom she's got a girlfriend.

The idea that a "private decision" could be constitutionally protected is rejected by Judge Randolph in the abortion context, for the very good reason that law doesn't proscribe decisions, it proscribes actions. However, as I argued, identifying who has the authority to make a decision when concerns compete and different results may be desired is a different thing than protecting the "privacy" of it, and if the Court wants to call that "privacy" I'll go along with it. Now, though, federal judges are slinging the word around in ways so as to make it totally meaningless. No English speaker could defend Judge James V. Selna's holding that Charlene Nguon had "sufficiently alleged a legally protected privacy interest in information about her sexual orientation" in her lawsuit against her former school principal, unless they're on board with there being something called "substantive due process," too. (Right, I know.)

"Privacy" isn't a legal notion that was invented by the pro-abortion Justices on the Supreme Court. It has a long history in evidentiary and criminal law, for the most obvious example. You have a privilege that prevents your lawyer, doctor or priest from testifying as to things you told them in confidence in the course of your attorney-client, doctor-patient or priest-penitent relationship. But the moment you start yakking about those same things to other people, or even in the presence of other people, you have waived that privilege. You have a right to be secure in your home, papers and effects such that the police can't search without a warrant issued by a judge on probable cause. But if you leave the thing you don't want searched or siezed lying around in public, or even in the trash at the end of your driveway or in the dumpster, you are deemed not to have an "expectation of privacy" anymore, and are out of luck. Leave your dimebag on the passenger seat when you're pulled over for having a taillight out, and you won't be successful arguing that the police can't introduce it as evidence in your trial for possession. It was in the open where the cop, who had every right to stand looking in your driver's side window to ask for your license and registration, could see it.

But where you are "'openly lesbian' and 'constantly' hugging and kissing [your] girlfriend," as alleged by the school district -- I am not aware from the article that this is in dispute -- you do indeed, per Judge Selna, have an actionable claim that your "privacy interest" in information about your sexual orientation was expropriated. What we have here may or may not be good policy -- there is a separate issue, which if I know some bloggers will be the most blogged-about one, involving whether the inmates are in charge of the asylum during the school day -- but is there a privacy interest here, constitutionally protected or otherwise? What in the world is "private" here?

You can call "decisional autonomy" "privacy" because there's no obviously better shorthand. But there you're talking about the right and responsibility to choose a course of action. When you hold hands, hug and kiss in the hall in school, you've chosen a course of action that involves what is surely no one's business but your own -- your sexual orientation -- becoming decidedly public. "Privacy," in Judge Selna's context, has become meaningless.

Browse books from Amazon.com:
privacy Supreme+Court abortion