The Right To Privacy

The Right To Privacy: Gays, Lesbians, and the Constitution

Vincent J. Samar
Copyright Date: 1991
Published by: Temple University Press
Pages: 260
https://www.jstor.org/stable/j.ctt14bt5zk
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  • Book Info
    The Right To Privacy
    Book Description:

    Where did the right to privacy come from and what does it mean? Grappling with the critical issues involving women and gays that relate to the recent Supreme Court appointment, Vincent J. Samar develops a definition of legal privacy, discusses the reasons why and the degree to which privacy should be protected, and shows the relationship between privacy and personal autonomy. He answers former Supreme Court nominee Robert Bork's questions about scope, content, and legal justification for a general right to privacy and emphasizes issues involving gays and lesbians, Samar maintains that these privacy issues share a common constitutional-ethical underpinning with issues such as abortion, surrogate motherhood, drug testing, and the right to die.

    eISBN: 978-1-4399-0378-0
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-2)
  4. Introduction A WORD ABOUT POLITICS AND ORIGINAL INTENT
    (pp. 3-10)

    To a substantial extent, this book is about doctrine and the important political points courts can make byemphasizing doctrine. Court decisions that might be questionable or controversial are frequently offered as merely interpretations of the law. Judicial (and some political) conseIVatives, in particular, make much ofthis claim. Therefore, by showing that on their own terms, politically hot decisions likeBowers v. Hardwick¹ (which upheld a state’s right to prohibit by criminal statute adult consensual homosexual activity in the home) do not comport with existing law, we expose the underlying political agenda that motivated the decision . Herein lies the real...

  5. PART ONE THEORY
    • 1 THE OBJECTS OF LEGAL PRIVACY
      (pp. 13-50)

      Can a gay or lesbian person validly claim that the constitutional right to privacy is violated when he or she is forced from a job because of sexual orientation or when the state enacts a sodomy statute prohibiting sexual relations among same-sex individuals? Does a person with AIDS or a person who is HIV positive have the constitutional right not to be forced into quarantine or to have his or her body tattooed or name included on a governmental list of infected and potentially dangerous individuals if no other person is endangered? Does a woman have the constitutional right to...

    • 2 THE CONCEPT OF LEGAL PRIVACY
      (pp. 51-82)

      In Chapter I , we noted that three distinct objects seem to have been subsumed under the concept of privacy. These objects correspond to three areas of United States law: Fourth Amendment, torts, and constitutional. In the Fourth Amendment area, the object is what one can reasonably expect to keep private. In the torts area, it is one’s seclusion or solitude, not having embarrassing facts published, not being placed in a false light, and not having one’s likeness taken for commercial purposes without permission. In the constitutional area, it is being free to make certain kinds of intimate decisions about...

    • 3 A JUSTIFICATION FOR LEGAL PRIVACY
      (pp. 83-118)

      To say something is a nonn is to say, first, that it is a standard, model, or pattern for a group and, second, that it is valued by the group as such a standard, model, or pattern for some concrete or abstract reason. The reason is concrete when it relates to fulfilling the immediate purpose of a person, as when one claims that some object, infonnation, or action is private in order to prevent a particular interference. The reason is abstract when it relates to promoting a broader social value, as when one claims that privacy is an essential element...

  6. PART TWO PRACTICE
    • 4 LEGAL EPISTEMOLOGY AND PRIVACY
      (pp. 121-138)

      So far I have assumed that justification for a legal right to privacy grounded in political morality would satisty those in the legal profession of the merits of my claim. Now I will show why this should be true. On its face, moral justification of a right is not the same as legal justification. Even so, in a context where what is at stake is a fundamental constitutional right, moral justification may be not only all that is available but exactly what is needed. In setting forth the reasons for this position, I will show how my theory accords with...

    • 5 APPLICATIONS
      (pp. 139-204)

      In this chapter, I give the same attention to privacy issues involving gays and lesbians as I do to other privacy issues, reflecting the fact that generalizations from lesbian and gay issues can be made to other privacy questions. In all, I will consider ten different applications for the conception of privacy sketched out in the previous chapters: the openly gay or lesbian teacher; gay or lesbian parenting and marriage; surrogate motherhood; privacy and AIDS; adult consensual sodomy statutes; the justification of abortion; data banks and electronic fund transfer services; pornography and drugs in the home; employer drug and polygraph...

  7. Epilogue AUTONOMY: THE ULTIMATE QUESTION
    (pp. 205-208)

    The concern of this book has been to develop a theory of legal privacy that explains precisely what privacy is and shows how it is justified. With respect to the latter, I have argued that because democratic government in the Western sense values autonomy as a fundamental end, it must also value privacy as a fundamental right. This then raises the question, Why should a democratic society value autonomy as a fundamental end? The answer cannot be found by analyzing the concept of democracy without circularity. One can certainly imagine democratic governments that grant their people the basic freedoms of...

  8. Notes
    (pp. 209-236)
  9. Selected Bibliography
    (pp. 237-248)
  10. Index
    (pp. 249-254)