Privacy in the home

Privacy comes up a lot nowadays in the context of technology. But legal conceptions of privacy predate the information age.

From a recent reading for Property law:

The freedom of association is often inextricably entwined with the constitutionally guaranteed right of privacy. The right to ‘establish a home’ is an essential part of the liberty guaranteed by the Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring). And the Constitution secures to an individual a freedom ‘to satisfy his intellectual and emotional needs in the privacy of his own home.’ Stanley v. Georgia, 394 U.S. 557, 565 (1969); see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66–67 (1973). Constitutionally protected privacy is, in Mr. Justice Brandeis’ words, ‘as against the Government, the right to be let alone . . . the right most valued by civilized man.’ Olmstead v. United States, 277 U.S. 438, 478 (1928) (dissenting opinion). The choice of household companions—of whether a person’s ‘intellectual and emotional needs’ are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution. See Roe v. Wade, 410 U.S. 113, 153 (1973) . . .

Vill. of Belle Terre v. Boraas, 416 U.S. 1, 15–16 (1974) (Marshall, J., dissenting) (emphasis added).

This was a case about a local ordinance that regulated what kinds of homes could be kept, not about, for example, sexual conduct or faith. But the passage illustrates the extent to which “privacy” is implicated any time any level of government attempts to regulate private conduct within a home—foreshadowing the social progress that would follow, particularly with same-sex rights.

Justice Marshall cited, as would later be recognized as the seminal line of cases finding privacy in the Constitution, Fourth Amendment cases like Olmstead and abortion/contraceptive cases like Roe and Griswold. And what he criticized in the ordinance was its attempt to keep out people who had different “lifestyle choices”:

The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community. The village has, in effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents.

Belle Terre, 416 U.S. at 16–17 (Marshall, J., dissenting) (emphasis added).

Zoning officials properly concern themselves with the uses of land—with, for example, the number and kind of dwellings to be constructed in a certain neighborhood or the number of persons who can reside in those dwellings. But zoning authorities cannot validly consider who those persons are, what they believe, or how they choose to live, whether they are Negro or white, Catholic or Jew, Republican or Democrat, married or unmarried.

Belle Terre, 416 U.S. at 14–15 (Marshall, J., dissenting) (emphasis added).

So why was Justice Marshall alone in his dissent?

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