Chris Wolf on Privacy’s Homophobic Present

In December, I wrote a post entitled The Tort of Privacy’s Racist Past, discussing how a D.C. shop owner in the 1960s invoked the privacy torts to hide his racist comments in the hopes of keeping African American customers.  Leading privacy practitioner Chris Wolf recently wrote an Op Ed for CNN called “Gays Have Right to Privacy Too” about the privacy issues surrounding gay marriage.

Here is his piece:

“Tuesday was the first day same-sex weddings could be performed in the District of Columbia.  Last week, D.C. was added to the list of those few states that permit gay marriage. A law passed in December and signed by the mayor went into effect when Congress (which has the power to reject D.C. laws) refrained from interfering.  Likewise, Chief Justice John Roberts refused an application to the U.S. Supreme Court to block the gay marriage law from going into effect, on procedural grounds, saying that the legal challenge was premature.  This should not be viewed as a ringing endorsement from the high court for gay marriage or for protecting the privacy rights of gay people.

Only two months ago, in January, the Supreme Court was not so hands-off in gay-marriage-related cases. Twice, the court intervened in cases in which active opponents of gay marriage, in California and Washington, have claimed that their right to privacy will be invaded if they are not given legal protection to be unseen and anonymous.  In the California case, the high court ruled to prevent the broadcast of videotaped trial testimony of the organizers of Proposition 8, which bans same-sex marriage.  In the Washington case, which the court agreed to hear in full this year, the issue is whether the names on public petitions can be sealed. More than 130,000 signatures had been gathered by gay-marriage opponents in that case as part of an effort to place a referendum on the ballot to overturn a state domestic partnership law.

To those of us who strongly favor equal marriage rights — and who have a personal stake in them — providing cover to those who would keep those rights from us feels a little like a drive-by assault: We had a glance at the people attacking us, but now they are gone, not to be identified.

Another privacy interest is at stake in the gay marriage cases, and it will be interesting to see whether the Supreme Court embraces it with the same zeal demonstrated with respect to opponents of gay marriage.

This month, now that the D.C. gay marriage law has gone into effect, my domestic partner of more than 12 years and I will wed. With our marriage will come a bundle of rights, making us equal under the law to our heterosexual peers. More fundamentally, we will be able to have our loving commitment to each other officially recognized, like any other committed couple.

And in terms of personal privacy, no longer will I have to indicate my sexual orientation to anyone who asks me whether I am married, as I can thereafter simply answer “yes” rather than explain that I have a “domestic partner,” the well-understood code that one is in a gay relationship. The marriage license the Superior Court is providing us will include the right to privacy in our relationship.

I am not closeted, but it is part of my right to privacy to choose with whom I share the information about my sexual orientation. Indeed, that is what the California Supreme Court ruled in declaring equal marriage rights for gays and lesbians.

That decision was what led to Proposition 8 and the invalidation of the court’s ruling and, now, the equal protection lawsuit on trial in federal court in San Francisco to overturn the Proposition 8 ban. In its original ruling, the California court adopted an argument advanced in a brief filed by the Anti-Defamation League that I helped to write.

The U.S. Supreme Court has found that opponents of gay marriage who supported Proposition 8 — and whose testimony will be offered in San Francisco trial to show a discriminatory animus relevant to the equal protection issue — are entitled under their right to privacy not to have their testimony videotaped for public viewing.

The Supreme Court cited the potential harassment of the witnesses if their testimony is shown. The harassment argument also is being made about the signers of the petition in Washington state on gay marriage, who claim the right to have their names removed from public view. (That case admittedly, is more complicated, as petition signing has attributes of voting, where one’s vote is private.)

The difference in the privacy rights afforded gay couples and those who worked to ban gay marriage is obvious. The opponents are people who chose to involve themselves in a public debate, to enter the public square.

Indeed, my domestic partner and I were stopped at an intersection in San Diego in the run-up to Proposition 8 and were bombarded with placard-waiving, Proposition 8-supporting protesters, their signs condemning gay people as deviants. (Those are the kind of folks I would rather simply inform, if asked, that I am married rather than in a “domestic partnership” and thus avoid their scorn and preserve my privacy, defined by Justice Louis Brandeis as the “right to be let alone.”)

Gay couples, on the other hand, did not choose to be gay or have society prevent them from enjoying equal marriage rights, forcing them to self-identify when they are asked whether they are married.

As a litigator, I know that televising a trial can indeed create a circus atmosphere if it is not carefully controlled. On the other hand, filtering what goes on in a courtroom through the printed word only deprives people of the opportunity to see what really goes on — to judge demeanor and motive, which will be especially important in understanding the testimony of the Proposition 8 supporters.

The judge in the trial of Proposition 8 appeared to strike a balance, to avoid a circus, by allowing only delayed videotape access to coverage of the trial. The Supreme Court disagreed.

In the first privacy ruling in the California gay marriage case, the Supreme Court declared itself in favor of privacy for opponents of gay marriage. When the case comes back to it on the merits, as it surely will, let’s hope that other privacy issue, as well as the equal protection issue, finds similar support.

In the meantime, my domestic partner and I each look forward this spring to answering the question “Are you married?” with a simple “yes.”

The opinions expressed in this commentary are solely those of Christopher Wolf.

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14 Responses

  1. So is Mr. Wolff intimating that the fears are of the opponents are unfounded? Perhaps in the future, we could legislate that voting on such issues should mimic the proposed “card check” rules…and make the “correct” vote a kind of poll tax.

    …and I’m sure some law professor somewhere has written a careful review of just why the principles underlying NAACP v. Patterson do not apply here.

  2. Orin Kerr says:

    With all due respect to Chris, I think this argument is weak. It seems to me that whether the state publicly recognizes same-sex marriages is a public question, not a matter of a right to privacy. The argument that this is about a right to privacy derives from Chris’s view that being legally married will make him more comfortable not disclosing his sexual orientation to other people if someone asks him if he is married. As I understand it, Chris doesn’t feel comfortable saying “no”, so he prefers to give an explanation that likely reveals his sexual orientation. But I’m not sure what that might have to do with a constitutional right to privacy, which presumably must involve the state’s interference with private affairs rather than one’s comfort with various ways of responding to a question from a friend or colleague. (Oh, and for what it’s worth, I personally favor same-sex marriage as a policy matter.)

    Danielle, I gather you agree with Chris’s argument, given that you gave it such prominent attention. If you have a free second, can you explain what you think I’m missing?

  3. Danielle Citron says:

    Thanks to both of you for your comments. Orin, I definitely hear you on your constitutional point. But I thought it worthwhile to note Chris’s point about those testifying against gay marriage and their desire for privacy even though they have willingly entered the fray on a matter of public debate.

  4. David Bernstein says:

    How do you feel about NAACP v. Alabama? It strikes me that based on your reasoning, that case should have come out the other way.

  5. Danielle Citron says:

    It seems that NAACP v. Alabama has limited application given the public nature of the trial testimony whereas the state in NAACP v. Alabama demanded the list of members. But it is a point well taken.

  6. And let’s not let Mr. Wolff be the last word on what the SC did in it’s ruling:

    “The judge in the trial of Proposition 8 appeared to strike a balance, to avoid a circus, by allowing only delayed videotape access to coverage of the trial. The Supreme Court disagreed.”

    well, yeah, the Court disagreed; Mr. Wolff has it exactly backwards: as noted in the stay order, the District Court was allowing live audio and video streaming to various courts around the country; “the delayed videotape access” I’m guessing refers to the proposed internet broadcast which, at the time the SC issued the stay was not yet approved by the 9th Circuit’s CJ Kozinski.

    For all Mr. Wolff’s whining on the subject, let’s remember that it wasn’t the Supreme Court that decisively said no to Gay Marriage; instead that was the BLUE STATE of California. And I’m not sure what more he expects of Chief Justice Roberts than his refusal to block the DC law from going into effect. Why do so many of you think “ringing endorsements” from the Court is part of their job description?

    Side Note: He also writes:
    “To those of us who strongly favor equal marriage rights — and who have a personal stake in them — providing cover to those who would keep those rights from us feels a little like a drive-by assault: We had a glance at the people attacking us, but now they are gone, not to be identified.”

    Well, I can give identify one for him: Barack Obama

  7. Ken says:

    >>How do you feel about NAACP v. Alabama? It strikes me that based on your reasoning, that case should have come out the other way.>>

    I fail to see the analogy.

    If the NAACP had submitted petitions signed by some of its members seeking to overturn some specific law, or some specific action, and those petitions were submitted as part of a legal process, then it appears that the signers of the petition would have chosen to become participants in a public process, and would not be entitled to protection of anonymity in that process. OTOH, I can’t imagine how the identity of other members, who were NOT signers of the petitions, would lose their right to anonymity.

    In Ms. Citron’s post it seems to me the key words are in the third paragraph: >>active opponents of gay marriage, in California and Washington, have claimed that their right to privacy will be invaded if they are not given legal protection to be unseen and anonymous.>>

    “Active opponents,” it says, not “passive bystanders who happen to disagree.” “Active,” they were, in delivering testimony in a public trial. To my simple mind, the rule is pretty straightforward — if you play in the game, the fans get to see you from the bleachers. If you remain in the dugout, the fans get no visibility.

  8. David Bernstein says:

    Nonsense. The NAACP lobbied for civil rights. Being a member of that organization meant that you were supporting its civil rights campaign, certainly in general if not necessarily in every single particular, a VERY public issue. And the NAACP didn’t want to turn over its membership list for the same reason people want to be able to sign anti-gay marriage petitions for referenda anonymously–to avoid harassment and reprisals from those on the other side.

  9. Danielle Citron says:

    David,

    Might one differentiate a person’s signing of a petition as falling within NAACP v. Alabama’s protection of one’s identity in a group and testimony at a public trial as implicating Laird v. Tatum’s notion of indirect effects on First Amendment rights? In Laird, Army intelligence agents attended meetings that were open to the public and wrote field reports describing the meetings and identifying the participants. There, too, the government collected the information raising the risk of future harm of blacklisting (which the Court found too attenuated to provide standing). The Court in NAACP v. Alabama explained that the repressive effect of the compulsory disclosure of the names mattered even though they would arise from private parties because it was “the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.” Here, however, the press sought to broadcast videotaped trial testimony presented in front of an audience, which the court prevented.

    These differences perhaps don’t change David’s point about chilling and the real risk of retribution that such witnesses might face. I have long been worried about the privacy risks of civic engagement, see Fulfilling Government 2.0’s Promise with Robust Privacy Protections, 87 Geo. Wash. L. Rev. (forthcoming 2010), and so this discussion has been helpful to me in sorting out the significance of broadcasting the videotaped trial testimony and its First Amendment/free speech values concerns.

    Thanks.

  10. “Here, however, the press sought to broadcast videotaped trial testimony presented in front of an audience, which the court prevented.”

    I don’t think the press had anything to do with this – it was the District Court that was going to be doing the live streaming to other courtrooms around the country – not MSNBC. Finally, as noted before, at the time the stay was issued, CJ Kozinski had not yet authorized the internet broadcast of the videotaped proceedings.

    …and let’s also keep in mind that the stay didn’t exactly put a halt to a long tradition of broadcasting live District Court proceedings within the Ninth Circuit.

  11. That is a very helpful clarification, MC, and demonstrates the strength of David’s initial point.

  12. David Bernstein says:

    Danielle, I do think that there might be a difference between public trial testimony and other “associational” activity, but I didn’t read “Ken” as making that distinction.

  13. Jus' Sayin says:

    Uh, isn’t the difference between NAACP v. Alabama and this case that in NAACP, the Court protected the privacy of people fighting for civil rights….and in this case it’s the people that are AGAINST civil rights that are at issue? Why all this pointless flight from substance? (and really, wouldn’t Ely even recognize only Alabama as process protectin’?) Jus’ sayin’….