The Right to Privacy and the Rule of Law
By One of the strangest arguments people make against the right to privacy established in Griswold v. Connecticut is that judicial intervention was unnecessary because a ban on contraception could not be enforced in most circumstances. But to state the obvious, it’s bizarre to use the fact that a statute could only be arbitrarily enforced as a point in a law’s favor. (Which is one reason why the even more common argument against Griswold is to say “penumbras and emanations nyuk nyuk nyuk” although Douglas’s phrase expresses a point so widely accepted as to be banal.)
Kate Sheppard’s post on Ken Cuccinelli’s attempt to restore Virginia’s unenforceable sodomy law provides an excellent illustration of why having largely unenforceable privacy-violating statutes lying around like a loaded weapon is a terrible idea. Cuccinelli’s desire to violate the rule of law by ignoring Lawrence v. Texas is predicated on his attempt to engage in another violation of the rule of law. Admittedly, the target in this case — a man in his late forties who engaged in consensual oral sex with young women aged 16 and 17 — is not particularly sympathetic. Nonetheless, what the man did in the case, however creepy, was not illegal under Viriginia law. If Virginia wants to raise its age of consent, or to modify it by limiting the definition of “consent” for women who are over the age of consent but not yet adults to consensual partners of similar age, it’s free to do so — Lawrence applies only to consenting adults.* But the essence of the rule of law is that actions cannot be made retroactively illegal even if an official of the state considers them immoral. The fact that sodomy statutes can be used to target people who offend state officials don’t like for an independent reasons is an excellent illustration of why Griswold and Lawrence were right.
*As a commenter notes, this actually appears to the case — the age of consent of 15 in Virginia seems to apply only to cases where the partner is under 18. At any rate, either the action was not illegal, or it should be prosecuted under the applicable statute, not under a general ban on “sodomy.” And he should not be charged with a felony if the appropriate law categories the crime as a misdemeanor.