CHAPTER 4

THE RIGHT TO BE LEFT ALONE

Intuition suggests that the common-sense "right to privacy" constitutes the core of our notion of individual rights. In his famous dissent in Bowers v Hardwick (the Georgia sodomy law), Justice Blackmun characterized this as "the right to be left alone." It was this right that motivated my whole Do Ask, Do Tell book and proposal.

Yet in the Bill of Rights, there is no explicit right to privacy. Rather, it has been inferred from several of the amendments, especially the 9th Amendment (or penumbra clause) which leaves to the people and states rights not explicitly given to federal government. [In 1833, Judge Joseph Story, in writing about the 3rd, or "Quartering" Amendment, had noted that the the 3rd Amendment implies that a "man's home is his castle; and that this was the first time a Justice referred to a right to privacy.] In my Do Ask, Do Tell book, I articulated the suggestion that this right to privacy be explicitly spelled out in several specific areas. The collectivist sometimes looks at the right to privacy with askance, as if personal secrecy were a way to avoid accountability.

The "right to be left alone" seems a little more inclusive than "the right to privacy." The notion that government must not take criminal (and to some extent civil) actions against a person without following certain procedures and without requiring self-incrimination or double-jeopardy (as expressed in the 4th, 5th, and 6th Amendments) seems to start with the baseline assumption that government, at least, should leave citizens alone.

Now, the right to privacy really generates two separate areas of problems. First, there is the question, of greatest concern to me and most civil libertarians, of where to draw the "line in the sand" on government intrusions into the private lives and personal psychological choices of individuals. Some libertarians believe that this line cannot be drawn in any principled way without restricting the federal government, at least, to a very narrow range of powers explicitly enumerated in the Constitution (and these allegedly do not include levying income taxes or printing paper money). This problem will take most of this chapter to explain. But there is also the question of where employers, insurance companies, landlords, credit bureaus, banks, and other private entities should stop in gathering and disseminating information about individual workers or consumers? These questions evoke a need for government regulation.

In 1998, one issue seems to tower above all others in symbolizing the problem of government marching in upon the individual and knocking at the door: the plans by the Clinton administration to develop a national ID card, keyed to retinal and finger prints, medical histories, and the like. With a human being, a relatively small amount of information, visual or factual, expands out like a hologram to represent the self; the dangers are enormous.

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Modern privacy constitutional law seems to start with abortion and related reproductive issues. Abortion, after all, violates the right of the unborn child to live, given that the child is a person, and the time of the unborn's legal or moral claim to personhood seems to slide into the early weeks of pregnancy. But in 1973, in Roe v. Wade, the Supreme Court upheld the notion that a woman's right to privacy precluded any state intervention to save the unborn until the infant was viable; even then a woman's (as popularly stated) "right to choose" would prevail when her health or life was in danger. (Now, Roe [a "stage name"], after being "born again," turned against abortion later in her life.) Actually, the "right to privacy" had come up in earlier cases, such as Griswold v. Connecticut (1965) when the Court invoked privacy rights to strike down a ban on contraception (which in Connecticut had even applied to married couples). One interesting sidebar is that the Court referred even to the archaic 3rd Amendment (regarding the quartering of soldiers) in establishing an indirect right to privacy. In fact, abortion provides a good example of competing rights: life vs. privacy. They seem to need to be resolved at law.

No doubt, legality of abortion saved many women's lives from the "back alley" abortionists the coat hanger crowd that became the butt of 50's TV crime dramas. Inasmuch as abortion involves two legitimate competing rights (life for a questionably sentient child against a woman's privacy with her own body) and since reasonable people weigh these very differently, views on abortion change quickly and vary enormously within otherwise cohesive groups. There are Libertarians for Life, and pro-life gay and lesbian groups.

Certainly, for a gay man like me with no immediate interest in bearing children to judge the choices of women will inspire indignation. To me, the wave of early abortions does not constitute a holocaust! I feel that the essential outlines of Roe are correct. For the first trimester (least of all, during the day after conception!) when the unborn infant is of questionable sentience, the state should never be able to intervene in a woman's decision (except to require parental notification for minors and to cut off government tax-supported funds to pay for abortions against the moral objections of some taxpayers). Afterwards, the people of the various states should be able to enact their own moral choices, especially in preventing the brutality of partial-birth abortions, which amount to infanticides. What will be tough is deciding what to do about using test results, such as amniocentesis, that may show birth defects (as well as simple things like gender) after the first trimester.

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The natural way to stay on the subject of privacy is to discuss "gay rights" next, but actually it's useful to digress and talk about drug use first. I got my taste of it in the hospital as they gave me narcotics for surgery and fracture pain; and as I tripped out going to sleep, I could see, even from this experience, how someone with no other psychological life of his own might fall for this.

Why? Because drug use appears, on its face, to start out as "private" and "victimless" behavior, and but then sometimes develops terrible public consequences.

Many of the mind-altering drugs really do negate a user's sense of reality, to the point that he believes he can levitate or otherwise break laws of physics, or that he does not remember what he has done. Of course, this is dangerous to the public. But the harm of most drugs is subtler. There are medical consequences (even sudden death) and facilitation of disease transmission, but the real harm is that the person loses motivation, both in his interpersonal relations and in his own work and expression as an individual. He becomes lazy. It seems to make a moral difference what makes a brain's dopamine - the chemical messenger of pleasure - flow among axons.

Drugs vary widely in their potential for both direct and eventual harm. Most people who use marijuana use it sporadically and probably are harmed very little by it. Some young adults, especially those without a strong anchor in constructive activity, seem to get into serious trouble with it. Heavy use does cause brain damage. So should we prohibit for everyone an often rather innocuous substance because some vulnerable people cannot control their use of it? Cocaine is obviously much more dangerous, and can unpredictably cause fatal cardiac arrest even with the first use. Moralists like Oliver North like to point out that high-income cocaine purchasers are contributing to the devastation of inner cities with their consumption habits. Nicotine (despite the fact that tobacco, like other commodities, was practically legal tender in the early colonies) is medically one of our most damaging substances.

Libertarians point out that there was no drug problem early in the 20th century, before Prohibition and other substance abuse laws were enacted. So, what happens if we simply legalized all drugs today? Not tax and regulate them, but go laissez-faire.

In middle and poorer classes, drug use would increase at first. Some young lives would be lost or ruined. In fact, middle-class parents tend to support strong drug laws because, with the power of the state behind them, it is easier to convince their kids to just say no! (Or would illegality tempt some youths to taste the forbidden fruit of self-transcendence?)

Gradually, though, public pressure would reduce use, just as it has with tobacco. Employers would test much more than they do today, even in some cases for legal non-prescription drugs. This could become troublesome: people can conceivably test positive for marijuana from "second-hand smoke" at parties without actually using it! Eventually, drug use would be less than it is today. And the profit from trafficking would be gone. The household burglaries, along with the need for window bars and false security system alarms, would go down. The drug cartels would lose their power and influence.

One fact needs to be stated: some people with cancer or AIDS experience more relief from smoking marijuana than from any legally available prescription drug. For the federal government to oppose local and state initiatives to legalize cannabis for medical purposes (and to imprison at least one person publicly visible for growing cannabis for his own medical use) is despicable.

Other activities extend the question of government's interfering with "victimless" private behaviors in order to protect public order or protect people from themselves. Consider, for example, gambling (which ironically we permit on "sovereign" Indian lands and effectively discriminate against non-native Americans) and prostitution. Or perhaps, a police seizure in Georgia of devices sold for private masturbatory sexual stimulation. Again, people vary in their vulnerability to habit-forming behaviors. In all of these, a prohibitionist attitude invites the takeover by organized crime and corruption of established law enforcement.

We already have in our laws a concept of "age of consent," when a person is theoretically able to make his own choices and answer for them, regardless of the subtle influences of others. Note the inconsistencies, though: we charge juveniles as adults for some crimes, yet "protect" them with different ages for when adults may have sex with them, sell tobacco to them, or sell (or even give away) alcohol to them.

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It is becoming an article of faith among political progressives that homosexual orientation is largely immutable, benign as far as it relates to character; and therefore, since it has always generated discrimination, it deserves protection in civil rights law like any other controversial trait.

Although modern science provides some credibility to the immutability argument, the tautological observation remains: homosexuality still involves behaviors which, according to "free will," we can choose or reject. But, then, so does heterosexuality!

As we learned from the military gay ban debates, the sexual orientation "trait" swallows behavior; in practice the two are hard to separate. People infer the behavior that goes on from a person's statements and social preferences (and even by negation, such as by not dating the opposite sex or getting married). My adult life started out with a lesson in this: I was thrown out of college in 1961 for admitting "latent" homosexuality. For years, I would see homosexuality as something that could be kept private, out of debate, while the "real issues" that might affect standard of living and personal mobility, such as energy and the environment, were to be settled.

So why, until recently, did most mainline people hate "queers"? The honest answer was simple: gay people remind ordinary straight people (especially men) of the potential for their own sexual failures. It reminds us of the "defensive driving" paradox in maleness: to provide for and protect others, men are expected to behave fearlessly and even recklessly in "team" pursuits until they are tamed by women! For some people, homosexuality could possibly be barely tolerated if it remained at the fringes of society, with the drag queens and effeminate queers of large cities who would gratify virile returning soldiers and businessmen. But getting serious is something else. The attention, even platonic, of an infatuated gay man may remind a straight man of the vulnerability and expendability of his own temporary "beauty."

Then, there came the psychological "rationalizations" for homophobia. Homosexuals were regarded as freeloaders who didn't take on initiative for "normal" family responsibilities (never mind they weren't allowed to) or who got in the way of defending the country. Homosexuality, in men at least, was seen as a juvenile narcissism, an upward affiliation that loves only what one wants to "be like." Prohibitions against homosexual conduct (and preferences for married people) were not "discriminatory" if everyone enjoyed the same legal opportunity to relate to the opposite sex. (That is, there was no such thing as a homosexual, only people who crave for and commit homosexual acts "queers." If a homosexual lifestyle could really be made an impossibility, so the prohibitionist thinks, then ex-homosexuals would discover that normal marriage isn't so bad after all. ) On the other hand, homosexual attraction could provide a framework for exploring adult relationships for their own sakes, regardless of social approbation.

After Stonewall in 1969, the perspective and lot of gay people changed quickly. The urban gay life style, in which "masculine gays" could flourish, developed quickly while at the same time the view developed that a person's private sex life, even as they involved specific sex acts, were no one else's business but that person's. As a logical corollary came the idea that a person's choice of an intimate adult sexual partner was his to make and again no one else's business. It seemed to belong to "the right to privacy," like abortion and maybe interracial marriage. In 1967, laws against miscegenation (supposedly justified by the idea that mixed-race children are "burdened") had been struck down, although prohibitions of sexual activity between close relatives, justified by a belief that such unions promote genetic diseases, remained in effect, both legally and socially.

Privacy for homosexuals did not carry with the Supreme Court in Bowers v. Hardwick. The Court majority fell into the whirlpool of its own squeamishness and outright vindictiveness. "There is no fundamental right to engage in homosexual sodomy," the majority wrote. Privacy, as previously established in Roe, was not enough, because there was no nexus with family life, marriage, or procreation.

If the state can pass a moral judgment on a person's private motives before recognizing "fundamental rights" to out-of-sight private behaviors, then we need to re-debate this whole area of fundamental rights all over (perhaps, as I indicated in DADT, with the help of international covenants). Legally, the Court had said there was no substantive due process problem: sodomy laws are not inherently unfair to homosexually inclined people (since they still have the same fundamental rights for heterosexual sex and marriage), and the practical difficulty of regular enforcement did not mean that procedural due process would be compromised. The notion that sodomy laws are used as a justification for discrimination (based on "presumed" but unseen behaviors the "unapprehended felon" paradigm) seemed lost on the majority. What about equal protection, as demanded by the 14th Amendment? This would be difficult to establish unless Congress made gays a protected class, politically a most unlikely hope.

The reasonableness of extending privacy rights to personal adult sexual behavior would be gravely threatened during the 1980's by HIV and AIDS. Quickly (and especially during the two years or so before "HTLV-III" was identified and a test became available), the "radical right" articulated arguments that seem to contain the proverbial grains of truth. Male homosexual behavior indirectly threatened pubic health by incubating and amplifying certain diseases, largely because gay men (unlike heterosexuals) could easily switch roles in penetrative anal intercourse and because they operated without the taming influence of women. Such diseases would threaten the blood supply, cause enormous public health expense to be borne by taxpayers, and possibly mutate into more communicable diseases that could well threaten "general populations." Author Gabriel Rotello would call this "sexual ecology" a concept that expresses the notion that private consumptive behaviors, when occurring in combination, affect the environment (including the possibility of incubating new diseases) of the whole planet. In 1983, the state of Texas tried to upgrade sodomy to a felony and (in military style) ban gays from many occupations "of public trust and responsibility." For several years, we feared that government would mount an effort to stamp out homosexual behavior ("just say no!") the way it was doing with drugs (and does today with tobacco).

Things got better. Gays mounted tremendous volunteer efforts to take care of their own victims, and gradually changed their behaviors and at least became much less promiscuous (or perhaps hid behind the debatable effectiveness of condoms). Moreover, the gay community was able to convince the public with some arguments that were not totally intellectually honest. Examples: homosexuality is immutable; gays were infected before they knew there was an epidemic; gays were victims of Reagan administration indifference. The tone of these arguments publicly, at least tends to suggest AIDS victims (those infected through sex or i.v. drugs) need not account fully for their own acts. In fact, the bacchanal of sexual practices after Stonewall must have provided a perfect incubating ground for bizarre infections that otherwise might have remained largely confined to the Third World. Perhaps, according to some social theorists, gay male behavior was all the more reckless out of "political" desire to dethrone normative "heterosexist" culture. Even today, there is danger of a "second wave" among younger gay men, and the possibility that imperfectly followed medications with very promising drugs (the protease inhibitors) will encourage the mutation of the virus into more resistant and even conceivably more contagious forms. (In Minneapolis, the rate of infection for men having anal sex is about 1% a year). A vaccine is very far away; the management of HIV with some new drugs may become compromised by viral resistance which encourages even more dangerous strains to evolve.

But if we're going to crucify gay men for this tragedy, we should recognize that there is an enormous panoply of other behaviors that can jeopardize public health. Many of these involve the settlement of people into remote areas and coming into contact with bizarre organisms or viruses heretofore confined to wild animals.

By around 1990, things had really calmed down politically, and I settled into a particular attitude toward my own homosexuality that now befuddles me a bit. Having no family to support and able to spend my surplus earnings on myself, I considered myself a second-class citizen, and I felt proud of it!

The general public, in fact, had settled back into a live-and-let-live but don't-tell attitude towards private homosexual (and for that matter adulterous heterosexual) activity. People didn't want to know about it. Homosexuals, when they became prominent and publicly accomplished, could prove a difficult distraction. They seemed energized by narcissistic motives, to love what one wants to be like. They seemed, at least theoretically, to project a personal value system that, at its worst, could throw people at the mercy of their own resources, in a world (following the business climate with all the takeovers, mergers and downsizings) which seemed more individually competitive than ever before. They seemed to dissolve those psychological rites of passage that enable "normal" (heterosexual) men to first become and then remain sexually interested in lives which seemed psychologically constricted even if necessary for children and for adult support systems. Straight people, once they married and had kids, had to keep their psychological intimacies so carefully circumscribed. But heterosexuals more often than not broke out of their own mores anyway, as divorce rates rose over 50% in many cities.

On a certain level, debate over "gay rights" had become simpler. The main issue seemed to be this: shouldn't any adult be able to choose other adult sexual or intimate partners without interference from the outside world, particularly the state? The public, still tolerating an even higher divorce rate, seemed now ready to tolerate this, despite proclamations from the religious right (with the help of the Supreme Court) that there was no absolute "right to privacy."

My glib attitude would change almost overnight, as several gay soldiers and sailors came out of the closet and suddenly (although expectedly, in the wake of the Persian Gulf War) challenged the military's ban on homosexuals. I devoured Joe Steffan's book Honor Bound in one night in the fall of 1992, and within hours I knew I would become involved. Despite all the myths the notions of sissyhood, the possibilities of increased risk of AIDS the clear facts were these: we did have outstanding gay men and women serving in the military who, as individuals, obviously could have continued serving with some "openness" without disrupting their units and in many cases with the support of their peers. A gay man had almost graduated first in his Naval Academy class! Gays, as individuals, were often clearly as qualified to serve their country and perform the nation's most critical missions as anyone else. Gays did not have to be second-class citizens after all! I did not have to remain a second-class citizen, albeit a critical and snobbish outsider. And I remembered well that, during the Vietnam era, the military, despite its official but scattered no-gays regulations, had in practice often offered a more hospitable climate for gays than did much of civilian life.

I covered the convolutions of the "Don't Ask, Don't Tell" policy in excruciating detail in my DADT book. The government maintains that the presence of "known" gays in the forced intimacy of military life actually compromises the sexual privacy and modesty of heterosexual soldiers; yet for legal reasons the government resorted to an infinite-series style definition of "homosexual conduct" which it would equate to statements. (Some would argue that Nunn's "privacy" argument is a particularly pernicious misapplication of the "right to privacy.") One lesson from all of this is that the practical visible distinction between homosexual "tendencies" (or to put a positive spin, "identity") and homosexual acts is fragile indeed. Probably had the president's "Don't Pursue" been honored, the policy would have been acceptable. Gay soldiers would have been expected to remain silent around their buddies and to stay out of the media (including America Online!) certainly a compromise of free speech for unit cohesion. (Remember, declaring one's own homosexuality publicly in our world is a practical way to fight for one's rights by setting an example.) But the witch-hunts enabled by an obscure "guidelines" (or sovereign immunity) clause that allows commanders to discharge a soldier on the basis of illegally acquired information because "due process" protections are so limited in administrative proceedings grew steadily worse and eventually intolerable as the Navy actually used deception to learn a soldier's identity when he used the word "gay" in his America Online profile. (A similar government immunity exists for civilian security clearances, although the situation for civilians needing high level clearances is much better now than it was, say, even in 1990.) Even though the basic mechanism of "Don't Ask, Don't Tell" may well be constitutional (see Appendix 1), certainly these underhanded enforcement mechanisms may once be struck down. Finally, the mainstream public is starting to understand this (partly because of the gross sexual harassment, lesbian baiting, and witch-hunts even of straights for adultery that have erupted in the military during the 1990's).

In defending "Don't Ask, Don't Tell," the government (and Justice Department) has adamantly insisted that the policy is intended to affect uniformed servicemembers only (that does include the Public Health Service!) It is questionable whether this comports with reality. In 1996, Congress passed a "Solomon Amendment" which allows DOD to regulate (civilian) Department of Education grants in some circumstances. As a result, the military has been able to "blackmail" certain colleges and law schools into allowing military recruiters on campus, overriding non-discrimination policies of these institutions (and sometimes, as in Minnesota, state law). As a practical matter, businesses which deal with the military have to consider how their military customers, as individual decision-makers, will feel about a business's own employees and sales force.

The military ban, in fact, provides a good lesson in the dangers of government police powers. It affects relatively few people compared to other issues, but it shows how much prerogative government still has to invade private lives when "national security" is an issue. The military is, after all, the ultimate instrument of state police powers. The government can still legally conscript young men, find them out and hold them up for discrimination and even target them for outright hatred. The government can insult a whole class of people for their private sexual behavior by declaring that they are practically "morally" unfit to serve the nation's highest calling. What kind of example does this set for, say, the Boy Scouts?

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But, alas. gays and lesbians can not only make the personal commitments required by military service; they can and do make the family-style commitments too. All of this stuff about gay "selfishness" and disposable income is turning out to be a myth in many cases.

There has developed a wave of cases of gays and lesbians fighting for custody of their children from previous marriages or even to adopt, and proving themselves to be good parents. A few states have fought back by banning all gay adoptions; but in at least one state, New Jersey, a court has ruled that gay couples must have the same rights to adopt, as couples, as legally married couples.

Moreover, there has erupted a fierce debate over the legal recognition of gay marriage itself. The fight started with a court case in Hawaii, and quickly resulted (in 1996) with Congress passing its mean-spirited "Defense of Marriage Act."

On one level, the debate seems to center around the benefits society gives to married people, benefits to which unmarried people must contribute "for the common good." But the deeper purpose is to suggest that marriage life-long commitment to one other person is, in Andrew Sullivan's words both a basic right and also ultimately a moral obligation. A liberal society could reasonably maintain its enormous preferences for married people (and its usufruct on the sexuality of individuals) to the point that it expects lifetime "marriage" and a family-first attitude as a prerequisite for full citizenship, and it could include gays in on the deal Marriage, in fact, could be constructed as a private contract with legal obligations and therefore documented legal recognition. Private interests could grant privileges to married people as they chose, but in this context the state would have to afford the same right to contract to any competent adult couples.

But can marriage be a fundamental right if, as happens in practice, it implies unmarried people can be forced to help support those who are married? Or can we maintain that marriage helps create wealth and that it somewhat "pays for itself?"

The gay marriage, parenting and military service issues indeed call to question the intentions of government and public policy. Gay people see the preferences for heterosexual marriage as a public subsidy for one particular form of adult sexuality (penetrative but not always procreative heterosexual intercourse) or sexual partner choice that must come at the expense of those who don't practice it; it's hard for heterosexuals to see this! It's just plain intellectually dishonest to deny categorically to gays and lesbians the right to marry, become parents, maintain child custody, serve in the military, or perform other social obligations (remember, men who have had sex with other men since 1977 are still prohibited from giving blood [except for "research"], even when they test HIV negative) - and then turn around under the banner of political correctness and insist that gays be protected from "discrimination" in all other areas. The only way for a "liberal" to win a political argument like this is to first insist on gay immutability (a partially correct notion perhaps) and to insinuate gays (as a "class") were oppressed victims of an exploitative, "family-sheltered" bourgeoisie, which must be controlled by government regulation and outright redistribution. We'll talk about ENDA (the 1993 bill called "The Employment Non-Discrimination Act") in a later chapter. What we want to emphasize here is the vulnerability of gay people to conventional coalition politics. Prevailing in a conventional political battle emphasizes gay minority status and solidarity with other groups who (with good reason) define themselves as "oppressed." When you "win" a fight like this, you have to infringe upon the property rights of someone else, and you never know when someone will come back and infringe upon your rights for a different issue with different political stakes. Overuse of the minority-status argument also, as a "side effect," insinuates that "homosexual conduct" is somehow substandard behavior and, outside of suspect-class protection, admittedly is otherwise harmful to society as a whole.

Suppose liberal politics eventually really works, and gay people win the "fundamental rights" to marry and parent. This must sound very tempting to those who want to end discrimination but who also believe that child care is such a critical issue that strong public measures must be taken to help parents and children, even at expense to everyone else. With gay marriage, gay couples would enjoy exactly the same public benefits (such as adoption rights and pre-tax health insurance) as straight couples. (Polygamy, by contrast, could be tolerated but not be formally recognized.) Then the question is whether gay people will buy it and use it. The psychological independence and surplus, the possibility of intimacy (if not necessarily sexual) with many people of one's choosing as a form of self-expression of a life of exploring society's transition zones almost as aliens seems too good to pass up. On the other hand, children give gay couples, like traditional ones, something to do to maintain a relationship, and parenting can help many people establish the credibility they need to sell their own more "creative" efforts.

Again, the prospect of legally recognized gay marriage uplifts a whole panorama of issues. We say that psychologically healthful love implies an interest in the other person's well being. Sometimes "love" implies mere friendship - a willingness to let someone go free while bearing in mind one's assessment of the other person's best interest. Partnership, on the other hand, demands a "family first" dedication to the other person's needs something many people (gay or not) may not be comfortable with in our modern world. It implies a willingness to feel and perform sexually even when the other person (say he or she has become obese) does not reflect what you would like to see in yourself . Pretty heavy stuff. Relationships don't leave you alone! Imagine, if you will, that the left-leaning moralists really get their way and win gay marriage but also insist that no marriage be recognized when the two partners differ in age by more than 10 years, and that no one has more than one legally recognized marriage in a lifetime except for the death of a partner. The possibilities for statist social engineering and rationing of the human heart seem endless. . One wonders, if this cultural ukase came roaring back (one and only one intimate partner per whole lifetime), how many gays would really completely eschew heterosexuality. If gay marriage were legally recognized everywhere, at least, the prevalence of life-long gay marriages, especially among men, would test the immutability hypothesis.

There is a compelling case for saying that we need more constitutional protections to prohibit government from interfering with the most personal of all behaviors, the choice of an adult significant other! (Yes! Choice!) Sodomy laws and government preferences for heterosexual families are both involved. Perhaps with Romer, which says government cannot discriminate against any group, even one unrecognized by civil rights laws, because of mere animus, we can get rid of the homosexual-only sodomy laws in six states. Other than that, we need to get to work.

It might even be argued that the choice of an adult significant other is morally as fundamental as the practice of religion, and ought to be protected similarly in anti-discrimination law. Religion, after all, is behavior. But libertarianism would argue that this requires winning a collective "moral argument" through democratic process. Sexual choices may exist on a higher moral ground than, say, gambling or drug use. Arguable, perhaps, but one does not have a lot of confidence in winning an argument like that through counting votes. Are we going back to immutability?

Libertarianism, after all, maintains that government, with its military, marriage and (previously) security policies, has set the example which encourages discrimination against gays. Get rid of government discrimination and the big "bad" world will gradually eliminate discrimination out of aggregate self-interest. Of course, this requires consistent personal responsibility, such as a willingness of people to pay for part of their own medical treatment for diseases that have resulted from behavioral choices.

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The "right to privacy," to many people, also means the right to keep personal or medical information from employers, insurers, lenders, etc., and to prevent unauthorized disclosure or even inappropriate view-only access to their basic information (such as name, address and social security number) by the various private businesses as well as governments. Possibly, employers or insurers that have targeted customers have a responsibility to make sure that associates who view this information have no particular financial or grudge incentive to misuse it. These protections, of course, require positive law from the government to regulate the use of personal information by businesses. So sometimes the "right to privacy" increases government, rather than eliminates it.

Caroline Kennedy and Ellen Alderman covered some of the problems in detail in their book, The Right to Privacy (1995). Some points should be made. For example, employees generally do not have a "privacy" right protecting written or oral communications (such as with email) or other behavior that occurs on company property or uses company resources. In some circumstances, contractual or other agreements involving loyalty or conflict of interest may even regulate what workers say with their own resources; and certainly employers may rightfully regulate outside drug or alcohol use. (Employers may need medical information to enhance workplace safety, or to make sure that employees are not harmed by the more extreme contingent demands of a job. Demanding medical information to control health insurance costs seems much less defendable and in this context the whole area of privacy regarding HIV status [even if related to volitional behavior] comes into question.) Employers (and even volunteer service organizations!) may have good reason to be concerned about office romances (heterosexual or not) that interfere with reporting relationships and create the appearance of favoritism. This gets really sensitive, say, when universities vote on tenure for professors!

Misuse of personal information by businesses can expose consumers to such perils as identity theft by con artists. This is especially serious when one considers that "libertarianism" still holds people absolutely accountable for their own reputations (and the reputation of workers may become increasingly important in corporate liability for discrimination or invasion or privacy). Furthermore, as the Cato Institute points out, collection of information about consumers is important in enabling companies to develop the products and services consumers want, and therefore might even be perceived as a form of free speech.