Privacy and Sexuality in a Society Divided Over Moral Culture

In this article, I develop an individuality-based conception of the right to privacy that can be used to protect the freedoms of sexual choice and intimate association. In doing so, I draw on John Stuart Mill's concept of individuality and his celebration of lifestyle experimentation. This formulation of the right to privacy is defended against a critic, Jed Rubenfeld, who uses Michel Foucault's critique of the repressive hypothesis to argue that an individuality-based conception of the right to privacy will inevitably impose standardized sexual identities on individuals. In response to Rubenfeld, I argue that the position that sexuality is central to self-definition does not depend on the assumption that speaking the truth about sex will set us free. The aim of the individuality-based conception of the right to privacy that I am advocating is not to fix identities, but to open up greater room for lifestyle experimentation. This article argues for the importance of the right to privacy in a society, such as ours, which is deeply divided over moral culture. Constitutional jurisprudence since 1965, with the significant exception of the Bowers v. Hardwick decision, has employed the right to privacy to extend the scope of sexual liberty 1 Supreme Court decisions on birth control and abortion have enhanced the individual's freedom to define the meaning and place of sexuality in her or his life. The potential value of the privacy cases is that they lay the groundwork for protecting the freedoms of sexual choice and intimate association.2 The moral culture debate is about whether we as a society need to extend our conception of liberty to include these freedoms. I will argue that we do. My purpose here is to define and develop an individuality-based conception of the right to privacy that can be used to protect the freedoms of sexual choice and intimate association. In doing so, I will draw on Mill's concept of individuality and his celebration of lifestyle experimentation in chapter three of On Liberty. This article is divided into three sections. The first lays out two conflicting approaches to sexuality and argues for the importance of the freedoms of sexual choice and intimate association. The second develops an individuality-based conception of the right to privacy The third defends this conception of the right to privacy against a critic, Jed Rubenfeld, who argues that an individuality-based conception of the right to privacy cannot make good on its promise to liberate individuals from arbitrary social constraints. Employing Michel Foucault's critique of the repressive hypothesis, Rubenfeld claims that despite their best intentions, supporters of the right to privacy are actually locking individuals into standardized identities. Although they speak the language of liberty, individuality-based right to privacy supporters are contributing to a disciplinary regime that produces sexuality in order to regulate individuals. I will argue against Rubenfeld that far from reifying identities, individuality-based conceptions of the right to privacy protect the freedom to experiment with self-definition. I will also argue that in a society deeply divided over moral culture, Rubenfeld's argument endangers the expansion of freedom for noncoercive and consensual forms of sexual conduct. Proponents of the freedoms of sexual choice and intimate association must convince the public that sex is a human activity worthy of legal protection. To argue, as Rubenfeld does, that sexuality is nothing but a ruse of power, undermines efforts to protect sexual freedom. 1. PRIVACY IN A DEEPLY DIVIDED SOCIETY Our society is currently engaged in a national political debate over moral culture. By moral culture I am referring to values, principles, and beliefs as well as cultural practices and institutions .3 Largely concerned with sexuality, procreation, gender norms, marriage, and family, the moral culture debate underlies and informs political battles over divorce, illegitimacy, abortion, sex education, and gay rights. …