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This chapter discusses some of the dramatic changes in the law relating to sexual behavior since the middle of the twentieth century. The ultimate cause, of course, was changing sexual mores. But at several points, the Supreme Court, by recognizing a constitutional right to privacy, acted in ways that gave these changing mores a solid foundation in law. This right of privacy was expanded over time to include contraception, abortion, and even same-sex behavior. Through these cases, the Court authorized marriage without sex (by prisoners, for example) and sex without marriage (between gay people, who were forbidden to marry). It also authorized marital sex without reproduction (through contraception and abortion) and reproduction without marriage (through rights of illegitimate children and unwed fathers).

Unwritten constitutional rights are well established in American law and are best exemplified by the “right of privacy.” The most famous privacy case is Roe v. Wade, although this unwritten right extends beyond abortion and includes contraception, marriage, interracial marriage, and divorce. This chapter explores what constitutionalism as democracy has to say about the unwritten right of privacy. It considers the so-called anti-totalitarian right of privacy that arose from Roe v. Wade and analyzes John Stuart Mill's classic work On Liberty, which elaborates the values of privacy and individuality, “European liberalism,” and a new form of despotism known as “social tyranny”.

In the aftermath of the Supreme Court case Bowers v. Hardwick, gay, lesbian, and bisexual plaintiffs have looked for alternatives to a right of privacy argument under the United States constitution. In addition to invoking state rights of privacy, federal First Amendment rights, and an arguable federal ‘right to participate equally in the political process’, they have turned to the suspect classifications branch of federal equal protection doctrine. (Hardwick limits use of the fundamental rights branch of that doctrine to fundamental rights other than the right of privacy, such as freedom of speech.) In arguing that sexual orientation is a ‘suspect’ or ‘quasi-suspect’ classification, they proposed an analogy between sexual orientation discrimination and race or sex discrimination, rather than between same-sex sexual activity and contraception or abortion. This chapter examines the use of immutable status and sex discrimination arguments and assesses the level of protection provided by the US constitution against sexual orientation discrimination.

Turning from the United States constitution to the European Convention on Human Rights, one is immediately confronted by the striking differences between the texts of the two instruments. These differences present both a major advantage and a major disadvantage for gays, lesbians, or bisexuals seeking to argue that a particular instance of sexual orientation discrimination violates the Convention. The advantage is the clear textual basis for ‘right of privacy’ arguments in the express guarantees of the ‘right to respect for... private and family life’ in Article 8, and the ‘right to marry and to found a family’ in Article 12. This chapter begins with a brief overview of the cases in which the European Court of Human Rights (the ‘Court’) and the European Commission of Human Rights (the ‘Commission’) have addressed issues of sexual orientation discrimination. It then considers the ways in which applicants under the Convention have used fundamental choice arguments, relying on Article 8 and other Articles.

This chapter examines how academic freedom is linked to the “living Constitution” debate even as the words “academic freedom” do not appear anywhere in the text of the U.S. Constitution. It first considers the notion that “academic freedom” should be treated as an “implied” First Amendment right by looking at the actual text of the First Amendment. It then discusses the debate over whether the Constitution is a living document by citing the right of privacy as implied in modern constitutional law. It also revisits the first mention of the phrase “academic freedom” in a Supreme Court case, Adler v. Board of Education of the City of New York (1952), which upheld New York's “Feinberg Law.” Finally, it explores the Supreme Court's unwillingness to formally recognize academic freedom as a distinct right due inpart to an egalitarian, anti-elitist impulse in constitutional law.

This chapter examines how academic freedom is linked to the “living Constitution” debate even as the words “academic freedom” do not appear anywhere in the text of the U.S. Constitution. It first considers the notion that “academic freedom” should be treated as an “implied” First Amendment right by looking at the actual text of the First Amendment. It then discusses the debate over whether the Constitution is a living document by citing the right of privacy as implied in modern constitutional law. It also revisits the first mention of the phrase “academic freedom” in a Supreme Court case, Adler v. Board of Education of the City of New York (1952), which upheld New York's “Feinberg Law.” Finally, it explores the Supreme Court's unwillingness to formally recognize academic freedom as a distinct right due inpart to an egalitarian, anti-elitist impulse in constitutional law.