Tag Archives: privacy

Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]


If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.


If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.


Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.


Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.

[1] North Carolina Senate Bill 518 Section 1.a.3


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Filed under Discrimination, Freedom of Speech, Assembly, and Association, The Right to Privacy

Is DNA more like GPS or like fingerprints?

On February 2nd, David Savage reported on an upcoming Supreme Court oral argument regarding the 4th Amendment search and seizure clause.[1]  The case deals with the standard procedure, practiced in 28 states and by the federal government, to take DNA samples of most individuals arrested for serious crimes.  The case before the Court is Maryland v. King.[2] King was arrested for rape, among other charges, in Maryland in 2009.  His DNA profile also matched a case from 2003 involving the rape of two pre-teens.  King was convicted of all three crimes.


King’s argument deals with probable cause.  He was arrested for one crime, but there was no evidence or suspicion that connected him to the earlier crime.  Therefore, the search and seizure of his DNA for the purposes of comparison to all other DNA is unconstitutional.  Commentary on the case links the question presented to the GPS case from last term, US v. Jones.  There the Court ruled that the placement of a GPS device on a suspect’s car was a search that violated the 4th amendment.  Now in Jones, Scalia says, “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.”[3]


It seems pretty clear that if a GPS device placed on a car requires probable cause and a valid warrant due to the infringement of privacy and the amount of details of life that can be gathered, certainly the taking of DNA evidence falls squarely within that precedent.  DNA provides more information than any other physical evidence from a person.  It provides medical information, it provides familial information, and it is unique to an individual.  Savage quotes a DNA law expert as saying, “If you are arrested for a drug crime, that doesn’t mean the police can walk into your house looking for evidence of other crimes.”[4]  Again, if Jones is the controlling precedent, then the privacy interests will clearly outweigh the interests of the state.


Yet, there are several precedents that would support the practice of taking DNA samples after arrest.  First, providing DNA evidence is no more invasive than fingerprinting and the Court noted in Hayes v. Florida[5] that “None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable case, is necessarily impermissible under the Fourth Amendment.”  And, fingerprint evidence can also be compared to outstanding cases and provide a match for the purposes of connecting one crime to another without suspicion.  We do not consider such comparisons of fingerprints to databases to be searches that run afoul of the constitution.


While DNA evidence does contain a great deal of information, the purpose for the collection and the use is the same as fingerprinting.  The scope of the search and the invasiveness of the seizure are quite similar.  In 1988, the Court also allowed the seizure and subsequent search of the curbside trash left by narcotics traffickers.  Despite Brennan’s protest from the dissent that our trash contains a great deal of personal information about our habits, our medical condition, and “intimate details of Greenwood’s private life…” , the Court ruled in CA v. Greenwood that you have no privacy expectation over your trash, once placed outside your house and curtilage for pickup.[6]


Pundits suggests that cases such as Jones and King will be harder for the justices as they deal with modern technology.  However, the justices can also eschew those arguments by making the analogy of DNA to fingerprints.  For political scientists, it will be informative to see which stimuli (privacy versus law & order) are hit during oral argument.  The framing of the case will likely determine the outcome.

[4] This, however, is not true.  The police can do some searching of home or the area around an arrestee under the many exceptions to the warrants rule.  Any evidence in plain view—evidence of other crimes—is fair game.  They can conduct a protective sweep, Maryland v. Buie, and again evidence in plain view is then admissible.


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Filed under Investigations and Evidence, The Right to Privacy

Religion, privacy, and locator chips: Extralegal factors and decision-making

National Public Radio reported on a new federal lawsuit out of Texas on Monday, December 17, 2012.[1]  On the 17th, a federal judge will hear a case dealing with an experimental program that places locator chips into student IDs.  The motivation for the school is monetary.  Attendance equals dollars and the chips provide more accurate counts of how many students are on school grounds.  For money strapped school districts, this is a way to squeeze a few more dollars out of the federal government.  The school district in Texas estimates gaining 1.7 million dollars out of a program that cost between 260,000 to 500,000, according to the two NPR stories.

However, some students and parents are challenging the use of the locator chip.  One argument is that it violates the freedom of religion.  One evangelical student believes that the chip is analogous to the ‘mark of the beast’ discussed in Revelations.  The chip program is to this family of evangelicals the same as the flag salute or school prayer is to Jehovah’s Witnesses or a school prayer was to Engel (see Minersville v. Gobitas (1940); West Virginia State Board of Education v. Barnette (1943); Engel v. Vitale (1962)).  Other parents and students challenge the chip program as a violation of the right to privacy.

A classroom discussion of this case last week would probably be a good case to discuss the intent of the first amendment and the balancing approach that the courts tend to use when dealing with schools and their role as parens patriae.  The school claims that the chips will be used for attendance and not monitoring students whereabouts on a constant basis.  However, the motivation for the program is monetary and that definitely ranks below the preferred freedoms.

However, while the motivation may have been monetary, in the wake of the tragedy in Newtown, CT, the school district may have a more compelling rationale for keeping the chips—the ability to locate each and every student during a crisis and after a crisis.  Even if the attorneys for the school district did not prepare to argue the safety interest, the facts of the case surely will bring these events to mind and solidify the school district’s interest when balanced against the other fundamental rights.  The safety interest, even more so than a policy to protect students from drugs and the drug culture (Morse v. Frederick (2007), again would be hard to ignore.  This case may, in the end, be an excellent example of extra-judicial factors beyond personal preferences influencing judicial decision-making.


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Filed under Religion, The Right to Privacy


Linda Merola and Cynthia Lum’s new article “Emerging Surveillance Technologies: Privacy and the case of license plate recognition (LPR) technology,” forthcoming in the November/December issue of Judicature[1], brings to mind the 1984 Rockwell song, “I always feel like someone is watching me.”  Merola and Lum examine LPR from the perspective of the community in this article, finding that many individuals are unaware of the technology or its use in their community.  More importantly, respondents to their survey note that the use of this technology would cause some reconsideration of both legal and illegal activities.  We may slow down on a highway knowing that as we pass a camera our license plate is recorded.

And Merola and Lum inform us that more than just our license plate number is recorded.  Usually four different data points are collected: the date, the time, the GPS location of the vehicle, and the license plate number.  These data can then be stored or erased.  Saved data can be “linked with vehicles registered owners via state motor vehicle databases and preserved, thereby creating records with substantial details about citizens’ daily movements…”

Clearly 4th amendment search and seizure questions are bound to arise with the greater use of this technology.  Unlike the GPS beeper at issue in U.S. v. Jones[2], there is no trespass to place a device on a vehicle.  It is simply a series of cameras, faster than the naked eye and by Jones there would be no constitutional violation.[3]  As Merola and Lum note, lower courts have been less amenable to a privacy claim when the information could be gathered by police observation.  License plates must be visible while on the road, and this settles the question.  The concurring opinions using the Katz standard, though, would likely find a violation of the reasonable expectation of privacy.

While the 4th amendment arguments are intriguing, another of their findings in this article suggest that LPR, and likely similar technologies, may chill 1st amendment rights.  Using LPR, police may be able to track movements through a given day.  What meetings are attended; what commercial establishments are visited; or what protests you choose to attend.  In this way, LPR and similar technologies go awry of Watchtower Bible & Tract Society of NY, Inc et al v. Village of Stratton.[4]  In Stratton, the Court nullified a village ordinance that required all canvassers to register with the village, and receive a permit.  Challenged by the Watchtower congregation of Jevovah’s Witnesses, the Court determined that the freedom of religion and freedom of speech included anonymous speech.  The registration ordinance required identification of the canvassers.

License Plate Recognition technology, and its similar counterparts like facial recognition software, could achieve the same ends as the registration ordinance or the McCarthy hearings.  Individuals can be “outed” in their beliefs, their habits and proclivities, and their associations without every saying a word.

[1] Volume 92 Number 3.

[3] Although we should remember that in Kyllo v. US 533 US 27 (2001), the Court disallowed a warrantless search via thermal imaging device because the device was not generally in public use and allowed peace officers to ‘see’ inside the home.  Of course, this search takes place in a home, not on the public roads in a vehicle.

[4] 536 US 150 (2002)

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Filed under Freedom of Speech, Assembly, and Association, Investigations and Evidence

Is it Federalism or an Undue Burden?

As several states, most notably Arizona pass more restrictive abortion laws there is a lot of ire from the pro-choice side about reduction of access and impediments placed in front of women seeking to end a pregnancy.  And certainly several of the last major challenges to abortion laws were all about which restrictions violated the Roe test and then the undue burden standard.  For example, according to the Guttmacher Institute, 39 states require a physician perform the procedure; 21 require a hospital stay; 17 mandate counseling; and 26 require waiting periods between counseling and the procedure. Interest groups expend significant amounts of money challenging and protecting these restrictions in court, in the state and federal legislatures, and in public opinion.  Judges then apply the undue burden test as outlined in Planned Parenthood of SE PA v. Casey505 US 833 (1992).

What I find interesting is the similarities between the restrictions enacted in these new laws and Oregon’s Death with Dignity Act.  Under this law[1] you cannot make use of it unless you have reached majority (18) and you are a resident of Oregon; you must have a diagnosis from two different physicians and they must agree that you have six months or less left of life.  Doctors must discuss all other options with the patient and request notification of the family of the request. The patient must make two oral requests for the medication and these requests must be at least 15 days apart.  Afterwards, the patient must make a written request with two witnesses.  These witnesses cannot be family, beneficiaries, or medical personnel that treat the patient.  The doctors must agree that the patient is capable of making appropriate medical decisions.  The patient must wait 48 hours (2 days) after the written request to receive the prescription.  The doctor must mail or personally deliver the prescription to the pharmacy.  Finally, the doctor must contact the state health and human services department.  In other words, the Death with Dignity Act creates similar if not more significant hurdles for those wishing to undergo the procedure than the new abortion laws coming out of some states.

In Gonzales v. Oregon, 546 U.S. 243 (2006), the Supreme Court ruled that the use of the Controlled Substances Act to prosecute doctors prescribing the lethal doses under the Death With Dignity Act is beyond the Attorney General’s powers.  In essence, it was a question of federalism and state’s rights won the day.  The states retain their police power over the health (and delivery of health care) within their borders.  Therefore, the Death with Dignity Act withstood the challenge and remains good law.

Again, the constitutional question in Gonzalez focused on federal versus state powers, but the substance of the act dealt with the right to die.  Often when we consider issues under the rubric of the ‘right to die’, the case is connected to the right to privacy (i.e. Cruzan v. Director, MO DOH 497 US 26 (1990) or WA v. Glucksberg 521 US 702 (1997)).  A question that remains is does the Death with Dignity Act pass the undue burden test?  If physician’s assisted suicide is covered under the umbrella of the right to privacy can the states (OR and WA) place these significant obstacles in front of the terminal patient?[2]

[2] Granted, if the Death with Dignity Act was deemed unconstitutional under this hypothetical it would suggest that there can be physician’s assisted suicide on demand.   But the application of the undue burden test to the strictures of the Death with Dignity Act seems like a good test of student understanding of the privacy material.

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Filed under Federalism, The Right to Privacy

What is an undue burden?

Recently in Texas[1], the Texas House of Representatives passed a bill that requires women to undergo a sonogram prior to an abortion.  This procedure must occur 1-3 days before the abortion.  After viewing the image and hearing an explanation of it, she then could have her procedure after waiting at least 24 hours.

At first blush, this bill seems like a fairly innocuous invasion of privacy rights similar to many of the regulations found constitutional in the Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) case, although it is doubtful these same regulations would have passed muster under the trimester framework.  Consideration of this bill reveals that while the majority did not overturn Roe v. Wade, 410 U.S. 113 (1973) in Casey, the newer precedent provides a great deal more leeway to the states to require various types of regulations including more stringent types of informed consent i.e. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, (1976). (Recall, this case upheld the “core” of Roe and adopted O’Connor’s undue burden test in lieu of Blackmun’s trimester framework.)   After all, a sonogram provides a clinician with concrete information about the current level of embryonic growth.  There is no guesswork required, so this procedure avoids the problem of speculation noted by Powell in Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416.  Again, prima facie, this requirement seems to place no undue burden on the woman, as an early sonogram can be performed in a doctor’s office or a clinic.

However, early sonograms are not the typical sonogram as noted by Representative Carol Alvarado during floor debate on the bill.[2]  An early ultrasound requires vaginal insertion of a medical probe.  The procedure is more invasive and uncomfortable, although not medically risky.  The larger question is whether this procedure would be an undue burden.  Since the undue burden test as written is vague, and the Court has rarely utilized the new standard, how do the lower courts apply it to this situation?  The context of this developing situation shows the wisdom of Scalia’s critique of the new standard, “I am certainly not in a good position to dispute that the Court has saved the “central holding” of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the “undue burden” test means.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Or if this bill passes, will it be challenged under a different variant of the right to privacy?  Is the state requiring a woman to undergo a medical procedure?  Does this violate the ancient right to refuse medical treatment?

Additionally, there is an issue of cost.  Who will foot the bill for the procedure?  If it is the woman or her insurance company, does this financial burden create an undue burden?  This question can easily seep into issues of federalism regarding the ACA and the role of Texas requiring a test that will affect a federal program.[3]


UPDATE: http://blogs.wsj.com/law/2011/10/26/court-blocks-ultrasound-requirement-in-nc-abortion-law/?mod=WSJBlog&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Feedfetcher

[2] Her exact words were this is not your typical “jelly on the belly”.

[3] In July of 2011, the law was challenged by the Center for Reproductive Rights.  The CRR takes a different tack here and challenges based upon First Amendment rights of speech between a doctor and a patient.  http://www.ama-assn.org/amednews/2011/07/18/gvsc0718.htm accessed on August 5, 2011.


Filed under The Right to Privacy