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The Gay Rights Question in Contemporary American Law$
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Andrew Koppelman

Print publication date: 2002

Print ISBN-13: 9780226451008

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226451039.001.0001

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The Right to Privacy?

The Right to Privacy?

(p.35) Chapter Two The Right to Privacy?
The Gay Rights Question in Contemporary American Law
University of Chicago Press

The privacy question has tended to dominate gay rights discussions because the criminalization of homosexual activity has been the most important legal disadvantage that gays have faced and the keystone of a pattern of other disadvantages. The sodomy statutes brand all gays as criminals and so legitimize discrimination against them. These statutes' centrality has been reinforced by the Hardwick decision, which focused solely on the privacy issue and which has been most students' introduction to issues of gay rights in the law. Privacy, however, is a weak basis for gay rights claims. It has no textual basis. It cannot be deduced from earlier privacy decisions. It inappropriately requires judges to decide what is important in life. It excessively disables the state from legislating on the basis of morality. Moreover, privacy is a poor characterization of what is at stake in the gay rights debate, which turns primarily on public status rather than private conduct.

Keywords:   right to privacy, gay rights, criminalization, homosexual activity, discrimination, morality

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