DOI: 10.60095/JJGJ6204">
 

Document Type

Article

Publication Date

2024

Abstract

The United States has entered a new constitutional era where substantive due process, under attack by the Supreme Court itself, can no longer be viewed as a solid foundation for the securing of personal privacy rights. In a post-Dobbs v. Jackson Women’s Health Organization world, the right to personal privacy, long understood to be protected under the Fifth and Fourteenth Amendments’ Due Process Clauses, is in need of a new doctrinal home. The evisceration of modern substantive due process in the context of abortion rights implicates and endangers LGBTQ+ rights and other personal privacy rights as well. As such, it is essential to identify alternative potential constitutional sources of protection for personal privacy and relationships.

This Article begins by describing various responses to Dobbs in the aftermath of the decision’s release. In the first year following the Supreme Court’s stripping away of substantive due process protections for abortion rights, scholars have proposed various ways to either preserve substantive due process or to establish alternative doctrinal homes for the protection of personal privacy rights. Such responses to Dobbs have often reflected concerns that even beyond reproductive rights, liberty protections for autonomy and privacy in our most personal relationships and life choices, including those of members of same-sex couples and other less traditionally protected relationships, are also in danger.

One such alternative doctrinal home for personal privacy is the freedom of intimate association. This Article describes the potential that the freedom of intimate association offers as a safe haven for the right to personal privacy, particularly for familial, romantic, and sexual intimate relationships of same-sex couples and others. The Article documents the evolution of the freedom of intimate association as a hybrid right largely grounded in the First Amendment, from older privacy cases to the first case explicitly naming the freedom of intimate association, Roberts v. United States Jaycees, and beyond. This Article explains how intimate association rights are distinct from, and provide greater constitutional protections than, the expressive associational rights that have been usurped by businesses seeking to deny public accommodations to LGBTQ+ people and using the First Amendment to do so, including in the 2023 free speech case, 303 Creative LLC v. Elenis.

That said, the freedom of intimate association’s evolution has included splintered interpretations and application over the years, including as to the appropriate role of tradition and history in determining the extent of protections for intimate relationships. This Article proposes a repositioning of tradition along with a reclaiming of intimacy itself to pave the path for future cases in which LGBTQ+ people and others may successfully claim the strong constitutional protections to which they are entitled for their personal relationships, through the long-neglected freedom of intimate association doctrine.

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