The President’s announcement of his support of gay marriage is the big story today – rightly.
But an interesting opinion from the Ohio Supreme Court on a public records issue could also provide some support for equal right issues. The case is State ex rel. Cincinnati Enquirer v. Craig, Slip Opinion No. 2012-Ohio-1999.
This case involved a public records request by the Cincinnati Enquirer for records related to a September 18, 2010 shootout at JD’s Honky Tonk bar in Cincinnati involving possible motorcycle gang members. The request sought the names of two police officers who had been shot, as well as their personnel files. The Cincinnati Police refused to provide the names and identifying information regarding the officers involved in the shootout because of fear that the officers would could be subjected to threats.
The Ohio Supreme Court agreed that the police did not need to turn over the information. Seems like a no-brainer, right? The interest in the safety of police officers and their families outweighs the interest of the newspaper in reporting this information.
What is interesting is the legal basis for the opinion. The Ohio Supreme Court said that the police officers had a constitutional right to privacy that protects against the release of private information when disclosure would create a substantial risk of serious bodily harm, and possibly even death, from a perceived likely threat.
Yes, you read that right. The Ohio Supreme Court has recognized that the constitution contains a right to privacy. This is not the first time that the phrase “constitutional right to privacy” has been used by the Ohio Supreme Court. In another public records case, for example, the Ohio Supreme Court held that this right to privacy protected against the disclosure of social security numbers.
Pause to consider the significance of the Ohio Supreme Court recognizing a right to privacy right on the heels of the President endorsing gay marriage. Noted gay marriage opponent Rick Santorum, for example, has stated that “This right to privacy that doesn’t exist in my opinion in the United States Constitution.” Harvard Law grad Mitt Romney has, at times like a January debate in New Hampshire, been characteristically equivocal about whether a right to privacy exists in the constitution.
The view that the Constitution does not contain a right to privacy is well established in conservative jurisprudence. Justice Scalia has been most out front on this issue. In a case about whether NASA background checks violated a right to privacy, Justice Scalia wrote, “Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea. But it is up to the people to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to ‘informational privacy’ does not exist.”
However, the view that the Constitution does not contain a right to privacy is distinctly on the wrong side of precedent. Starting in 1965 with Griswold, the Supreme Court recognized that the Constitution implicitly contains fundamental privacy guarantees. In Grsiwold, the Court invalidated a law prohibiting the sale and use of birth control. A few years later, in Loving the Court cited privacy rights to invalidate a Virginia law banning interracial marriage. Most famously, the right to privacy was essential to the decision in Roe v. Wade.
In regards to gay rights, the most important privacy decision is Lawrence. In that case, the Court invalidated Texas’ anti-sodomy laws. Justice Kennedy explained that the Constitutional right to privacy protects private and consensual intimate relations between people, including people of the same sex.
So . . . the Ohio Supreme Court’s recognition of a constitutional right to privacy is significant in that it puts the Ohio Supreme Court on the side of gay rights and the opposite side of Justice Scalia and Rick Santorum.
The big question is where does Mitt Romney really stand on this. When Romney inevitably states in Ohio that he opposes gay marriage, we hope that a local reporter soon puts the question to Romney of whether he disagrees with the Ohio Supreme Court that the Constitution contains a right to privacy.