As these case summaries illustrate, the State has great power to prohibit, burden, and penalize intimate relationships which exist outside the nuclear family. If you share your life with the “wrong” person(s), you may be ineligible for government aid programs, unable to live in certain neighborhoods, denied employment, or imprisoned. Entitlements and privileges, such as child visitation and child-custody agreements, support obligations, insurance benefits, tax advantages, subpoena power, intestate succession, spousal right of election, and proxy decision making in health care, are often awarded on the basis of your legal status with loved ones, not your commitment.
State control, potential or exercised, is present in all intimate associations. Yet if you are a lesbian or a gay man, the penalties which may be visited upon you based on your choice of a partner are much heavier than those likely to be incurred by participants in other kinds of non-marital relationships. In all but a few localities, it is legal to deny you employment or housing on the basis of your sexual orientation. The federal government excludes you from the Armed Forces and the FBI by statute. If you are a citizen of another country, you are prohibited from immigrating to the United States or becoming a naturalized citizen. You are not permitted to enjoy the symbolic bond and material benefit conferred by the status of marriage. Your sexual orientation may be the basis for a finding that you are not fit to have custody of your own children. And in twenty-five states and the District of Columbia, your lovemaking is an illegal act.
The degree to which the State is permitted to burden a citizen’s desire to share her life, mind, and heart with particular persons is of enormous consequence to the individuals involved and society as a whole. The formation of intimate relationships is central to human fulfillment and identity. Such relationships also play a critical structural role in the maintenance of democracy, by providing a barrier to the standardizing power of the State.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
A transgender student's expression of her gender identity, including through the use of gender consistent bathrooms, is First Amendment protected speech,
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.