Constitutional Privacy and Homosexual Love


This article addresses the constitutional right to privacy and its application to homosexual love. The argument presented is discussed at much greater length in a forthcoming book, Toleration and the Constitution. In the book, I argue that the principle of toleration, embodied in the religion clauses of the first amendment, underlies both the constitutional guarantees of freedom of speech and press in the first amendment and the guarantees of freedom of action associated with the constitutional right to privacy. In this article, I excerpt and summarize a fragment of this larger analytical structure. I will first examine why the constitutional right to privacy is a natural and principled elaboration of our constitutional traditions, and then discuss why it properly applies to consensual homosexuality.’

Suggested Reading

With the publication of Professor Donald G. Casswell's monumental work Lesbians, Gay Men, and Canadian Law in November, 1996, the Canadian discussion of the legal rights of lesbians and gay men has reached a level of sophistication commensurate with its