Fugate v. Phoenix Civil Service Board

WALLACE, Circuit Judge,

concurring:

I concur generally in the majority opinion. I agree that the officers’ extramarital relationships with the two prostitutes are not protected by the constitutional right of privacy. I further agree that the officers have failed to meet their legal burden under Kelley v. Johnson, 425 U.S. 238 , 96 S.Ct. 1440 , 47 L.Ed.2d 708 (1976), of showing the absence of a rational connection between the regulation under which they were disciplined and the promotion of public safety. I therefore join in affirming the district court’s order granting summary judgment in favor of the defendants.

I write separately to present what I believe is the proper approach to the officers’ constitutional right of privacy claims. I fully accept the majority’s delineation of two separate lines of Supreme Court privacy decisions. In addition, I believe that the differing histories of these two lines provide important guidance in addressing right of privacy claims.

I

The principle of privacy that protects the sanctity and integrity of marriage and the family is deeply rooted and has been carefully and fully elaborated, as the long line of cases cited by the majority amply demonstrates. Maj. op. at 738-39. Marriage is “ ‘the most important relation in life,’ ” and “ ‘the foundation of the family and of society, without which there would be neither civilization nor progress.’ ” Zablocki v. Redhail, 434 U.S. 374, 384 , 98 S.Ct. 673, 679 , 54 L.Ed.2d 618 (1978), quoting Maynard v. Hill, 125 U.S. 190, 205, 211 , 8 S.Ct. 723, 726, 729 , 31 L.Ed. 654 (1888). Similarly, “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through *743 the family that we inculcate and pass down many of our most cherished values, moral and cultural.” Moore v. City of East Cleveland, 431 U.S. 494, 503-04 , 97 S.Ct. 1932, 1937-38 , 52 L.Ed.2d 531 (1977) (plurality opinion) (footnotes omitted).

By contrast, the principle of privacy that protects the exercise of personal autonomy is of recent vintage and uncertain scope. As the majority properly points out, the Supreme Court has extended the personal autonomy principle of privacy to only two situations: the right of unmarried persons to use contraceptives in Eisenstadt v. Baird, 405 U.S. 438 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (1972), and Carey v. Population Services International, 431 U.S. 678 , 97 S.Ct. 2010 , 52 L.Ed.2d 675 (1977) (Carey), and the right to obtain abortions under certain circumstances in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 , 96 S.Ct. 2831 , 49 L.Ed.2d 788 (1976). This aspect of the right to privacy is clearly limited, and the Court has not chosen to extend it beyond those situations. In Carey , the Court was careful to limit its analysis to “ ‘an individual’s right to decide to prevent conception or terminate pregnancy,’ ” 431 U.S. at 688 n. 5, 97 S.Ct. at 2018 n. 5; it did not purport to protect every case that “ ‘implicates sexual freedom’ ... or ‘affect[s] adult sexual relations.’ ” Id. The plurality part of the opinion echoed this view, see id. at 694 n. 17, 97 S.Ct. at 2021 n. 17 (plurality opinion), as did Justice White in his concurrence. See id. at 702, 97 S.Ct. at 2025 (White, J., concurring). Consistent with this approach, the Court had earlier upheld without opinion a Virginia anti-sodomy statute. Doe v. Commonwealth’s Attorney for Richmond, 425 U.S. 901 , 96 S.Ct. 1489 , 47 L.Ed.2d 751 (1976) (Doe). While there is a dispute over whether this decision involved privacy or standing, compare Baker v. Wade, 769 F.2d 289, 292 (5th Cir.1985) (Doe was decided on privacy grounds), and Dronenburg v. Zech, 741 F.2d 1388, 1391-92 (D.C.Cir.1984) (Dronenburg I) (same), with Hardwick v. Bowers, 760 F.2d 1202, 1207-10 (11th Cir.) (Doe was limited to standing) (Hardwick), cert. granted, — U.S. —, 106 S.Ct. 342 , 88 L.Ed.2d 284 (1985), the Supreme Court has never extended the right of privacy to protect homosexual relations.

Thus, although an argument could be constructed from the contraceptive and abortion decisions to extend the right of privacy to consensual sexual activities, the Court has expressly refrained from this interpretation. See also Dronenburg I, 741 F.2d at 1395-98 (no constitutional right to engage in homosexual conduct); Andrade v. City of Phoenix, 692 F.2d 557, 563-65 (9th Cir.1982) (per curiam) (Wallace, J., concurring) (no constitutional right to engage in adultery); Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy — Balancing the Individual and Social Interests, 81 Mich.L.Rev. 463, 538, 542-44 (1983) (Supreme Court has not recognized a right to sexual privacy outside marriage).

II

In light of Supreme Court refusal to extend the personal autonomy principle of privacy, I believe that we should be careful in doing so. See Dronenburg v. Zech, 746 F.2d 1579, 1582-84 (D.C.Cir.1984) (Bork, J., concurring in denial of rehearing en banc). Recognizing the narrowness of our holding in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983) (Thorne), cert. denied, — U.S. —, 105 S.Ct. 380 , 83 L.Ed.2d 315 (1984), is critical. There is no indication that anyone other than Thorne and her paramour had knowledge of their extramarital relationship. The affair had been private. Furthermore, there was no reason to believe it would lose that closed cover of privacy since it had already terminated. The two participants had every reasonable expectation that their secret relationship would not be open to the eyes of any third person. Thus, this rule emerges from Thome: a person asserting a sexual privacy interest must demonstrate that an expectation of privacy with regard to the asserted interest was both subjectively held and objectively reasonable. In the absence of such a showing, the privacy interest is not protected, and the state need not demonstrate a compelling interest. See Paris Adult Theatre I v. Sla- *744 ton, 413 U.S. 49 , 66 & n. 13, 93 S.Ct. 2628 , 2640 & n. 13, 37 L.Ed.2d 446 (1973) (no reasonable expectation of privacy for public activity); National Gay Task Force v. Board of Education, 729 F.2d 1270, 1273 (10th Cir.1984) (Constitution permits regulation of homosexual conduct that “is indiscreet and. not practiced in private”), affirmed by equally divided court, — U.S. —, 105 S.Ct. 1858 , 84 L.Ed.2d 776 (1985); Lovisi v. Slayton, 539 F.2d 349, 351-52 (4th Cir.) (en banc) (couple had no reasonable expectation of privacy in intimate acts since they had invited onlooker into their bedroom), ce rt. denied, 429 U.S. 977 , 97 S.Ct. 485 , 50 L.Ed.2d 585 (1976); Swope v. Bratton, 541 F.Supp. 99, 109 (W.D.Ark.1982) (no protection if relationship is “open and notorious”). Cf. Katz v. United States, 389 U.S. 347, 351-52 , 88 S.Ct. 507, 511-12 , 19 L.Ed.2d 576 (1967) (fourth amendment protects only reasonable expectations of privacy).

In this case, the undisputed facts demonstrate that the sexual relationships were not purely private. Both officers saw their girlfriends while on duty, and both officers conducted their boyfriend-girlfriend relationships in public without attempts at concealment. The relationships were a matter of common knowledge within the police department and the county attorney’s office. These facts distinguish this case from Thorne , in which we were careful to point out that the affair was not a matter of public knowledge. See 726 F.2d at 471 .

Moreover, contrary to the officers’ assertions, a review of the record demonstrates that the officers were not punished for any particular sexual acts, but for their sexual relationships that existed over a long period of time. This is not a case in which the officers were punished for committing a proscribed sexual act in their homes, see Hardwick, 760 F.2d at 1212 ; see also Stanley v. Georgia, 394 U.S. 557, 564-68 , 89 S.Ct. 1243, 1247-50 , 22 L.Ed.2d 542 (1969) (private use of obscene materials in the home cannot be criminal in light of privacy interest). Thus, although the particular sexual acts between the officers and their girlfriends may have taken place in private, their relationships were carried on in public, and the sexual dimensions were not concealed. Under these circumstances, the officers have failed to demonstrate a reasonable expectation of privacy in their relationships by virtue of their open and notorious conduct. Thus, I would conclude that their conduct was not protected by the personal autonomy aspect of the constitutional right to privacy.