Fornication, Cohabitation, and the Constitution

This Note begins with the indisputable assumption that laws prohibiting fornication and cohabitation are nowhere explioitly forbidden by the Constitution. If a right to engage in consensual adult heterosexual activity exists, it will most convincingly be inferred from the Court’s cases establishing a right of “privacy.” The Note first seeks to discover an adequate definition of privacy which might lead to a decision whether “privacy” encompasses the right .to fornicate or cohabit (a right which, for brevity’s sake, we will somewhat imprecisely call the right to, sexual privacy), but it finds no such definition. The Note therefore proceeds to investigate the Court’s usual test for fundamental rights, a test which calls for the Court to look to society’s traditions and collective conscience. But those two criteria, the Note argues, likewise tell us little about any right to sexual privacy. The definitional and historical approaches having failed, the Note must resort to inquiry by analogy. The Note thus proceeds to state and test several hypotheses by which the right to sexual privacy might be justified. The Note contends that what it calls the right to marital privacy, especially when regarded in the light of the other kinds of privacy, provides an adequate analogy for a right to sexual privacy.