02 July 2016


Noting the provocative (but for me unconvincing) 'Individual Sovereignty, Freer Sex and Diminished Privacy: How an Informed and Realistic Modern Sexual Morality Provides Salvation from Unjustified Shame' by Rory D. Bahadur in (2016) 8(2) Elon Law Review 245, which explores
the effect that increased accessibility to electronically stored information has had on Millennials’ viewpoints regarding sexuality and morality and concludes that the democratized mass dissemination of information has resulted in a radically diminished need for privacy. This controversial perspective is developed through an historical recounting of the means by which traditional morality developed and became a tool of sexist and racial oppression wielded by the dominant class through monopolistic control of the media and mass messaging. Exposure to modern sexual morality through the internet has revealed the fallacy of adherence by most individuals to these traditional norms. The result is an elimination of the feelings of shame felt by those who previously believed themselves to be deviant as they recognize that they are actually part of the norm. Privacy is the doctrine that allows us to control how we are perceived by others. If we keep private that which makes us ashamed, then the current, internet catalyzed, informed sexuality has reduced our need for privacy because it has reduced the things for which we experience shame. Contemporary sexuality, as reflected by Tinder for example, typifies these increasingly informed views of morality, sexuality, shame and ultimately privacy. The associated decrease in the need for privacy results from nothing less than an unprecedented, information based, reconceptualization of sex, sexuality, religion and morality. This altered conception of privacy is ultimately echoed in our jurisprudence, which reflects the shift away from an antiquated morality of higher purposes to a Constitutionally based, age of enlightenment influenced, morality of self-fulfillment.
Bahadur argues
Society is moving from a morality of higher purposes to a morality of self-fulfillment lacking any stigma associated with consensual, adult sexual relationships. This new morality is very different from the traditional mainstream morality or the Judeo-Christian-based morality of higher purposes. This is not a vacuous morality based on convenience; rather, it might actually be the very morality that our founding fathers envisioned.
The Constitutionality of the New Sexual Morality and the Resulting Massive Decrease in Privacy
The morality of self-fulfillment is not only an essential element of the Constitution, but it is in fact an indispensable one.  Kris McDaniel-Miccio argues the founding fathers deliberately included Age of Enlightenment moral principles, which were based on individual liberty and equality, in the Constitution.  These moral principles were derived from a period where the devolution of “arcane institutions—including the monarchy, the feudal system, and the primacy of the Roman Catholic Church,” was occurring.
During this time, massive political change resulted in the revolutions of France, England, and the United States. 
At the center of the social and political upheavals of the seventeenth and eighteenth centuries was the notion of the dignity and worth of the person because humans are not only sentient but rational beings capable of reason or rational thought. The ability to think, to reason, to interrogate ideas, was—in and of itself—worthy of approbation and protection. Thus, freedom of thought, expression, association, and religious belief were indelible concepts of the Enlightenment and of the creation of America as a nation-state. 
As a result, the governmental structure of the United States, which can be found in the Constitution, is actually founded on a deliberate balance between two principles: (1) the retention of individuality within the notion of a state; and (2) that “the authority to govern is not a result of conquest, divine right[,] or initiated by a religious hierarchy.”  The central tenets of American governance structure are therefore equality and liberty,  and these in turn are premised on a morality based on equality and individual dignity. 
In contrast to Judeo-Christian morality, each person is equal before the law, community, and state.  Because of this, no person should be subject to governance or laws based on “an accident of birth, inherited title or wealth or divine right.”  The essence of American morality and justice is “the dignity and worth of all individuals, mani- fest in the Fourteenth Amendment guarantee of liberty and equality. Thus, religion and ideology are baggage that should be left at the courthouse door.”  This normative shift in sexual morality is even reflected in Supreme Court jurisprudence. For example, in Lawrence v. Texas,  which overruled Bowers, the Court said,
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons
If we contrast this with the jurisprudential calculus of Bowers, which is based entirely on interpretations of Judeo-Christian sexual morality, the massive jurisprudential shift away from a morality of higher purposes to a morality of self-fulfillment becomes abundantly clear. This jurisprudential shift away from using religious beliefs as part of the legal structure results in a jurisprudence more in sync with the true morality of the American Constitution.
With this new morality, which Rubin describes as the morality of self-fulfillment based on the individual dignity, comes a decrease in shame associated with the things for which we previously felt shame. If shame is connected to privacy, then the resulting decrease in shame equates to decline in the need for privacy.
One commentator went so far as to suggest that the constitutional right to privacy actually reinforces the shame associated with any sexual behavior outside the scope of what the moral majority considers acceptable.  She argues that, if Lawrence can be interpreted as a repudiation of morals legislation, then we may be approaching the era where the right to privacy is no longer as necessary as the constitutional jurisprudence currently reflects and where nonconformity with Judeo-Christian moral constructs and their legislative products is no longer associated with shame. Ultimately, then, they would no longer need to be hidden or protected by a doctrine of privacy.
Extrapolating the jurisprudential shift, especially after Obergefell v. Hodges, it is not far-fetched to envision the Supreme Court declaring all morals legislation, sans an independent, actual, and significant empirical public health basis, invalid. For example, polygamy laws may need to be re-examined in the near future because polygamous relationships entered into between consenting adults appear to pose no threat to public health, but instead are unlawful simply because they do not comport with mainstream morality. In 1890, the Supreme Court justified the illegality of polygamous unions as follows, “polygamy is . . . contrary to the spirit of Christianity and of the civilization which Christianity has produced in the western world.” In that same year, the Court “justified the suppression of polygamy with reference to Christian values and ‘the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation.’”
Bahadur concludes
Traditional American morality is based on unrealistic, Judeo-Christian constructs, which perpetuate the subjugation of women and other forms of discrimination. The normative nature of this morality was reinforced because, before the Internet and ESI, those institutions and individuals (e.g., public officials seeking elected office and churches aimed at perpetuating religious oppression) who benefitted from its perpetuation traditionally had monopolistic control of the media. Therefore, this morality was largely accepted as normal human behavior, and anyone who did not conform or deviated from it experienced shame internally or externally if his or her deviations were made public. The Internet and ESI have destroyed this media monopoly, and anyone with access to a computer can now be considered a media outlet. The unprecedented availability and distribution of realistic information related to actual human behavior has shattered the reality of the previously prevalent, singular, sterilized, and manicured presentation of human behavior and morality.
More and more Millennials and subsequent generations are realizing that the shame they thought to be associated with desires and complex sexuality previously labeled deviant and immoral are actually normal facets of being human. As the absurdity of the shame dissipates in this Internet-dominated age, more people are comfortable publicizing this aspect of their lives. Thus, not only does the need for privacy decrease, but there also may actually be liberated public celebration on the Internet of realities previously considered private for fear of retribution.
Our jurisprudence also reflects this rapid decline in the influence of Judeo-Christian constructs as an appropriate basis of our morality. At the end of the day, I am left feeling that morality as it relates to sexuality is a combination of Sheryl Crow and John Stuart Mill on liberty. If it makes you happy, it can’t be that bad, as long as it does not cause hurt to another.