The great peculiarity of the privacy cases is their predominant, though not exclusive, focus on sexuality — not ‘sex’ as such, of course, but sexuality in the broad sense of that term: the network of decisions and conduct relating to the conditions under which sex is permissible, the social institutions surrounding sexual relationships, and the procreative consequences of sex. Nothing in the privacy cases says that the doctrine must gravitate around sexuality. Nevertheless, it has.
— Jed Rubenfeld, The Right of Privacy1
I. Telling Stories
In December of 1890, the Harvard Law Review published an article, coauthored by Boston law firm partners Samuel Warren and Louis Brandeis, titled The Right to Privacy.2 The piece reflected on the harms caused by gossip and press intrusions into people’s private lives,3 and argued that judges could (and should) make use of existing legal authority to recognize a new tort for the invasion of individual privacy.4 One hundred and twenty-five years after its publication, The Right to Privacy enjoys a reputation as one of the most famous and influential law review articles ever written, having played a notable role in the Supreme Court’s development of a constitutional right to personal autonomy.5
Because The Right to Privacy has loomed so large in the American legal consciousness for so long (and, no doubt, because it has been invoked in Supreme Court decisions on some of the most controversial issues of the past century6), many scholars have displayed curiosity about the article’s backstory. Legal historian Stuart Banner summarizes the bulk of such scholarly musings thusly: “The traditional explanation of the origin of ‘The Right to Privacy’ emphasizes Warren’s irritation with sensationalist press coverage of his daughter’s wedding.”7 As Banner notes, this conventional account must be apocryphal, given that Warren’s daughter was only six years old when her father took the lead on the 1890 article.8
Despite the chronological impossibility of this story, scholars echoed it for decades (likely due, in part, to its appearance in another influential law review article on privacy, written by Dean William Prosser in 19609). Recently, however, more probing explanations of the article’s origin have begun to appear. Several scholars, for example, have explored the role of newly affordable and portable photographic technology in the years leading up to the article’s publication.10
Even so, “what truly provoked Warren, who is thought to be the moving force behind the article, has remained a mystery.”11 This statement by law and journalism scholar Amy Gajda in 2008 remains accurate today, despite Gajda’s careful survey of “news coverage that might explain the authors’ personal stake in the legal crusade they launched.”12 Gajda, for her part, concluded that “Samuel D. Warren bristled at the way the press reported on [the prominent political family into which he married] and that such coverage motivated the article.”13 Yet one cannot help but feel that important pieces of the puzzle are still missing.
While no single account can ever tell “the whole story,”14 there is an intriguing perspective on The Right to Privacy that has not yet been explored — even as it has practically begged for attention.15 Resisting the urge to speculate on the reasons for the scholarly literature’s silence on the particular narrative offered here,16 I proceed to weave an “origin story” of The Right to Privacy of special resonance for me, in this personal, cultural, and jurisprudential moment.17
II. About Sam
The leading biography of the Warren family of nineteenth-century Beacon Hill, Boston, explains that Samuel Warren, Jr., had always been the striver of the brood. While the “children,” as he called his four younger siblings — Henry (born 1854), Cornelia (born 1857), Edward (Ned) (born 1860), and Frederick (Fiske) (born 1862) — had each turned away from “high society” at a young age, Sam doggedly pursued membership in it.18 Indeed, he achieved a foothold in that society by marrying into the prominent Bayard family, whose “old money” and political power helped to remedy Sam’s insecurity about the Warrens’ less established position.19
Sam’s hunger for status served to fuel his academic and social success at Harvard College and Harvard Law School, his membership in and eventual leadership of important Boston clubs and cultural institutions, and, of course, his building of a successful law firm, Warren & Brandeis.20 Yet, as Amy Gajda’s survey of 1880s press coverage reveals, these achievements earned Sam a decidedly pale patch in the national spotlight. He was, it seems, perpetually in the background as his vivacious wife Mabel and the other Bayards glittered in the social and political limelight.21
The picture of Sam’s relationship with his siblings is altogether different.22 The Warren family, a reflection of “the maelstrom of historical forces in Boston at the end of the nineteenth century,” was a group with more than its share of secrets and lies.23 Sam’s social and professional ascent (while ultimately less dramatic than he might have hoped) increased the likelihood that the public would grow curious about the dirty laundry of these “barely compatible individualists — not easily compatible with other, milder people, let alone with each other.”24 In part because of this strife, Sam “remained a dutiful son” who was “sentimentally attached” to his siblings long after his marriage into the Bayard family.”25 That sense of duty only intensified after the family patriarch died in 1888;26 thereafter, Sam “took the position of head of the [Warrens] very seriously.”27 This aspect of Sam’s life, widely overlooked by legal scholars investigating the backstory of The Right to Privacy, is central to the narrative I offer below.
The family’s biographer notes that Sam’s “expression of [his] sense of responsibility was often unwelcome” among his siblings, even as they relied on him, to varying degrees, to handle their financial and legal affairs.28 While Sam did use his legal knowledge and fiduciary positions to exert a certain degree of control over his siblings, his overarching goal appears to have been the family’s wellbeing and the preservation of its good name.29 Indeed, Sam would continue “conscientiously representing [his siblings] in public matters” long after they had reached adulthood.30 Certain siblings, however, presented greater “challenges” than others.
III. About Ned
A great deal of Sam’s energy went into his relationship with his brother Ned. If it is indeed a blessing to “live in interesting times,” then Edward Perry Warren was dangerously blessed: Ned (eight years Sam’s junior) found himself entering adulthood and achieving an understanding of his same-sex attraction at the precise moment in Anglo-American history when scientists and the public first proclaimed and recognized the existence of men like Ned as a fixed and pathologized category of persons.31
A dominant “scientific” notion of homosexuality began to crystallize in the Anglo-American consciousness in the 1880s, and especially in the few years leading up to Sam’s writing of The Right to Privacy.32 Both the conceptualization of and terminology used to describe such “sexual deviants” (“pederasts,” “inverts,” etc.) sound foreign today,33 though perhaps not as foreign as the broader cultural logic ascendant during that time period. For many white, middle-class Americans of the period, for whom evolutionary theory offered seemingly endless explanatory power34 (including, and maybe especially, among the legal establishment35), same-sex intimacy was deeply linked with the notion of “degeneracy.” This new “degeneracy” meant something more than the moral deterioration previously associated with episodic sodomy. It was intended to evoke the literal “devolution” of the “race,” purportedly echoed and facilitated by the social “disorder” of the women’s rights movement, a rapidly rising divorce rate, an increase in prostitution and venereal disease in urban areas, the imagined effects of large-scale immigration on the moral and physical well-being of American society, and a host of other destabilizing phenomena.36
The American public living in the large cities on the East Coast was thus alerted to a supposedly imminent descent into “sexual anarchy” during the same decade in which Ned Warren graduated from Harvard, went on to attend Oxford (where he would more enthusiastically and overtly embrace his sexuality and come to identify as a devout and vocal Platonic “aesthete”), received and quickly began spending an enormous annual stipend dispensed after his father’s 1888 passing, and convened a group of like-minded gay men to live communally in a Sussex mansion dedicated to the appreciation of art and sensuality in the ancient Greek tradition.37
Sam, as a cosmopolitan and highly educated professional, might well have foreseen the coming “homosexual panic” before most others experienced it firsthand.38 Regardless, by the time Sam wrote The Right to Privacy, both the medical profession and the legal system had decisively pronounced judgment on sexual “deviants” like Ned39: “the new sexual types of the pederast and invert posed a serious sexual danger.”40 White, middle-class Anglo-American society was quickly learning to be hypervigilant for41 — and was increasingly inclined to use the legal system against42 — homosexual men in the very same years in which Ned was building an increasingly visible gay life for himself.
Sam took seriously his self-appointed role as the head of the family — and the politically savviest of the Warrens — to protect Ned, perhaps the most vulnerable of the Warren “children.” This undertaking likely struck Sam as especially necessary, and difficult, because Ned’s mannerisms, personal interactions, and intellectual and aesthetic interests would have marked him as a presumptive homosexual in the eyes of a growing portion of an increasingly suspicious Anglo-American public.
As Sam had witnessed for years, Ned never made much of an effort to present himself as “manly” in the way expected of mid-nineteenth-century Bostonian boys. Indeed, he had often “involuntarily [drawn] attention to himself” as gay.43 Ned’s sexual nonconformity would blossom, in the mid-1880s, into a multifaceted identity encapsulated in his self-identification as a “Uranian.”
The Uranian label entailed not only same-sex attraction, but a comprehensive philosophy endorsed (albeit largely in private) by many gay men in Europe and the United States in the late nineteenth century.44 First and foremost, the Uranian lifestyle meant (at least for Ned) a “homoeroticism [that] was an essential stimulus to everything of substance that he undertook.”45 Of great secondary importance, however, the Uranian outlook on life often went hand in hand with the tenets of “Aestheticism” — a philosophy directly in the American public eye (as newspaper coverage and satirical cartoons make clear) as early as 1882, when Oscar Wilde embarked on an epic speaking tour of the United States to champion the central Aesthetic tenet of “art for art’s sake.”46
As mainstream Anglo-American society would learn in the final decades of the century, many famous Aesthetes — and the artists they lauded, including John Keats, Lord Byron, and later, Lord Tennyson — shared an affinity for same-sex intimacy and admired its acceptance in the ancient world, especially Greece.47 (Such beliefs ran directly contrary to late-nineteenth-century notions of “progress”;48 they often represented a near-sacrilegious rejection of the widespread ascendance of science over art.49)
Ned had been, from a relatively young age, “an impassioned Hellenist who found in ancient Greece the philosophical moorings necessary to make sense of his own unconventional sexuality.”50 (Further, since his time at Harvard College, he had been drawn to the homoerotic poetry of Shelley, Wilde, and especially Swinburne.) Sam, of course, was acquainted with his brother’s interests and would have grown increasingly alarmed as popular associations between those interests and “homosexuality” emerged onto the cultural landscape in the 1880s. As early as 1881, for example, a popular Gilbert & Sullivan operetta called Patience linked the Classics, the Aesthetes, and same-sex passion: one character, a “Wildean aesthete” named Bunthorne, sang about thinly veiled same-sex tendencies in lyrics concerning “an attachment à la Plato.”51
The dangers for Ned would grow significantly over the course of the 1880s, even as — and perhaps especially because — he fled to England seeking the life he imagined. Historian Alison Hennegan recounts the most worrisome legal development of the time period for men engaged in same-sex intimacy:
The provisions of [England’s] 1885 Criminal Law Amendment Act, with its utter indifference to the public or private nature of sexual exchanges between men, removed at a stroke the traditional equation of private space with safe space. From [that point] on, homosexual domesticity [became] a source of danger. Shared lives leave physical traces — letters, diaries, pictures or photographs, gifts of books (or cigarette cases) with loving inscriptions — all these are perilous. They are the proof, the evidence (both these words now appropriately carrying heavy legal overtones) of a living relationship. Any of the above, left carelessly lying about, and seen by hostile eyes, imperil their owner, sender, or giver.52
In the years following the passage of this law, popularly known as the Labouchère Amendment, the risks for Ned would only grow.53 The two-year period between the death of the Warren family patriarch in 1888 and Sam’s publication of The Right to Privacy brought a quick succession of potentially dangerous developments. Newly flush, Ned began to use his newly available yearly stipend from the family trust54 to travel extensively55 — primarily to regions that had become strongly associated with homosexuality.56 Moreover, Ned threw his efforts into collecting Greek vases and similar antiquities, many featuring explicit homosexual imagery — and proceeded to initiate correspondence on the subject with the Boston Museum in July 1890.57 Probably most worrisome, from Sam’s perspective, was Ned’s 1889 discovery and April 1890 lease of a grand estate in Sussex, named Lewes House, which Ned converted into a sort of Uranian Neverland populated by Aesthetes and their guests.58
It is difficult to say exactly how much Sam knew about Ned’s plans for Lewes House, but it seems that the rest of the Warren family began to harbor (well-founded) suspicions about Ned’s same-sex attraction much earlier, probably during — if not before — the years he spent at Oxford in the mid-1880s, and certainly after Ned met his eventual long-time companion, John Marshall, while still in school there.59 Indeed, Ned repeatedly took Marshall to meet and spend time with the family, and it became clear fairly quickly that the two were something akin to what we might call “partners” today.60
In any event, Sam would certainly have known that Lewes House was a large property requiring maintenance — and thus vulnerable to the potentially prying eyes of domestic employees. Sam surely knew of Ned’s plans to fill the house with expensive Greek art; from the moment Ned began to draw on the family trust in 1888, there were recurring arguments between Sam and Ned over the latter’s expenditures on Greek art — much of which would likely have been deemed “obscene” by the average viewer.61 Perhaps most importantly, Sam had reason to believe that Ned himself might be careless about the public’s discovery of his sexuality62 and/or what went on at Lewes House63 — a concern that was increasingly warranted.64
In short, Sam would have understood, in the years leading up to his writing of The Right to Privacy, that Ned’s ostentatious, homosocial, upper-class life of leisure carried on among a colorful group of artists and other bachelors would have made Ned an attractive and easy target for anyone with a personal, political, or financial axe to grind.65 Indeed, in certain respects, Sam might have better understood the sociocultural landscape and political dynamics bearing on Ned’s well-being — even from across the Atlantic — than did his younger brother.66 What was a self-appointed guardian to do?67
IV. Prosecutions and Prevention
The law took note of the cultural developments discussed above. Indeed, Oscar Wilde’s 1895 prosecution for “gross indecency” made so dramatic an impression on the Anglo-American public in large part because it was the highest-profile legal intervention into same-sex relations of the nineteenth century. (Historian Alan Sinfield describes the conviction as a moment in which “the entire, vaguely disconcerting nexus of effeminacy, leisure, idleness, immorality, luxury, insouciance, decadence and aestheticism” was transformed into “a brilliantly precise image” in the Anglo-American cultural imagination.68) But while the Wilde trials were unprecedented in public impact,69 the law had certainly been deployed against gay men before.70
Of particular note for my narrative of The Right to Privacy, the late 1880s saw a dramatic rise in criminal prosecutions of “sexually deviant” men from “respectable” families. As historian Charles Upchurch notes, the Anglo-American homosexual “scandal trials of the late nineteenth century . . . marked a new way of politicizing sex between men” — facilitated by the interrelated developments of the “working class [beginning] to read newspapers en masse” and the emergence of “the ‘new journalism’ of the later nineteenth century [that] changed the rules for reporting sex between men.”71
Sam Warren, a worldly and well-informed professional involved in a wide range of public affairs, would have been well informed about the various homosexual scandals of the 1880s, particularly in light of Sam’s suspicions about Ned’s sexuality. These episodes would have been especially alarming for Sam after Ned’s return to Boston in 1887–1888, by which point the Aesthete’s Uranian outlook on life had become emphatic and all-encompassing.72
On the heels of Ned’s visit to Boston — during which any number of conversations about Ned’s private life might have occurred — Sam would learn of the so-called “Cleveland Street Scandal” of 1889–1890, a series of “sensational trials” concerning “upper-class men paying for sex with telegraph delivery boys.”73 This might well have been the final nudge necessary for Sam to decide he would take some sort of action.74 The status-obsessed man of the political and business world understood the growing potency of rumors about his brother75 — rumors that, if investigated or leveraged by the wrong person,76 could cause immeasurable harm not only to Ned, but to the entire Warren family.77
In reading The Right to Privacy against the backdrop sketched above, many of the article’s otherwise prosaic passages gain a new resonance. I urge the reader to carefully parse the complete text of the article and reach her own conclusions, even as I highlight and flesh out a handful of excerpts here:
[While public figures], in varying degrees, have renounced the right to live their lives screened from public observation[,] . . . [p]eculiarities of manner and person [of] the ordinary individual should be free from comment . . . .78
As noted above, most accounts of The Right to Privacy focus on Sam’s purported ire at press intrusions into the lives of the socially and politically prominent Bayards.79 Sam’s experience as a new member of that family after his 1882 marriage to Mabel Bayard might well have opened his eyes to the power of the press; that experience does not, however, correspond to any significant degree with the concerns expressed in the 1890 article about the privacy of those who — unlike the Bayards — had not “renounced the right to live their lives screened from public observation.”
The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity . . . .80
Ned had essentially retreated from the world by 1890, finding Boston (and cities in general) both distasteful and anxiety inducing. As anyone meeting him would immediate gather, his anxiety was one of the defining characteristics of his personality. The condition that chronically plagued his health from 1885 onward would soon be “medically diagnosed” as “neurasthenia,” a condition that was commonly linked, in the popular imagination, with sexual “deviance.”81
Such connections received a “scientific” imprimatur from the leading 1880s treatise on “sexual inverts,” Richard von Krafft-Ebing’s Psychopathia Sexualis.82 In the 1889 edition of Krafft-Ebing’s book, for instance, the author devotes special attention to a case study purportedly illustrating the “defective organization of the highest cerebral centres” of “an abnormal and defective person”83 who identified as an “aesthete” and reportedly wished to spend his session with Krafft-Ebing discussing painting and poetry.84 The man under examination was described as having a “shy, effeminate manner” and nervous disposition.85
To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.86
In this early passage in The Right to Privacy, Warren expresses concern about the exposure of “the details of sexual relations” — immediately after noting a court case that involved nothing of the sort. Rather, as Warren briefly recounts, there had been “a somewhat notorious case brought . . . in New York a few months ago [that had] directly involved the consideration of the right [of a photographer] of circulating portraits.”87 Yet, as Warren points out, the law concerning the rights and duties associated with commissioned photography was essentially settled.88
The New York case Warren cites, then, sticks out as something of a non sequitur to the rhetoric surrounding it. That rhetoric resonates to a far greater degree with a subject Sam could not realistically address in a public forum, for reasons of social convention: the atmosphere of widespread anxiety about sexual “deviants” in the late 1880s. As noted above, the late nineteenth century bore witness to several “infamous trials” of gay men, which invariably received a “sustained level” of public attention.89 Such attention was driven by news coverage “much more sensational and readily accessible”90 than that of even a few decades earlier, when newspapers had shown reluctance to “mix up the name of a highly respectable individual with so atrocious an accusation.”91 In the new cultural landscape, Sam correctly understood, Ned’s private life might, through a single slip-up or personal falling-out — something Sam might accurately have deemed a reasonable possibility — become very public, very quickly.
Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people [by drawing attention to] the misfortunes and frailties of our neighbors.92
In light of the risks identified above, Sam uses this passage as a clever way to turn the tables against those who might be inclined to expose Ned’s status as a sexual “invert,” recharacterizing the would-be invader of privacy as the figure who has inverted the natural state of things, by prioritizing private sexual practices over more important political matters. He further characterizes anyone seeking to expose such traits as, essentially, a bully, preying on the “misfortunes and frailties” of others — a line of rhetoric that could be found in the portion of medical discourse advocating for treatment, not criminal punishment, of homosexuals.
[N]umerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.”93
[But the] design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will.94
As mentioned above, the late nineteenth century saw an “increased frequency of application of the law” to same-sex intimacy; this was facilitated by changes to extortion law that “allow[ed] men to bring their social betters into court on their word alone.”95 Even more instrumental to this development was Labouchère’s “famous amendment” to English criminal law in 1885, expressly extending severe penalties for same-sex intimacy “in public or private,”96 and, further, eliminating the evidentiary requirement that a nonparticipating party to an unlawful same-sex encounter give testimony in order for the state to secure a conviction.97 Such legal “reform,” fueled by the newly emphatic social stigma associated with homosexuality, earned the 1885 Labouchère Amendment an ominous nickname: the “Blackmailer’s Charter.”98
Ned’s wealth and increasingly ostentatious displays of his ideology and sexuality made him an appealing target for potential blackmail, prosecution, or both. Such campaigns often rested on “intimate letters,” a recurring theme in the actual or barely averted gay scandals of the late nineteenth century.99 It often happened that incriminating materials fell into the wrong hands100 — and, to the extent one could not enjoin their use, could prove devastating to their authors.
This backdrop provides an intuitive way to make sense of Sam Warren’s near-obsessive focus in The Right to Privacy on the principle of “limited publication” — the right to prevent others from publishing material from letters to lists, whether or not independently protectable under intellectual property law.101 Persecution of homosexuals during this time period was especially likely where there was a “paper trail,” making Ned more vulnerable than the average nineteenth-century gay man because of his extensive, if largely unpublished, writing.102
Ned’s immediate audience was apparently “like-minded friends who shared his own aesthetic leanings and erotic tastes . . . .”103 (Indeed, confidential circulation of often-allusive works was a common practice among nineteenth-century gays and lesbians with literary — if only epistolary — inclinations.104) Yet Ned also wished for his poetry to be read, especially in the 1880s and 1890s, before his interests shifted markedly from the literary arts to the visual realm. During his period of productivity as a poet, from 1882 — when he was still living in Boston and attending Harvard College — to 1902, he would use the pseudonym “Arthur Lyon Raile” — a convention he observed for “any publications of a homoerotic character.”105 Of course, few writers of any era have managed to keep their noms de plume secret for long, especially when attached to high-profile and controversial works. Although Ned’s work would never achieve a substantial readership, Sam had good reason to be concerned about the possible use of Ned’s poetry — whether published or unpublished — against him. The Right to Privacy attempts to address this concern.
Sam’s idiosyncratic invocation of legal authority, especially on the issue of “limited publication,” makes his focus on this narrow issue all the more striking. In advancing the proposition, for example, that “[t]he common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others,”106 Sam cites the then-century-old case Millar v. Taylor107 — and the dissenting judge’s opinion therein, no less.108 His use of this hoary British case was of a piece with the general legal methodology of the argument, which relied almost exclusively on English case law and treatises (even on many issues where American case law and treatises provided ample guidance) along with several untranslated excerpts from French law.109
It is possible that this was merely part of Warren’s argumentative strategy (some scholars have argued that “the hierarchical nature of British society has resulted in greater respect for privacy not only in governmental affairs but in society at large”110) though such an argument makes for a somewhat disingenuous legal argument, obscuring the “fairly radical” character of Warren’s position under American law.111 That Sam’s argument was more tenuous than he suggested, and so reliant on English precedent even where American precedent existed, suggests (1) that he was willing to potentially compromise his professional credibility or reputation for careful legal analysis, only bolstering the likelihood that he had a personal stake in the matter to counterbalance these risks; and/or (2) that he was writing, at least in part, with an eye to the country that had become Ned’s primary home and potential location of victimization (and where, just as importantly, ideas espoused by the intellectuals and professionals of Boston, perhaps to the exclusion of other American cities, did wield some influence on the direction of elite thinking112).
The allowance of [certain defamation-related] damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent’s person . . . .113
I conclude my quoting of The Right to Privacy with this passage — though I might include many others that will likely jump out at the interested reader, equipped with knowledge about Ned — because it represents one of the relatively few instances of what might be called distancing language (“would seem to be a recognition”) in Warren’s otherwise forceful and often-unqualified rhetoric. Whereas, throughout most of the article, Warren is unabashedly direct in stating his views, about the importance of privacy and the harms arising from its violation, he suddenly becomes guarded when the subject of injury to familial honor arises. This was perhaps one of his few attempts to depersonalize an article in which, for a reader familiar with Ned’s idiosyncrasies, much of the rhetoric employed by Sam to make his argument might seem quite painfully “on the nose.”
One possibility is that Sam’s awkward specificity represented mere clumsiness and/or a lack of objectivity in a piece apparently never edited by Brandeis (who Sam himself had long acknowledged was the “brains” of the team) because of the future Justice’s general indifference to the article. Alternatively, the article’s superficially artless particularity might have been a savvy, strategic shot across the bow to the many Bostonians already in the know, to varying degrees, about Ned.114 (Indeed, one wonders if Sam’s comment, early in the article, that “no generous impulse can survive under [gossip’s] blighting influence”115 was a warning to Bostonians that the Warren family’s philanthropic pursuits throughout the region might quickly cease if any of its members, especially its least public and most vulnerable, were targeted.) Or perhaps Sam was trying to split the difference, using examples and language that would evoke Ned for those already familiar with his proclivities — while seizing on popular sentiment, recent litigation, and purported coauthorship (“It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual . . . .”116) so that the argument would seem both generalizable and compelling to readers who had no particular familiarity with the Warren family.
Of course, even if fraternal loyalty did factor into Sam’s decision to pursue the project of The Right to Privacy, he naturally had his own, more selfish interests in helping Ned to avoid public “disgrace.” The consequences of having a family member exposed as a “sodomite” extended beyond shame, in the narrow sense some might (sadly) still be able to relate to today.117 Such a revelation might suggest that an entire family’s blood was “tainted” — at least according to Psychopathia Sexualis, which declared: “In almost all cases where an examination of the physical and mental peculiarities of the ancestors and blood relations has been possible, neuroses, psychoses, degenerative signs etc have been found in the families.”118 Perhaps for this reason, one scholar has written: “at any moment in the 19th century someone, somewhere, was burning the papers of a homosexual relative.”119
To be sure, nothing I write here forecloses the possibility that Sam’s experiences as a new member of the Warren-Bayard family informed or even partly motivated his writing of The Right to Privacy. Indeed, to the extent that homosexuality was widely described as a “hereditary taint,”120 it might well have damaged the reputation of the politically prominent Warren-Bayard family — and cast a shadow of suspicion on Sam’s children with Mabel — if Ned’s “secret” had gotten out.
V. Epilogue
If my account of Sam’s motivations for writing The Right to Privacy is plausible, then the article would seem to acquire a new and special resonance on its 125th anniversary. The rhetoric and reasoning in the piece can be traced,121 link by link, albeit with important modifications along the way, to Supreme Court decisions that cumulatively established a constitutional right to personal autonomy.122 Initially, the article’s influence was felt primarily in state court decisions concerning invasions of privacy by private parties; however, it would secure a place in constitutional jurisprudence when, in 1928, then-Justice Brandeis penned a powerful dissent echoing key principles of The Right to Privacy in the Fourth Amendment case of Olmstead v. United States.123 Brandeis’s reasoning in Olmstead, along with the article itself, would be invoked by the Supreme Court in important criminal procedure decisions over the next few decades.124 But the notion of privacy would not remain confined to the realm of government investigations.
Starting in the 1960s — perhaps spurred by the acute threat McCarthyism had posed to individual liberty — academic and judicial rhetoric embraced an increasingly robust notion of “the right to privacy.” The principle made the decisive leap beyond criminal procedure in the 1965 case of Griswold v. Connecticut,125 where a majority of the Supreme Court (whose Justices cited Olmstead and even The Right to Privacy, specifically126) found a constitutional right to contraception for married couples in the penumbras of various constitutional amendments touching on privacy concerns.127 The expansive understanding of “privacy” articulated in Griswold would be invoked and extended to unmarried individuals seeking to invalidate a governmental ban on contraception, in Eisenstadt v. Baird128 (in a majority decision grounded in important part on the Equal Protection Clause129). The Griswold ruling and its progeny would later be richly (if controversially) interpreted through the lens of liberty-as-self-determination, by a three-Justice plurality whose decision carried the day in Planned Parenthood of Southeastern Pennsylvania v. Casey.130 Core passages and principles from those cases would soon take center stage in the landmark gay-rights decisions of Lawrence v. Texas,131 United States v. Windsor,132 and, in the 125th year after the publication of The Right to Privacy, Obergefell v. Hodges,133 where the Supreme Court recognized a fundamental constitutional right to marry someone of the same sex.134
It is here that the story I have told about two brothers, each traditionally relegated to the “footnotes” of history,135 takes on special resonance. For a desire on Sam’s part to protect his gay brother, if indeed a motivating factor in the authorship of The Right to Privacy, would mean that a piece published in an effort to preserve the autonomy of one gay man was, in a circuitous but nonetheless concrete way, a 125-year-old precursor of a Supreme Court ruling securing the protection of a crucial right for every gay American.
There are many things about the United States in the twenty-first century that Ned would surely dislike — some with good reason, some due to aspects of Ned’s own worldview that appear as distastefully antiquated as the widespread prejudice Ned sought to escape by moving abroad and creating a gay community at Lewes House. But one hopes that, if Ned were alive today, in this post-Obergefell world, he would at least entertain the possibility of building a life for himself in his home country. He would still face prejudice, to be sure, but he would also see the law’s respect for the most important relationship in his life. And, remarkably, that respect might well be, in some nonquantifiable but eminently meaningful way, due to his brother’s article — an article that, in the poetic mirror of historical imagination, can be read and appreciated as a piece about Ned.
* Acting Assistant Professor, NYU School of Law; Assistant Professor, University of Hawai’i William S. Richardson School of Law (beginning August 2016). © 2016 Charles E. Colman. This piece is for Francis.