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June 01, 2006
Creating Rights Out of Whole Cloth
Where do the abortion issue and teacher-student sex intersect? At the "Constitutional right" to privacy.
A former high school teacher facing sexual assault charges says his arrest on suspicion of having sexual relations with a student violates a fundamental right guaranteed by both the state and federal constitutions.
Matthew Glasser, a former music teacher at Northwest Catholic High School, was arrested last year under a provision of the state's criminal code that makes having sex with students a crime, even if the student has reached 16 - the age of consent.
But in a motion filed in Superior Court in Hartford, Glasser claims the statute infringes on his constitutional right to privacy, which, he argues, includes engaging in a sexual relationship with another consenting adult. Glasser was 29 when the relationship is alleged to have taken place; the girl was 16.
"We believe that the statute infringes on a fundamental right to sexual privacy and therefore does not hold up under constitutional scrutiny," said Jeremy Donnelly, one of Glasser's lawyers.
The "Constitutional right" to an abortion was based on the idea that the Constitution itself, in its "emanations" and "penumbras", conferred a general right to privacy. Now, that right isn't specifically enumerated, so there's no way to legally explain what it really means. It meant whatever Justice Douglas said it did then, and it'll mean whatever a judge today says it does now. If we need a right to privacy (and I think we probably do these days) then either that should be written specifically into the Constitution or privacy issues should be dealt with at the local level. But when you create a right out of whole cloth, there's no way to limit it.
Which brings us to Mr. Glasser, who says that this emanation encompasses him and his 16-year-old, legal adult, student. Were it not for those pesky sexual harassment laws that prevent him from using his position of authority, this wouldn't be an issue.
I'm don't intend to speak on age-of-consent laws specifically, although 16 does seem to be quite young for someone to make a rational sexual decision. But I'm really hoping that folks who have been proponents of this "Constitutional right" to privacy will see how playing fast and loose with what is and isn't Constitutional is affecting society and what doors it is opening that ought to be kept shut.
Being a "strict Constitutionalist" is something of an insult liberals put on conservative judges and justices. When you consider cases like this, however, it ought to make more sense why our judiciary ought to be just that. The "Constitutional right" to privacy is not concrete; it is a a vapor. The penumbras of that vapor will continue to emanate out unless more strict Constitutionalists insist on text that has been properly ratified by the States.
Posted by Doug at June 1, 2006 01:53 PM