The right of married couples to use contraceptive devices, the right to have any sort of pornography in one’s own home, the right to protection against telephone tapping, the right of a woman to an abortion. Slowly, over the past decade, the Supreme Court has approved all those items in the ever-lengthening catalogue that makes up the constitutional right to privacy. Although it is not written into the specific language of the Constitution, the right was found by the Justices among the “emanations” from amendments concerning free association, free speech, self-incrimination and unreasonable search and seizure. Last week, however, the emanations weakened as the court announced two new decisions that seem to curtail rather than expand the individual citizen’s right to privacy.
BANK RECORDS. Worried about the financial legerdemain of white-collar criminals, the Secretary of the Treasury took advantage of the misnamed Bank Secrecy Act of 1970 to impose far reaching regulations. Effective in 1973, U.S. banks were required to keep copies of checks of $100 or more for five years; if the Government asked to see specific copies, the individual who wrote the checks would not necessarily be informed, though the bank could resist on its own and force the Government to get a subpoena. The regulations further specified that banks must automatically report to the Internal Revenue Service cash transactions of $10,000 or more. Individuals were also required to report transfers of $5,000 or more into or out of the country.
A group of California bankers and some depositors, joined by the American Civil Liberties Union, brought suit objecting to the bookkeeping costs involved and, more importantly, to what they saw as an invasion of their privacy. Justice William Douglas angrily agreed that the rules “saddled upon the banks of this nation an estimated bill of over $6 million a year to spy on their customers.” He added, “A checking account may well record a citizen’s activities, opinion and beliefs as fully as transcripts of his telephone conversations.”
But Justice William Rehnquist, speaking for the majority of six, concluded that the bookkeeping requirements were not too burdensome for the banks. He then went on to reject the privacy claims on a number of grounds—most of them narrow and technical—leaving the rules wholly untouched. Despite the decision, there is still some hope of fending off the regulations. New legal challenges may be drawn up without the technical imperfections to which Rehnquist objected. And Justice Lewis Powell, joined by Justice Harry Blackmun, filed a concurring opinion warning that if the regulations were to go much further—say by lowering the $10,000 reporting minimum—they both might find the privacy claims more compelling and switch their votes, turning the three-man minority into a majority.
BARRING COMMUNES. Belle Terre, L.I., is a well-to-do residential community that fills less than a square mile with 700 people in 220 homes. To preserve its character, it passed a regulation in 1970 restricting land use to one-family dwellings in which any number of related persons are allowed to live. But the zoning ordinance allows a maximum of two persons unrelated by blood, adoption or marriage to set up housekeeping. In effect, an unmarried couple could live together, but arrangements involving three or more roommates are barred. The Stony Brook campus of the State University of New York is near by, and the rules effectively banned commune-style setups and other off-campus menages.
The zone defense is a technique many communities have employed to prevent group summer rentals as well as the sort of living arrangements Belle Terre feared. So when a dentist and his wife rented their house to six students—five men and one woman—the resulting legal fight wound up in the Supreme Court. There seven Justices rejected claims that the zoning infringed upon privacy, as well as on the right to travel, associate freely and pursue an unorthodox lifestyle.
Surprisingly, it was Douglas who spoke for the majority. Obviously reflecting his conservationist leanings, he found it “reasonable, not arbitrary” to “lay out zones where family values, youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Only Dissenter Thurgood Marshall felt that such zoning transparently discriminates “on the basis of constitutionally protected choices of lifestyle.” If the village had really been worried about population density, Marshall pointed out, it could have limited the number of adults in every house, regardless of the presence or lack of familial relationships.
The two court decisions seemed to reflect the Burger Court’s tendency to be more sympathetic to governmental regulation than the Warren Court was. They also made clear that one man’s privacy may indeed be another man’s intrusion. The mayor of Belle Terre, for instance, celebrated the decision as a victory for privacy, the privacy of his town’s residents. When a governmental body must choose between such competing interests, the court is likely to allow it considerable latitude.
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