Nayan Shah’s 2011 book on race, sexuality, and the law in the North American West, Stranger Intimacy, deals with the complexities of a growing, migratory, contradictory population of the western United States and Canada during the first half of the twentieth century.
Shah challenges the traditional story of nuclear families relocating from one settled region to a new one, essentially “transplanting the settled society of two centuries of European colonization of the Americas from its eastern seaboard to its western expanses.”1 The reality, which is readily obvious with some thought about the Alaskan gold rush, timber harvesting, railroads, construction, and farming, involved far more transient, short-term laborers than grand settlement narrative typically incorporates — and these transient settlers often brought their own forms of gender norms, sexuality, domestic relations. Shah looks in particular at the experiences of South Asian migrants.
The settlement narrative does capture the governance vision of the dominant society, and taming transient settlers became a major focus of all levels and branches of government:
From police campaigns to incarcerate vagrants to implementing racial restrictions on immigration, voting, and property ownership, governing bodies isolated transients from civic association and democratic promises of equality.2
That the settled narrative has, in many cases, erased this history effectively continues “this pattern of marginalization.”3
Privacy and Sexuality in Sacramento
The federal government pushed the city of Sacramento to “clean up” the town after deciding to construct a military base nearby.4 The city responded with an increased police presence, a hallmark of the modern administrative state’s implementation of the long-standing “police-power doctrine” that justified government intervention to protect “the safety, health, morals and general welfare of the public.” 5 The result was an intensified “[p]olice surveillance of boardinghouses, brothels, pubs, and gambling houses” that effectively turned these areas — none of which were traditional domestic homes — into “semipublic” spaces.6
Kurnick & Singh
The case of Stanley Kurnick, 19, “of Austrian descent,” and Jamil Singh, a forty-year-old “Hindu” is illustrative. Two police officers followed them back to their boardinghouse. Officer Parker “looked through the keyhole” into their room and saw “the motions … of sexual intercourse.” The officers then broke down the door and arrested both men.7
Sodomy was of such implicit public interest that at the trial neither the prosecution nor the defense attorneys compelled the police officers to explain their interest, justify their search without a warrant, or disclose their source of information.
He adds that the “protection of public morality was sufficient justification for police intervention in the ‘private’ rooms of boardinghouses.”8
The Victorian “domesticity” division into public (male, work) and private (female, family) spheres was never as firm as its mythology even at its height in the late nineteenth century, but by 1918 it provided little to no protection to transient working men conducting “family” (that is, sexual) relations outside a traditional home.
Irrespective of the efforts of migrant males to remove their intimate activities from public view, the very transience of migrant life cast all their activities outside the boundaries of domestic privacy.9
In 1918 Sacramento, privacy for sexual relations provided protection only to heterosexual married couples:
The norms of public morality offered valued public the shield of domestic privacy to married couples, but thwarted a similar pursuit of privacy for migrant males.10
Contraception & Homosexuality
It is useful to compare Shahs’s analysis of 1918 Sacramento to more modern developments in the law of privacy.
Thus, consider Justice Douglas’s opinion almost fifty-years later in Griswold v. Connecticut, which protected access to contraception by married heterosexual couples under a right-to-privacy analysis:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.11
Seven years later, in Eisenstadt v. Baird, the Court extended the argument to single women — and, although maintaining the gendered focus on pregnancy, extended privacy protections beyond the bounds of the traditional marital bedroom, writing:
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.12
And in a case directly on point for Kurnick and Singh, the majority of the Supreme Court in Bowers v. Hardwick, ignored the issue of the domestic bedroom (perhaps because domesticity still required heterosexual marriage for the majority), despite the dissent’s argument to the contrary:
[O]ur prior cases thus establish that a State may not prohibit sodomy within “the sacred precincts of marital bedrooms,” Griswold, 381 U.S., at 485, or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U.S., at 453. In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code.13
In Bowers, rather like Kurnick and Singh’s case in 1918, “A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male.”14
In 2003, overturning Bowers, Lawrence v. Texas finally gave Kurnick and Singh constitutional protections for their now-private acts:
Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”15
- Nayan Shah, Stranger Intimacy (Berkeley: University of California Press, 2011), 1. ↩
- Ibid., 2. ↩
- Ibid. ↩
- Ibid., 74. ↩
- Lochner v. New York, 198 U.S. 45, 53 (1905). ↩
- Ibid. ↩
- Ibid. ↩
- Ibid., 75. ↩
- Ibid., 78. ↩
- Ibid. ↩
- Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965). ↩
- Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). ↩
- Bowers v. Hardwick, 478 U.S. 186, 218 (1986). ↩
- Lawrence v. Texas, 539 U.S. 558, 566 (2003). ↩
- Id., 578. Citing Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833, 847 (1992). ↩