'There's nothing more public than privacy': sodomy law judgments and the shifting boundaries of private space

Dr Mayur Suresh, SOAS

Where courts have struck down laws that criminalise same-sex conduct, they often do so on the ground that they violate a right to privacy. The US Supreme Court's Lawrence judgment and the Delhi High Court's Naz Foundation judgment both rely upon an idea of privacy to hold that the state had no legitimate interest in infringing the right of same-sex people in their intimate spaces. Both of these judgments have been criticised for domesticating the idea of liberty (Franke: 2004, Puri: 2016) given that, in these readings of the judgments, the idea of privacy is linked to the idea of physical space. Consequently, the Naz Foundation judgment has been criticised further for reflecting elite concerns over the private space - leaving those who have 'unnatural' sex in public to face the full force of the anti-sodomy law.

"In this presentation I seek to make a qualified defence of the idea of privacy in these judgements. I argue, first, that the these criticisms of sodomy law judgements misapprehend the nature of legal reasoning and the idea of precedent. By looking only teleologically at these judgments, the critics occlude the fact that the judgements not only creatively reimagine past precedent but also enables more creative futures for the law (Lefebvre: 2008). Secondly, the criticisms of the judgments look at private space as a physical category rather than a discursive one. Privacy, I argue, has moveable, shifting boundaries and that in the sodomy law judgments takes on an avatar that is productive in that situation. In conclusion, I argue that by linking the idea of a future of precedent to the idea of a moveable boundary of the private, that the idea of privacy in these judgments allows us to creatively reimagine the future of the right to privacy " - Dr Mayur Suresh; a lecturer in the School of Law, SOAS.