In the course of questioning Marcus and his friend, who was 17 at the time, police determined that they had been drinking and began arrest procedures. While frisking them, police found two condoms in the friend's pocket. One of the police officers accused the two young men of being "queers" who were parked there in order to have sex. While sex between same-sex partners was still illegal in some states in 1997, it was not illegal in Pennsylvania. But the officer lectured the young men about the Bible's condemnation of homosexuality, and he told Marcus that he knew his grandfather and that he was going to tell him that Marcus was gay.
Marcus feared that his grandfather would be repulsed by this allegation, and that he would throw the teenager out of the house. Distraught, he went home and wrote a note to his grandfather, saying that he did not want "everyone's life [to] be ruined by mine." He then shot himself in the head, ending his life.
Marcus's sexual orientation is not known. He never told anybody he was gay. But whether he was gay or not doesn't matter. He was horribly injured by the fact that somebody threatened to tell other people that he was gay and he didn't feel that there was anything he could do about it.
His mother filed a lawsuit against the police officers, and years later a federal appeals court ruled that the actions of the officer who made the threat violated rights guaranteed to every citizen under the US Constitution. According to a decision by a federal court, "matters of personal intimacy," including information about a person's sexual orientation, are "protected from threats of disclosure by the right to privacy."1
If he had known this, maybe Marcus could have used this information to silence the police officer's threats. Maybe not. But it's important to know that laws exist to discourage inappropriate behavior on the part of public officers. It's also important to understand that not every LGBT person in a situation similar to Marcus's would necessarily have the same constitutional protection. How could that be? A metaphor might help.
Singing the law
Think of law as music in its written form. Different performers interpret the written music in different ways. One performer might sing a song in a lively, upbeat manner, and another might render it in a slower, more solemn way. So it is with courts in their interpretation of the law.
In its written text, the US Constitution does not say anything explicitly about a "right to privacy." However, over the past several decades, the US Supreme Court has ruled that it does implicitly guarantee a right to privacy in a number of matters. For instance, in 1965, it ruled that "specific guarantees in the Bill of Rights have penumbras."2
The Bill of Rights, the first 10 amendments to the Constitution, includes such guarantees as the freedom of speech and religion, and the freedom of association. A "penumbra" is a transition zone between one distinct area and another — such as between light and dark. In this transition zone, things are neither light nor dark but somewhere in between. In legal matters, the term "penumbra" is often used to describe where implicit rights exist — they are not explicit in the text but they are not absent either.
