Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the penumbras of the Constitution, public employees should be protected in their legal sexual conduct. While several states still criminalize adultery and thereby make certain off-duty sexual activity illegal, this Note also argues that anti-adultery statutes are unconstitutional in the same way the Supreme Court found anti-sodomy statutes unconstitutional in Lawrence v. Texas. Ultimately, the United States Supreme Court should extend its logic from Lawrence and find that public employees cannot be disciplined for their legal, off-duty sexual activity.
Susan A. Jacobsen,
Private Affairs: Public Employees and the Right to Sexual Privacy,
68 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol68/iss4/6