As part of my course work at Creighton University, here’s my contribution to last week’s discussion on the landmark Supreme Court case establishing a “right to privacy” and legalizing contraception nationwide.
Griswold v. Connecticut, 381 U.S. 459 (1965)
Hindsight is 20-20. The forty-plus years after Griswold have validated the concerns expressed by social and religious conservatives and constitutional purists regarding the protections afforded the traditional conception of marriage and family. Groups advocating for social change, among them and most notably Planned Parenthood, have been well served by Supreme Court rulings since the 1960’s. While not the first attempt to overturn not only Connecticut law but remaining state laws prohibiting the sale or use of contraceptives, (1) Griswold (2) nevertheless was the necessary first stepping stone laid by the Court (absent a ruling on Poe v. Ullman) paving the way for Eisenstatdt v. Baird, Roe v. Wade, and subsequent federal and state rulings redefining sexual mores and lately, marriage. To wit, Connecticut, which for 86 years prior to Griswold had outlawed contraceptive use among married persons, became the third state to allow same-sex marriage. (3)
To the case. Appellants Griswold (executive director of Planned Parenthood in Connecticut) and Buxton, a physician and professor at Yale, were arrested and fined for giving information about and for prescribing contraceptive devices to marriage couples, in violation of Connecticut law. Writing for the majority in this 7-2 decision, Justice Douglas argued for a substantive protections provided by the due process clause of the Fourteenth Amendment, notably the “right of privacy” to be enjoyed by married couples, emanating from “penumbras” derived from amendments to the federal Constitution. The majority invoked the First, Third, Fourth, and Fifth, Ninth, and Fourteenth Amendments as indicating “zones of privacy,” including the marital bedroom. Thus devoid of any compelling State interest, the US Supreme Court invalidated the law, effectively nullifying any remaining state laws prohibiting the use of contraceptive devices by married couples. (4)
I ague with dissenters Black and Stewart. Unenumerated constitutional rights are virtually endless. Using the concept of substantive due process, the majority took upon itself exclusively to protect individual liberties at the expense of properly-constituted legislative bodies. An unintended effect is that, in trying to protect Connecticut citizens, the majority actually took away the rights of those citizens to work through their elected representatives in altering or voiding this law. Griswold also had the unintended negative consequence of privatizing not only marriage, but also sex. If marriage (in 1965, between a man and a woman) is due a “right of privacy” as the majority argued, then when does that right cease to exist? To consensual sexual acts between two adult regardless of sex, i.e., same-sex sex? Today, yes. How about tomorrow? How about sex between children, or between adults and children? I go no further, even though forces are at work to secure also these “rights to privacy.” Since all rights have limits, even those specifically mentioned in the federal or state constitutions, who is to determine when these rights become rather violations even though they reside in the liberty-protecting penumbras of the bedroom?
1) In 1916, “Woman Rebel” editor, socialist, and eugenicist Margaret Sanger, a founder of what eventually became Planned Parenthood, was herself arrested in New York for operating a family planning clinic. See Wikipedia citation below.
2) Ironically, although the Connecticut law forbidding the use of contraceptives by married couples had been on the books since 1879, it had never been enforced. See: http://www.oyez.com/cases/1960-1969/1960/1960_60.
3) See Wikipedia citation on Same-sex marriage below.
4) This section is from Menikoff, pp. 17-23, cited below.
Resources:
————-
Menikoff, Jerry. Law and Bioethics. (Washington, DC: Georgetown University Press, 2001).Wikipedia: Griswold v. Connecticut. http://en.wikipedia.org/wiki/Griswold_v_connecticut (accessed October 30, 2009).
Wikipedia: Margaret Sanger. http://en.wikipedia.org/wiki/Margaret_Sanger (accessed October 30, 2009).
Wikipedia: Poe v. Ullman. http://en.wikipedia.org/wiki/Poe_v._Ullman (accessed October 31, 2009).
Wikipedia: Roe v. Wade. http://en.wikipedia.org/wiki/Roe_v_wade (accessed October 31, 2009).
Wikipedia: Same-sex marriage in Connecticut. http://en.wikipedia.org/wiki/Same-sex_marriage_in_Connecticut (accessed October 31, 2009).
If you have not already read it, I recommend to you David Kennedy's "Birth Control in America," an awarding winning biography of Margaret Sanger. It chronicles, among other things, the intense opposition to liberalizing birth control restrictions both in the law and its condemnation in church teaching among Protestants as well as Catholics. I would also commend to you Kathleen A. Tobin's "The American Religious Debate over Birth Control, 1907–1937". Many Protestants were well aware of the importance of this issue. Finally, I would add that Griswold was cited by the Court in Lawrence v. Texas, which struck down the remaining state statutes making sodomy a crime. Justice Scalia, in his dissent, predicted that Lawrence, a progeny of Griswold, would lead to same-sex "marriage" and it was just a few months later that the Massachusetts Supreme Court struck down that state's restriction of marriage to one man and one woman in Goodridge v. State of Massachusetts, citing, if I recall, both Griswold and Lawrence. Griswold is the foundation upon which Roe, Lawrence and Goodridge were built.
Griswold let the camel's nose into the tent. Now the tent is so full of camel poop we need a Hercules to clean it out.
GKL is right: when Griswold gave heteros a right to sterile sex, it indirectly gave the same right to gays.
With all due respect, I would be leery of using information from Wikipedia as a point of reference.
Thanks, Heather! We're allowed to use Wiki on discussion pieces, such as this one, but not formal academic papers. Most of the information in these Wiki citations are well-known and factually correct. I included them only as points of reference.