Griswold v. Connecticut

Justice William O. Douglas, the author of the majority opinion in Griswold

Seven justices formed the majority and joined an opinion written by justice William O. Douglas. The Court held that the U.S. Constitution protects "marital privacy" as a fundamental constitutional right, but it struggled to identify a particular source for the right in the Constitution's text.[14] The Court rejected the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution as the source of the marital privacy right, because at the time the Court still formally rejected the doctrine of substantive due process due to its association with the 1905 decision Lochner v. New York.[14][15]

Instead of trying to justify the right to marital privacy under substantive due process, the Court said that the marital privacy right was implied by the specific provisions of the Bill of Rights, such as those in the First, Third, Fourth, and Fifth Amendments.[14] It referenced earlier cases where the Court had found personal liberties that were constitutionally protected despite not being specifically enumerated in the Constitution, such as the constitutional right to parental control over childrearing found in the early 20th century cases Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).[15] The Court viewed marital privacy right's implicit nature to be similar, and in a now well-known line Douglas used the metaphor of shined light and its shadows to describe it.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.

...

We have had many controversies over these penumbral rights of "privacy and repose." These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

— Griswold v. Connecticut, 381 U.S. at 484–85 (case citations omitted).[16]

Reasoning that the provisions of the Bill of Rights created "emanations" of protection that created "penumbras" within which rights could still be covered even if not explicitly enumerated in the Constitution, Douglas wrote that the right to marital privacy fell within this protection. The Court concluded that Connecticut's Comstock Law violated this right to privacy, and therefore was unconstitutional.[14] Douglas reasoned that the right to marital privacy was "older than the Bill of Rights", and ended the opinion with an impassioned appeal to the sanctity of marriage in the Anglo-American culture and common law tradition.

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.
  We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

— Griswold, 381 U.S. at 485–86.[17]

Justice Arthur Goldberg concurred with the Court and wrote a separate opinion to emphasize his view that the Ninth Amendment—which states that if the Constitution enumerates certain rights but does not enumerate others it does not mean that the other rights do not exist—was sufficient authority on its own to support the Court's finding of a fundamental constitutional right to marital privacy.[18] Justice John Marshall Harlan II also concurred with the Court, and wrote a concurring opinion arguing that the right to privacy should be protected under the Due Process Clause of the Fourteenth Amendment. Justice Byron White concurred only in the judgment, and wrote an opinion describing how he thought Connecticut's law failed rational basis scrutiny, saying: "I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships."[19]

Justices Hugo Black and Potter Stewart dissented from the Court's decision. Both justices' dissents argued that because the U.S. Constitution does not expressly mention privacy in any of its provisions, the Court had no basis to strike down Connecticut's Comstock Law.[18] Black's dissent concluded: "I get nowhere in this case by talk about a constitutional 'right of privacy' as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."[20]

Eisenstadt v. Baird (1972) extended Griswold’s holding to unmarried couples. [21] The argument in Eisenstadt was that it was a violation of the Equal Protection Clause of the Fourteenth Amendment to deny unmarried couples the right to use contraception when married couples did have that right (under Griswold).[22] Writing for the majority, Justice Brennan wrote that Massachusetts could not enforce the law against married couples because of Griswold v. Connecticut, so the law worked "irrational discrimination" if not extended to unmarried couples as well.

The reasoning and language of both Griswold and Eisenstadt were cited in the concurring opinion by Associate Justice Potter Stewart in support of Roe v. Wade, 410 U.S. 113 (1973).[23] The decision in Roe struck down a Texas law that criminalized aiding a woman in getting an abortion.[24] The Court ruled that this law was a violation of the Due Process Clause of the Fourteenth Amendment. Abortion became legalized for any woman for any reason, up through the first trimester, with possible restrictions for maternal health in the second trimester (the midpoint of which is the approximate time of fetal viability). In the third trimester of pregnancy, abortion is potentially illegal with exception for the mother's health, which the court defined broadly in Doe v. Bolton. On June 24, 2022, Roe v. Wade was struck down and replaced with Dobbs v. Jackson. The ruling reversed the application Due Process Clause in the case of abortion.

In Carey v. Population Services International (1977) the U.S. Supreme Court held that it was unconstitutional to prohibit anyone other than a licensed pharmacist to distribute nonprescription contraceptives to persons 16 years of age or over, to prohibit the distribution of nonprescription contraceptives by any adult to minors under 16 years of age, and to prohibit anyone, including licensed pharmacists, to advertise or display contraceptives. The Court also held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not allow a state to intrude on an individual's decisions on matters of procreation which is protected as privacy rights.[25]

Lawrence v. Texas (2003) struck down a Texas sodomy law that prohibited certain forms of intimate sexual contact between members of the same sex. Without stating a standard of review in the majority opinion, the court overruled Bowers v. Hardwick (1986), declaring that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Justice O'Connor, who wrote a concurring opinion, framed it as an issue of rational basis review. Justice Kennedy's majority opinion, based on the liberty interest protected by the due process clause of the Fourteenth Amendment, stated that the Texas anti-sodomy statute touched "upon the most private human conduct, sexual behavior, and in the most private of places, the home", and attempted to "control a personal relationship that ... is within the liberty of persons to choose without being punished". Thus, the Court held that adults are entitled to participate in private, consensual sexual conduct. While the opinion in Lawrence was framed in terms of the right to liberty, Kennedy described the "right to privacy" found in Griswold as the "most pertinent beginning point" in the evolution of the concepts embodied in Lawrence.[26]

Griswold was also cited in a chain of cases that led the Supreme Court to legalize same-sex marriage in another landmark case, Obergefell v. Hodges.

On June 24, 2022, the majority opinion in Dobbs v. Jackson Women's Health Organization written by Justice Samuel Alito limited the right to privacy to exclude the right to an abortion. In Justice Clarence Thomas' concurrence, he argued, "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell, ... Because any substantive due process decision is 'demonstrably erroneous' ... we have a duty to 'correct the error' established in those precedents," referring to decisions on contraception, sodomy, and same-sex marriage as future cases for the Supreme Court to reverse.[27] In regards to unenumerated rights, the opinion also said, "The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of 'liberty'."[28][29]

The dissenting opinion criticized the majority for overturning precedents dating back to Griswold, and argued, "And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions ... So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."[27][30]

• Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-9574-9.
• Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West Thomson/Reuters. OCLC 798148265.