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Philosophy 22B

Griswold v. Connecticut
(United States Supreme Court, 1965)

Griswold, the director of the Planned Parenthood League of Connecticut, was arrested in 1961 for violating a state law forbidding the distribution of contraceptive devices and information. The Planned Parenthood League provided contraceptives and information to married couples. The law forbid the distribution of contraceptives and information to any person, whether he or she was under-age, over-age, married or unmarried. Griswold argued that the law violated the Constitution and the Supreme Court agreed.

Justice Douglas, arguing for the majority, found that the Connecticut law violated the general right to privacy recognized by the Constitution as a right of all citizens. Justice Douglas was aware that "privacy" is not mentioned anywhere in the Constitution; nonetheless he found the "right to privacy" embedded in the "penumbras," in the shadows and implications of several amendments to the Constitution.

To make his case Douglas relied partly on precedent, the authority of prior cases. In Pierce v. Meyer the Court had held that the First Amendment protects the rights of parents to send their children to private schools and to teach them a foreign language. In NAACP v. Alabama, the Court had protected the freedom to associate by preventing disclosure of an organization's membership list. Douglas also noted that the Third and Fourth Amendments protect a person's interest in the privacy and sanctity of the home; and the Fifth Amendment, he argued, protects people against being forced to disclose things about themselves. Douglas believed provisions in the Constitution and the prior cases added up to a general right to privacy relating to matters of marriage, children, and family. The State of Conneciticut must have a legitimate state purpose for invading this zone of privacy and Douglas insisted that the State did not. After all, if the purpose of the law (as the State claimed) was to discourage illicit sexual relations, why punish birth control counseling for married couples?

At least two other arguments for a right to privacy in the Constitution were given in Griswold. Justice Goldberg argued that the right was protected by the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Justice Harlan believed that the Connecticut law also violated the "due process" clause of the Fourteenth Amendment which, according to Harlan, protects "values implicit in the concept of ordered liberty," as well as "rights that are fundamental" to ordered liberty. One of these values or rights, Harlan argued, was privacy in the home, including marital privacy.

Justice Black, in dissent, said he did not like the Conneciticut law but, try as he might, he could not find a right to privacy anywhere in the Constititution.

Extending the Right of Privacy:
Loving to Roe v. Wade 410 U. S. 153 (1973)

A number of decisions following Griswold have extended the scope of the right of privacy, striking down laws prohibiting interracial marriage (Loving v. Virginia 388 U. S. 1, 1967), extending the right of privacy to include the possession of obscene materials in one's own home (Stanley v. Georgia 394 U. S. 577, 1969), reversing a conviction for the distribution of contractives to unmarried persons (Eisenstadt v. Baird 405 U. S. 438, 1972), and invalidating laws prohibiting the sale of non-prescription contraceptives to anyone under the age of sixteen (Carey v. Population Services 431 U. S. 678, 1977).

By far the most controversial case that followed in the wake of Griswold came in 1973 when the Court struck down criminal abortion laws that prohibited abortions except to save the life of the mother. Justice Blackmun who gave the opinion of the Court applied the right to privacy to abortion, arguing that "the right of privacy, whether it be founded on the Fourteenth Amendment's concept of personal liberty and restrictions on state actions, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Bowers v. Hardwick
(United States Supreme Court, 1986)

Bowers v. Harwick decided by the Supreme Court in 1986 raises deep questions about Griswold. Michael Harwick had been drinking in public, an offense for which he was given a citation. He missed his first court appearance and a warrant for his areest was issued. Hardwick subsequently paod his fine but the warrant for his arrest, because of some bureaucratic mix-up, was not recalled. An officer, charged with executing the warrant, showed up on the door-step of Hardwick's home, and someone, a friend who was visiting Harwick, let him in. Once inside, the officer saw Hardwick in his bedroom with another man, engaged in an act of oral sex, an act which is a felony in the State of Georgia.

In August of 1982 Harwick was charged with and arrested for violating the Georgia law criminalizing sodomy by committing that "crime" in the bedroom of his own home with another consenting adult male. The Court of Appeals ruled that the Georgia law violated Hardwick's fundamental rights because his activity was of a private and intimate nature beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.

The Supreme Court reversed the judgment of the Court of Appeals, arguing that the earlier right of privacy cases, Griswold, Roe et al, only dealt with intimate matters pertaining to family, marriage, and procreation, none of which are at stake, Justice White argued, in gay sex. Nor is Hardwick's sexual conduct one of those "fundamental rights" deeply "rooted in our Nation's history and traditions," a point Justice White supported by a long list of statutes and state policies criminalizing homosexual conduct. And to someone who might wonder whether the Georgia sodomy law is an example of "the legal enforcement of morals," the Court offered the following in reply: "The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."

The Court also argued against the position that homosexual conduct between consenting adults that occurs in the privacy of the home ought to be protected, pointing out that Hardwick could not rely on privacy in the home because not everything that occurs in the home is constitutionally protected. "Victimless crimes, such as the possession of illegal drugs, do not escape the law where they are committed at home." The home, the Court added, is also no protection for the possession of stolen goods, and noted that the sexual crimes of adultery and incest are "exposed to prosecution . . . even though they are committed in the home."

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