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
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
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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