G is for Griswold

Do people have a right to privacy? Most people would say they do, but where, exactly, does that come from? In the United States, that right is grounded in a landmark US Supreme Court ruling that turns out to be very topical at the moment. Regardless of where one stands on the so-called “social issues”, I think it’s important that we all understand what the debates are built on.

Griswold v. Connecticut was the 1965 case that first declared that there’s a constitutional right to privacy. That specific case involved a challenge to a Connecticut law that prohibited the use of contraceptives. When US presidential candidates speak out against artificial birth control, they bump up against this ruling, as do state legislators who ban the most popular means of birth control when they’re trying to restrict abortion. But that’s only for starters.

The reasoning behind the Court’s ruling was based primarily on two amendments to the US Constitution: The Ninth Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and also the Fourteenth Amendment, which, among many other things, requires equal protection of the laws as well as the right to due process.

The dissenting Justices in the Griswold case, Hugo Black and Potter Stewart, argued that a literal right to privacy cannot be found in the US Constitution, therefore, it did not exist. That same argument has been used by conservatives ever since.

All of this is important not just for the Griswold case and the right to use contraception, but for many other issues, too. Griswold applied only to married couples; in 1972 the Court extended the right (in Eisenstadt v. Baird) to include all couples because the Fourteenth Amendment requires equal treatment under law.

The following year, the Court extended the right to privacy in Roe v. Wade, which referred back to both Griswold and Eisenstadt. The ruling was also based on the due process clause of the Fourteenth Amendment.

The advancement of a right to privacy stumbled a bit in 1986 when the Supreme Court ruled in Bowers v. Hardwick that, essentially, that there was no right to privacy for gay people, particularly for private, consensual adult sexual activity. The Georgia law challenged in Bowers v. Hardwick was struck down in 1998 by the Georgia Supreme Court.

The Bowers ruling itself was finally overturned in 2003 by Lawrence v. Texas, again based on the due process clause of the Fourteenth Amendment. In the majority opinion, Justice Anthony Kennedy wrote, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." Can’t get more definitive than that.

The issues raised in all these cases will again come before the Supreme Court, and it could be a case relating to any number of social issues. However, to me it seems most likely that the case will involve the right of same-sex couples to marry, either relating to California’s Proposition 8 or the federal “Defense of Marriage Act”.

When that ruling happens, it will be based, directly or indirectly, on all the cases I’ve mentioned. Regardless of where we stand on these “divisive” social issues, we should know first where we came from, and Griswold is where it all began.

*****

Oddly enough, there’s also a town called Griswold in Connecticut.

The image of the US Supreme Court building at the top of this post a Creative Commons licensed photo by Wikiwopbop, published by Wikimedia Commons.

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