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Legal AnalysisMarriage Equality

Love & the Law: Contraceptives

By June 20, 2012No Comments


As mentioned in last week’s post, to celebrate Pride month and advocate marriage equality, this piece and a few subsequent posts will revisit landmark cases in the area of “Love and the Law.”

The first case on our docket is Griswold v. Connecticut, which the U.S. Supreme Court decided in 1965. Though the issue in Griswold was whether a state law violated a married couple’s right to privacy and the Opinion of the Court, written by Justice Douglas, asserted that it did, the concurring opinion written by Justice Goldberg provided the more compelling arguments and analyses.

Griswold was the Executive Director of Planned Parenthood in Connecticut and, with a licensed physician, advised a married couple on how to use contraceptives. At the time, Connecticut state law prohibited using contraceptives and also prohibited helping a person commit crime. Consequently, Griswold and the doctor were found guilty of assisting the married couple in the commission of a crime.

The State argued that the case analysis should be based on the Due Process Clause of the Fourteenth Amendment as it relates to economic, business, or social situations. The Court disagreed and stated that Griswold didn’t involve those situations, but instead involved the “intimate relation of husband and wife and they physician’s role in one aspect of that relation.”

The Court next discussed the various penumbras, i.e., implied rights, included in the Bill of Rights, particularly those of the First Amendment, such as the freedom to associate with others and the right to privacy. Within the right to privacy, the Court further explained, previous case law found privacy zones such as one’s house, person, papers, or effects.

Happy Couple

Photo: Samantha Villagran, Mexico

Finally, putting it all together, the Court stated that Griswold involved a case about a relationship – an “association” – within a fundamental zone of privacy, a married couple’s house. Accordingly, there could be no rational reason for having this kind of law.

In his concurrence, Justice Goldberg fleshed out the reason why certain rights are “fundamental” in the first place: “In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] . . . as to be ranked as fundamental.” Goldberg related the fundamental rights to the pursuit of happiness (read Loving v. Virginia) as discussed by the Founders along with the “right to be let alone”; sounds familiar? We’ll get to Lawrence v. Texas, in a little bit. Goldberg then unequivocally stated that where fundamental rights are at stake, rational basis review (the lowest hurdle a law must overcome to pass constitutional muster) cannot be the standard of review for the law at issue affecting those rights.

Unfortunately, Goldberg also included homosexuality in the acceptable array of intimate acts that the State also prohibited. However, this was 1965 and the courts were getting their fill of individual rights issues with the civil rights movement focused on racial equality. Lawrence, which decriminalized sexual activity between gays and lesbians, was almost 20 years away, but Griswold, albeit with this hiccup, was a start in the equality movement, recognizing marriage as a private, fundamental right for couples, irrespective of contraceptive use.

The Love & the Law Episodes:
Brief Case History | Contraceptives | The Color of Love | The IRS v. NY |
Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2

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