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 of 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 v. Connecticut, 381 U.S. 479, 486 (1965)
Justice William O. Douglas was the author of the precedent that truly introduced "the right to privacy" as a fundamental (federal) constitutional right. The opinion, Griswold v. Connecticut, argued that past cases had referenced such a right, including in the Fourth Amendment context. Nonetheless, Griswold firmly gave such a right wide breadth, speaking of "zones of privacy," arising out of several constitutional guarantees. And, one key area of protection is married life.
Justice Douglas spoke from deep personal belief and experience. He is known as one of the most libertarian minded justices in our history and was very serious about his privacy. This concern applied to his family life, which in time became more and more controversial. In fact, his words honoring the "hopefully enduring" nature of marriage were rather ironical by 1965. After all, he had already had two divorces and was on his way to a third. No other justice before him, and only two afterwards (Justices Stevens and Thomas, only the former during his time on the bench) had even one divorce.
William Douglas’ family life during his early career was fairly regular and without controversy. Nonetheless, once appointed to a federal regulatory position, things began to change. He thrived in Washington D.C., but the same could not be said about his wife (Millie Douglas née Riddle) and children, all of whom felt he changed for the worst. The end of his marriage did not occur until he was on the Supreme Court for over ten years, but the seeds were sown some time before.
Justice Douglas’ second wife was a better match to his Washington lifestyle, especially since Mercedes Hester Davidson was formerly married to a former Assistant Secretary of the Interior. She was a good conversationalist, comfortable at home and at political dinner parties, and had a similar love of travel and the outdoors as her new husband. Nonetheless, Mercedes was also independent and not willing to put up with some of Justice Douglas’ less savory qualities, including his bullying and infidelity. Thus, it was not totally unexpected that the marriage did not last ten years.
These first two marriages alone add an interesting context to Justice Douglas’ inspirational words about marriage. For instance, an important aspect of marriage was "harmony of life," not solely loyalty to one’s spouse. Thus, if a marriage did not accomplish such an end, one or both members of the couple might opt out. Also, his experiences and choices suggest a certain selective practice of the principle of "bilateral loyalty," especially to the degree accounts suggest he treated his wives and children unfairly. Finally, "privacy" includes the right to make one’s own choices, especially if especially if "intimate" and "sacred" matters are at stake. The fact that society might not approve is on some important level beside the point.
While still married to Mercedes, Justice Douglas fell under the spell of a twenty-year-old college student, Joan Martin, and wooed her for two years until she agreed to marry him. The marriage soon proved to be the opposite of harmonious and soon Douglas had his third divorce. The union suggested the importance of the various aspects of a successful marriage noted in Griswold, including the dangers of rushing into one that clearly lacked the basic qualities a successful one would involve. Nonetheless, missteps and mistakes are part of freedom, including choices involving marriage. Divorce therefore provides a valuable outlet for those unions that turn out to be unsuccessful.
Justice Douglas’ final wife was also a young college student, Cathleen Heffernan, but one who was a better fit to his personality and lifestyle. Her youth, independence, liberal views, and loyalty matched well with her ability to not be overwhelmed by his strong personality and accomplishments. Surely to the surprise of some, this marriage proved "enduring and intimate" and a valuable promotion of a "way of life" on both sides. Cathleen Douglas also proved quite essential when her husband became ill, leading his children (older than her) to respect her care and devotion.
In the end, Justice Douglas proved to be a useful example of the importance and complexities of the right to privacy that he had such a key role in establishing. The importance of individuals having a right to make their own choices largely outside of the restraints of the state is quite evident, even when not involving those who used such freedom in as untraditional ways as he did. Nonetheless, Justice Douglas’ life underlined the possibilities, while showing that they are not always smooth sailing.
Privacy, however, is only fully protected when options are available to help deal with such troubled times. The right to divorce is such an option; one that in the end perhaps ironically promotes the goals of the institution it is in place to wrest asunder. If a marriage fails to further its noble goals, it at times becomes counterproductive to them. Thus, divorce provides a way to dissolve the union, and perhaps set the path for a "do over." Some might argue that Justice Douglas abused the privilege once too often, but in the end, perhaps even he proved its ultimate value.
If so, his life was not so ironical next to his words in Griswold after all.