Griswold Critics

I provided a summary of Griswold v. Connecticut yesterday and it bears noting that there are some who do not believe in it. After all, there being no basic "right to privacy" was (see Joe Biden's book) perhaps the major hook against placing Judge Bork (who John Paul Stevens supported at the time though Bork felt it was wrong for JPS to publicly say so) on the Supreme Court. Justice Thomas did a Justice Stewart in Lawrence v. Texas, saying it was a silly law, but there is no constitutional right against such things. (He also joined Scalia's screed for some reason.)

And, though some draw the line at abortion or gays, others too would go further. Robert George, a major warrior in the fight to save marriage by depriving same sex couples rights, argues the point here (I first found a version of his efforts on Youtube by doing a search on the case). Prof. George favors strong criticisms:

“Privacy” functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views.

This sort of disdain is sometimes seen by the critics of privacy rights. Always charming when error is mixed with sneers. The general sentiment that the justices merely invented things is hard to come by when protections over the privacy of marriage and family life was cited by courts for quite some time by that point. The alleged fact that it was not based on text is hard as well when the Fourth Amendment speaks of "the home" (see also, Justice Harlan's dissent in Poe v. Ullman, his conservative bona fides making it curious to talk about "lifestyle liberalism" here) while other open-ended protections like "privileges or immunities" (such as state authorized marriage) are found there.

The case against the right to privacy is there, if weak, but critics often overreach and allege the pro side that has no case, that they are in fact not arguing in good faith. This is bad pool and is more advocacy and personal spleen than useful argument (or, on some level, argument at all). Still, we can look past that (and errors like citing a Massachusetts case that dealt with a narrow state issue, not the general argument of a right to privacy) and look at the "myths."

For anyone who cares to look, the purposes of the laws are apparent in the record of the case: Connecticut sought to promote marital fidelity and stable families by discouraging attempts to avoid the possible consequences of non-marital sexual relations through the use of contraceptives.

Looking past the picking a fight preface there, the problem here -- and one place to look are the concurring opinions citing said purposes -- is that law was a bad fit in that respect. Contraceptives, for instance, were readily available to prevent disease. The citation of "purposeless restraints" is not based on there being no alleged purpose but that the restraint is so poorly constructed that legally speaking it is an arbitrary one.

What, then, was the operative “principle” in Griswold? Nothing other than the Court’s desire to place its imprimatur on “enlightened” views about human sexuality.

How does he reach this? First, he cites a state case concerning the statutory reach of a contraceptives law, which the USSC reasonably did not consider earlier. Next, he childishly makes fun of the penumbra metaphor, ignoring the underlining principle and its basis and precedent. Third, since "the rights of parents to direct the upbringing of their children" are among the aspects of privacy cited by the majority and concurring opinions, how does that have "little in common" with that opinion? The majority itself, for those who care to read it, spoke of "the right to educate one's children" as part of the issue at hand! The opinion ends with honoring marriage, not "human sexuality" writ large.  But, yes, ultimately, it is about (and even then, not merely that) our right to make various private sexual choices.  Some do not like that.  Our constitutional tradition, however, supports it.

As to "sensible" people disagreeing with the opinion, sure, it is not absurd to disagree with its reasoning. A bit of strawman. The argument that the wide use of contraceptives now provides an after the fact justification is not one I am overly familiar with myself though logically broad acceptance is one way to determine if a liberty should be honored. The opinions by Harlan and Goldberg cite precedent to back that up, again underlining the opinion (wrong or not) was not invented out of whole cloth. As to the need for the opinion to prevent legislation invading the right, well, apparently there is some bite there. As with abortion, the fact that "not enough to worry about" will be affected is a limited view of equal protection.

Griswold recognized rights that were already honored. The doctrinal principles set forth can be debated on some level, I myself finding them sound, but bottom line, the American people has well accepted them as a whole.