I used Oyez.com to listen to the oral arguments for four contraceptives rights cases -- Poe v. Ullman (avoided on standing grounds, but Justice Harlan's dissent in effect accepted in later cases), Griswold v. Connecticut (use by married couples), Eisenstadt v. Baird (distribution to unmarried individuals) and Carey v. Populations Services (sale to minors [including limits on pharmacists] and certain types of advertising). There is also a case limiting unsolicited advertisements of contraceptives in the mails, Bolger v. Youngs Drug Products, which I also listened to recently. That was a 1A case of a somewhat different caliber.
Lawrence v. Texas summarizes the "intimate sexual conduct" and related issues that are protected by the "liberty" aspect of the Due Process Clause:
The first oral argument was largely a matter of the advocate for the couples involved trying to argue that the ban on use (whose primary effect was to stop opening up of clinics distributing contraceptives) was unreasonable. There was a few words on how the only real alternative -- abstinence -- in effect invading marriage by depriving members to practice a key aspect of it, but the privacy argument was mostly left to the second argument. The second argument also provided a bit of a free speech argument, since the aid and abetting law also in part banned "counseling" people to use contraceptives. Both, even more time than given these days, were not exactly a clear summary of all of what the cases were about.
The brief Griswold opinion also has been open to criticism for not adequately explaining what turned out to be a major landmark in privacy law. The material was there and especially with an assist of the concurring opinions (Justice White particularly is helpful) the opinion is okay. Still, a more expansive summary of the record and reasoning could be demanded. This is so especially since the later cases in effect just treated the matter at hand mainly as a fairly easy process of applying precedent. This is so even though some might have thought the point in Griswold was the protection of marriage while Baird took it as a given that the same right at hand applies to individuals. Or, maybe it was the use, not sale as in Carey. Children and so forth add to the complications.*
Again, this is not to say the rulings are wrongly decided. We are dealing with personal rights and in effect the right to get married and have children includes the right not to do so. And, there is a general right to personal health and any state police power over "health" should be reasonable (we still see some of this in abortion cases -- mainstream expert thought factors in the weighing of regulations). Still, the rights of marriage does not necessarily compel the right to sexual freedom generally. For instance, the issue of equal protection here includes a recognition that nothing is wrong with homosexuality as a public matter. This required changing psychiatric knowledge and social developments. The more cases involving personal rights, including to possess obscene materials, the more "bedrooms" overall are involved, not just "marital" ones.
The cases were about contraceptive usage, not the right to have sex generally. So, e.g., Baird didn't hold the state's fornication law (with a small penalty) was unconstitutional, just that the anti-contraceptive law with a much greater penalty involved was not the proper way to advance it. A few justices also in part spoke separately in Carey to make clear they accepted that NY could ban minors from having sex. Banning contraceptives was just an illegitimate way of protecting their interests. And, yes, married couples presumptively could have sex, the state in Bowers v. Hardwick even accepting the constitutional right there applied to sodomy. That case did draw the line for constitutional liberty.
Nonetheless, once a right to privacy was applied to individuals, there was an understanding by many that it included a broad right to sex among consenting adults generally. And, this is how things turned out eventually in Lawrence v. Texas. The exception there is that though sale of contraceptives is broadly protected, all types of sale related to sex has not been broadly protected. A court of appeals even upheld a sex toy ban though most appellate courts did find that protected. Obscenity outside of the home remains open to criminalization, even if merely downloaded to the home computer. The staying power of this last matter -- which one district judge rightly saw as illogical after Lawrence -- is open to some doubt. This broad application of sexual liberty took time.
Note that like abortion, the right to use contraceptives could be formulated as an equal protection right to uphold the equal place of women in society. There is an added wrinkle here that contraceptives (namely condoms) could help prevent disease and protect the health of men directly. The "contraception" v. "disease" line was pretty irrational if the latter definition was given its appropriate reach. This was something used to try to show how the old bans were unconstitutional, but this clashed with justices distrusting such Lochner-like substantive due process. So, there was a need to hook it up to a narrower issue -- a right to privacy over family life. The details of the law in practice in Connecticut is useful in this respect. If "contraception" is the concern, usage can be to be for health. But, preventing pregnancy in all cases has health benefits. Where's the line there? And, if abstinence is the only real alternative, can the state put a person to a Hobson's Choice to not take part in a basic aspect of marriage? Is marriage not a fundamental right? Contra the dissent, this is not merely roaming around by the courts to determine what is a "just law." And, state practice to in effect allow contraceptive use widely limits their interest in banning it in limited ways with unequal effect.
It is true that once you broaden it past marriage, we are being more expansive. A related way of thinking about this is as a sort of intimate association, which was suggested to be protected in various cases. These are different than "expressive" advocacy type associations though I would argue both advance somewhat similar interests in various ways.** Marriage was the most important one and Justice Douglas reportedly originally wanted to decide Griswold largely on that ground (his dissent in Poe v. Ullman covered more ground, but he often spent more time with his separate opinions). Lawrence v. Texas cites the rights of homosexuals to form relationships, including sexual in nature, in this fashion. Contraception also can be seen like sex toys etc. as a fundamental aspect of this. Again, a right to association is a somewhat limited approach, not mere "liberty."
Still, as I have noted in the past, do also accept there is a broad personal liberty in these cases. The various interests cited do help show how it fits among the more specific enumerated rights. A liberty to form personal romantic and sexual relationships is basic to freedom, which is what I take the 13th and 14th Amendments particularly address. This would be particularly so once we are dealing with the state authorized marital union, which has to be applied on an equal basis. To end with the last update.
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* The Baird case was a mixed free speech -- the person handed out a contraceptive device after a speech -- and privacy case that was ultimately decided on equal protection grounds. The oral argument was not very good, partially perhaps because the long term advocate was replaced late by a recently defeated U.S. senator to add prestige. The advocate in Carey is mostly notable for the libertarian breadth in his argument.
One thing that I felt strange was Brennan and Black's apparent annoyance at Prof. Emerson in Griswold not to recognize there is some sort of equal protection argument. It wasn't exactly clear what the point was -- as he noted, there is reasonably a difference between treating the married and unmarried here. Basically they limited it the the former since it seemed to expect too much to have the Supreme Court in 1964 declare that even the unmarried have the right to use contraceptives. Was one or the other saying that the unmarried would have cause to complain?
Also, unless there was some underlining reason for it to be a problem, why wouldn't the state have the power to only allow contraceptives for one purpose? Was there some sort of equal protection rationale regarding classification contraceptives there? That would satisfy Black, who was a strong opponent of substantive due process?
** Marriage as a sacrament is but one example of how associations of this type advance First Amendment issues. Also, one issue here -- both regarding bans and protections -- is the expressive character of the associations. Relationships here send certain messages as do bans, which as Stevens notes in his separate Carey concurrence often largely have a symbolic function, if one that unconstitutionally hurt third parties.
Lawrence v. Texas summarizes the "intimate sexual conduct" and related issues that are protected by the "liberty" aspect of the Due Process Clause:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.Ultimately, certain basic issues -- particularly those related to family life -- are personal liberties that cannot be restrained merely because of disputed matters of personal morality. This as has been noted in the past -- and suggested in the first two oral arguments -- shows how religious questions have a major place in this area. The difference between "morals" in this context and personal religious beliefs is unclear. Regardless, either secular or religious conscience is protected here. Likewise, overall -- as noted repeatedly in the past -- there is an overall conclusion that there is a zone of privacy protected by the Constitution using various approaches in so doing.
The first oral argument was largely a matter of the advocate for the couples involved trying to argue that the ban on use (whose primary effect was to stop opening up of clinics distributing contraceptives) was unreasonable. There was a few words on how the only real alternative -- abstinence -- in effect invading marriage by depriving members to practice a key aspect of it, but the privacy argument was mostly left to the second argument. The second argument also provided a bit of a free speech argument, since the aid and abetting law also in part banned "counseling" people to use contraceptives. Both, even more time than given these days, were not exactly a clear summary of all of what the cases were about.
The brief Griswold opinion also has been open to criticism for not adequately explaining what turned out to be a major landmark in privacy law. The material was there and especially with an assist of the concurring opinions (Justice White particularly is helpful) the opinion is okay. Still, a more expansive summary of the record and reasoning could be demanded. This is so especially since the later cases in effect just treated the matter at hand mainly as a fairly easy process of applying precedent. This is so even though some might have thought the point in Griswold was the protection of marriage while Baird took it as a given that the same right at hand applies to individuals. Or, maybe it was the use, not sale as in Carey. Children and so forth add to the complications.*
Again, this is not to say the rulings are wrongly decided. We are dealing with personal rights and in effect the right to get married and have children includes the right not to do so. And, there is a general right to personal health and any state police power over "health" should be reasonable (we still see some of this in abortion cases -- mainstream expert thought factors in the weighing of regulations). Still, the rights of marriage does not necessarily compel the right to sexual freedom generally. For instance, the issue of equal protection here includes a recognition that nothing is wrong with homosexuality as a public matter. This required changing psychiatric knowledge and social developments. The more cases involving personal rights, including to possess obscene materials, the more "bedrooms" overall are involved, not just "marital" ones.
The cases were about contraceptive usage, not the right to have sex generally. So, e.g., Baird didn't hold the state's fornication law (with a small penalty) was unconstitutional, just that the anti-contraceptive law with a much greater penalty involved was not the proper way to advance it. A few justices also in part spoke separately in Carey to make clear they accepted that NY could ban minors from having sex. Banning contraceptives was just an illegitimate way of protecting their interests. And, yes, married couples presumptively could have sex, the state in Bowers v. Hardwick even accepting the constitutional right there applied to sodomy. That case did draw the line for constitutional liberty.
Nonetheless, once a right to privacy was applied to individuals, there was an understanding by many that it included a broad right to sex among consenting adults generally. And, this is how things turned out eventually in Lawrence v. Texas. The exception there is that though sale of contraceptives is broadly protected, all types of sale related to sex has not been broadly protected. A court of appeals even upheld a sex toy ban though most appellate courts did find that protected. Obscenity outside of the home remains open to criminalization, even if merely downloaded to the home computer. The staying power of this last matter -- which one district judge rightly saw as illogical after Lawrence -- is open to some doubt. This broad application of sexual liberty took time.
Note that like abortion, the right to use contraceptives could be formulated as an equal protection right to uphold the equal place of women in society. There is an added wrinkle here that contraceptives (namely condoms) could help prevent disease and protect the health of men directly. The "contraception" v. "disease" line was pretty irrational if the latter definition was given its appropriate reach. This was something used to try to show how the old bans were unconstitutional, but this clashed with justices distrusting such Lochner-like substantive due process. So, there was a need to hook it up to a narrower issue -- a right to privacy over family life. The details of the law in practice in Connecticut is useful in this respect. If "contraception" is the concern, usage can be to be for health. But, preventing pregnancy in all cases has health benefits. Where's the line there? And, if abstinence is the only real alternative, can the state put a person to a Hobson's Choice to not take part in a basic aspect of marriage? Is marriage not a fundamental right? Contra the dissent, this is not merely roaming around by the courts to determine what is a "just law." And, state practice to in effect allow contraceptive use widely limits their interest in banning it in limited ways with unequal effect.
It is true that once you broaden it past marriage, we are being more expansive. A related way of thinking about this is as a sort of intimate association, which was suggested to be protected in various cases. These are different than "expressive" advocacy type associations though I would argue both advance somewhat similar interests in various ways.** Marriage was the most important one and Justice Douglas reportedly originally wanted to decide Griswold largely on that ground (his dissent in Poe v. Ullman covered more ground, but he often spent more time with his separate opinions). Lawrence v. Texas cites the rights of homosexuals to form relationships, including sexual in nature, in this fashion. Contraception also can be seen like sex toys etc. as a fundamental aspect of this. Again, a right to association is a somewhat limited approach, not mere "liberty."
Still, as I have noted in the past, do also accept there is a broad personal liberty in these cases. The various interests cited do help show how it fits among the more specific enumerated rights. A liberty to form personal romantic and sexual relationships is basic to freedom, which is what I take the 13th and 14th Amendments particularly address. This would be particularly so once we are dealing with the state authorized marital union, which has to be applied on an equal basis. To end with the last update.
---
* The Baird case was a mixed free speech -- the person handed out a contraceptive device after a speech -- and privacy case that was ultimately decided on equal protection grounds. The oral argument was not very good, partially perhaps because the long term advocate was replaced late by a recently defeated U.S. senator to add prestige. The advocate in Carey is mostly notable for the libertarian breadth in his argument.
One thing that I felt strange was Brennan and Black's apparent annoyance at Prof. Emerson in Griswold not to recognize there is some sort of equal protection argument. It wasn't exactly clear what the point was -- as he noted, there is reasonably a difference between treating the married and unmarried here. Basically they limited it the the former since it seemed to expect too much to have the Supreme Court in 1964 declare that even the unmarried have the right to use contraceptives. Was one or the other saying that the unmarried would have cause to complain?
Also, unless there was some underlining reason for it to be a problem, why wouldn't the state have the power to only allow contraceptives for one purpose? Was there some sort of equal protection rationale regarding classification contraceptives there? That would satisfy Black, who was a strong opponent of substantive due process?
** Marriage as a sacrament is but one example of how associations of this type advance First Amendment issues. Also, one issue here -- both regarding bans and protections -- is the expressive character of the associations. Relationships here send certain messages as do bans, which as Stevens notes in his separate Carey concurrence often largely have a symbolic function, if one that unconstitutionally hurt third parties.
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