More On Previous Subject

Note: I edited the two posts some over the last few days to add a few details such as an interesting law article by the same person cited by Griswold as writing a previous one on the subject. 

One thing it noted is that rights don't develop simply by a sort of "magic" like miasma was thought to spontaneously develop out of bad air.  They develop over time, often as a result of specific problems that are seen as requiring some sort of solution. This might turn some off, but life is annoying like that at times.  Such was the nature of the "right of privacy" here, which I should note wasn't simply announced by the USSC in the mid-1960s.  This is how some accounts treat the whole thing.

As with the famous law article a few generations before, it was the result of something already in the air, "privacy" particularly various aspects of it, already repeatedly cited in past cases and as generally recognized as existing by society overall. The ruling was a sort of recognition that a "tipping point" arrived, a time to firmly label what was already there. 

A few more words on the last topic. 

Read an interesting article on Douglas' privacy jurisprudence, "Toward a Constitutional Theory of Individuality" that was written in 1978 but retains value. It notes, e.g., that some have argued that Douglas in Griswold narrowed his more "natural law" thoughts as to privacy in part to get a Court to sign on.  Dissents and concurrences can be more open-ended, but as I noted, five justices signed on to concurrences that viewed things in a more open-ended way anyway.  They supported a type of "substantive due process" that honored various unenumerated rights (voting, family life, travel, equality as applied to the federal government).  I don't think Justice Clark's vote -- a person who later wrote an influential article on the right to abortion and even one suggesting in passing personal marijuana use was protected here, both without implying some concern about substantive due process -- required it either. And, the "penumbra" approach, for good or ill,  also didn't really have staying power as seen by Roe's simple citation of due process.

Justice Douglas from time to time continued a concern about substantive due process while finding ways to rule broadly in some other fashion. For instance, his separate concurrence in the lesser known abortion ruling (Doe v. Bolton) insisted Justice Stewart was wrong to call the right to privacy an aspect of "substantive due process," which to Douglas seemed in effect to be a sort of "Lochner-like" red flag.  But, Douglas still managed to draw out a broad view of the "right to privacy" with the constitutional hook ala Griswold something of a hand-wave at some point. Another example would be the Moreno case, which relied on what is now seen as "animus" while Douglas relied on a broad right to association or another where he relied on equal protection over due process with ironic "restraint" concerns.

As the article notes, Douglas comes off as somewhat inconsistent, since his style favors broad strokes, not fully honest admitting of interest balances. See, e.g., this case.  This comes up in general conversation on various issues too -- a favorite example, at times raised as if novel, is the apparent confusion of how lines can be drawn at same sex marriage and not incest or polygamy. Or, how a "right to privacy" is not the same as some open-ended libertarian regime that results in drug legalization or something.  Fact is lines are drawn, in part a result of what is currently seen as appropriate. Many realize this ("I don't mean that!") and law recognizes it, even when written opinions don't necessarily show as much work as let's say a law review article. Thus, no, I'm not going to go along with Kennedy bashing because his Windsor opinion etc. is at times not totally clear on how to apply the rules as much as having a general tendency.  Reasoned criticism is appropriate though that would be true for many a justice's opinion.

Anyway, Griswold, particularly as helped by the concurrences, continues to be valuable. Note, e.g., White's recognition of various cases that protected family life (which he later wrongly failed to see could include homosexuals in his abrupt dismissal in Bowers v. Hardwick, even though he accepted the precedent effect of cases that applied to unmarried sexual relations in general) and how in practice the anti-contraceptive law was applied unequally.  The "penumbra and emanations" language was expressed shortly before in a concurrence joined by three justices:

the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional [or state] abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.

Since some accounts have Justice Brennan counsel Douglas to expand on his draft opinion, I wonder if he flagged this language.  As noted, Douglas spoke of the general principle with some usage of the word "penumbra" or "emanation" before this, but that phrasing sounds ... to be blunt ... less funny. People ridicule Douglas' phrasing, even though the concept behind it is perfectly mundane. (How far you can go with it is another question.) This shows however that judicial craft matters though again the average person still doesn't care much -- Griswold unlike Roe is safe even from the criticism of many conservatives, though Scalia and Thomas might dissent.

As noted above, when applying the law, current practices will influence the results. This is the case whatever the issue and "liberty," "privacy," "due process," "equal protection" or some other open-ended term is not unique in this regard.  So, in 1986, though Justice Powell originally by accounts I read was willing to vote the other way (and a few years later said he probably should have), an attempt to fit same sex relations in broader rights held  "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" (citing two tests) was deemed "at best, facetious." Putting aside the opinion below, the dissent and others (including then Judge Kennedy) seeing it differently. Others either treated homosexuals differently [see, e.g., this article] or even a range of non-marital behaviors though this was destined to be somewhat short lived, even in some cases conservatives coming around to such things as same sex marriages.

Times change. Laurence Tribe in his oral argument (see Oyez.com) had to deal with dicta in concurring opinions in Griswold that suggested homosexual relations could be treated differently. But, that opinion was before Stonewall, taking homosexuality off the formal list of mental orders and so forth.  By the late 1970s, Justice Powell warned* that open-ended protection of marriage as a component of the right to privacy left open the overruling of barriers based on sexual orientation.  And, the opinion below recognized same sex couples had the general criteria warranting protection.  It took time for more to fight against habit and other assumptions to concur. 

And, this process continues, and will in ways that is a few decades will likely seem as striking as same sex relationships being recognized once was and still is for some.

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* There is a tendency toward making same sex marriage a bit more novel than it truly is. I put aside "Boston marriages" of a century ago and a few Baker v. Nelson like claims. Also, some other historical precedents and transsexual issues.  "Marriage" is a collection of things basically (religious, intimate, social etc. in nature) and this is seen in respect to "common law" marriage (in effect, though it no longer is widely recognized, living like man and wife = married even without a license; it is interesting to consider how this applies to same sex couples today).  And, over the years, same sex couples had such criteria.  It was just a matter of recognizing the fact.

Justice Powell's concurring opinion in that case recognizes this:

State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.

By the late 1970s, coverture already in effect was treated as a violation of equal protection (see, e.g., Reed v. Reed), something that for centuries was deemed a basic part of "traditional" marriage.  Now, it is seen as not really needed for "marriage" to exist, even by many conservatives.  I think Powell's chickens, so to speak, are about to roost here.