|
Mr. Justice GOLDBERG, whom THE CHIEF JUSTICE and Mr. Justice BRENNAN join,
concurring.
Griswald v. Connecticut
Court Cases
Index
Court's Opinion, Justice Douglas
Justice White's concurring opinion
Justice Harlan's concurring opinion
Justice Goldberg's concurring opinion
Justice Black's dissenting opinion
Justice Stewart's dissenting opinion
I agree with the Court that Connecticut's
birth-control law unconstitutionally intrudes upon the right of marital privacy, and I
join in its opinion and judgment. Although I have not accepted the view that 'due process'
as used in the Fourteenth Amendment includes all of the first eight Amendments (see my
concurring opinion in Pointer v. Texas, 380 U.S. 400, 410, 85 S.Ct. 1065, 1071, 13 L.Ed.2d
923, and the dissenting opinion of Mr. Justice Brennan in Cohen v. Hurley, 366 U.S. 117,
154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156), I do agree that the concept of liberty protects
those personal rights that are fundamental, and is not confined to the specific terms of
the Bill of Rights. My conclusion that the concept of liberty is not so restricted and
that it embraces the right of marital privacy though that right is not mentioned
explicitly in the Constitution [Fn1] is supported both by numerous*487 decisions of
this Court, referred to in the Court's opinion, and by the language and history of the
Ninth Amendment. In reaching the conclusion that the right of marital privacy is
protected, as being within the protected penumbra of specific guarantees of the Bill of
Rights, the Court refers to the Ninth Amendment, ante, at 1681. I add these words to
emphasize the relevance of that Amendment to the Court's holding.
Fn1. My Brother STEWART dissents on the
ground that he 'can find no . . . general right of privacy in the Bill of Rights, in any
other part of the Constitution, or in any case ever before decided by this Court.' Post,
at 1706. He would require a more explicit guarantee than the one which the Court derives
from several constitutional amendments. This Court, however, has never held that the Bill
of Rights or the Fourteenth Amendment protects only those rights that the Constitution
specifically mentions by name. See, e.g., Bolling v. Sharpe, 347 U.S. 497,
74 S.Ct. 693, 98 L.Ed. 884; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659,
12 L.Ed.2d 992; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Carrington v.
Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675; Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; NAACP v. Alabama, 360 U.S. 240, 79
S.Ct. 1001, 3 L.Ed.2d 1205; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070; Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625. To the contrary, this
Court, for example, in Bolling v. Sharpe, supra, while recognizing that the Fifth
Amendment does not contain the 'explicit safeguard' of an equal protection clause, id.,
347 U.S. at 499, 74 S.Ct. at 694, nevertheless derived an equal protection principle from
that Amendment's Due Process Clause. And in Schware v. Board of Bar Examiners, supra,
the Court held that the Fourteenth Amendment protects from arbitrary state action the
right to pursue an occupation, such as the practice of law.
The Court stated many years ago that the Due
Process Clause protects those liberties that are 'so rooted in the traditions and
conscience of our people as to be ranked as fundamental.' Snyder v. Com. of Massachusetts,
291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. In Gitlow v. People of State of New
York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138, the Court said:
'For present purposes we may and do assume
that freedom of speech and of the press--which are protected by the First Amendment from
abridgment by Congress--are among the fundamental personal rights and 'liberties'
protected by the due process clause of the Fourteenth Amendment from impairment by the
States.' (Emphasis added.)
*488 And, in Meyer v. State of Nebraska,
262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, the Court, referring to the
Fourteenth Amendment, stated:
'While this court has not attempted to define
with exactness the liberty thus guaranteed, the term has received much consideration and
some of the included things have been definitely stated. Without doubt, it denotes not
merely freedom from bodily restraint but also (for example,) the right . . . to marry,
establish a home and bring up children . . . .'
This Court, in a series of decisions, has
held that the Fourteenth Amendment absorbs and applies to the States those specifics of
the first eight amendments which express fundamental personal rights. [Fn2] The language
and history of the Ninth Amendment reveal that the Framers of the Constitution believed
that there are additional fundamental rights, protected from governmental infringement,
which exist alongside those fundamental rights specifically mentioned in the first eight
constitutional amendments.
Fn2. See, e.g., Chicago, B.
& Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979; Gitlow v. New
York, supra; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213;
Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Robinson
v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12
L.Ed.2d 653; Pointer v. Texas, supra; Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,
14 L.Ed.2d 106.
The Ninth Amendment reads, 'The enumeration
in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.' The Amendment is almost entirely the work of James Madison. It
was introduced in Congress by him and passed the House and Senate with little or no debate
and virtually no change in language. It was proffered to quiet expressed fears that a bill
of specifically enumerated rights [Fn3] could not be sufficiently broad to cover all
essential *489 rights and that the specific mention of certain rights would be
interpreted as a denial that others were protected. [Fn4]
Fn3. Madison himself had previously pointed
out the dangers of inaccuracy resulting from the fact that 'no language is so copious as
to supply words and phrases for every complex idea.' The Federalist, No. 37 (Cooke ed.
1961), at 236.
Fn4. Alexander Hamilton was opposed to a bill
of rights on the ground that it was unnecessary because the Federal Government was a
government of delegated powers and it was not granted the power to intrude upon
fundamental personal rights. The Federalist, No. 84 (Cooke ed. 1961), at 578-579. He also
argued,
'I go further, and affirm that bills of
rights, in the sense and in the extent in which they are contended for, are not only
unnecessary in the proposed constitution, but would even be dangerous. They would contain
various exceptions to powers which are not granted; and on this very account, would afford
a colourable pretext to claim more than were granted. For why declare that things shall
not be done which there is no power to do? Why for instance, should it be said, that the
liberty of the press shall not be restrained, when no power is given by which restrictions
may be imposed? I will not contend that such a provision would confer a regulating power;
but it is evident that it would furnish, to men disposed to usurp, a plausible pretence
for claiming that power.' Id., at 579. The Ninth Amendment and the Tenth Amendment,
which provides, 'The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the
people,' were apparently also designed in part to meet the above-quoted argument of
Hamilton.
In presenting the proposed Amendment, Madison
said:
'It has been objected also against a bill of
rights, that, by enumerating particular exceptions to the grant of power, it would
disparage those rights which were not placed in that enumeration; and it might follow by
implication, that those rights which were not singled out, were intended to be assigned
into the hands of the General Government, and were consequently insecure. This is one of
the most plausible arguments I have ever heard urged against the admission of a bill of
rights into this system; but, I conceive, that it may be guarded against. I have attempted
it, as gentlemen may see by turning to the *490 last clause of the fourth
resolution (the Ninth Amendment).' I Annals of Congress 439 (Gales and Seaton ed. 1834).
Mr. Justice Story wrote of this argument
against a bill of rights and the meaning of the Ninth Amendment:
'In regard to . . . (a) suggestion, that the
affirmance of certain rights might disparage others, or might lead to argumentative
implications in favor of other powers, it might be sufficient to say that such a course of
reasoning could never be sustained upon any solid basis . . . . But a conclusive answer
is, that such an attempt may be interdicted (as it has been) by a positive declaration in
such a bill of rights that the enumeration of certain rights shall not be construed to
deny or disparage others retained by the people.' II Story, Commentaries on the
Constitution of the United States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth
Amendment:
'This clause was manifestly introduced to
prevent any perverse or ingenious misapplication of the wellknown maxim, that an
affirmation in particular cases implies a negation in all others; and, e converso, that a
negation in particular cases implies an affirmation in all others.' Id., at 651.
These statements of Madison and Story make
clear that the Framers did not intend that the first eight amendments be construed to
exhaust the basic and fundamental rights which the Constitution guaranteed to the people.
[Fn5]
Fn5. The Tenth Amendment similarly made clear
that the States and the people retained all those powers not expressly delegated to the
Federal Government.
While this Court has had little occasion to
interpret the Ninth Amendment, [Fn6] '(i)t cannot be presumed that any *491 clause
in the constitution is intended to be without effect.' Marbury v. Madison, 1 Cranch 137,
174, 2 L.Ed. 60. In interpreting the Constitution, 'real effect should be given to all the
words it uses.' Myers v. United States, 272 U.S. 52, 151, 47 S.Ct. 21, 37, 71 L.Ed. 160.
The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and
may be forgotten by others, but since 1791 it has been a basic part of the Constitution
which we are sworn to uphold. To hold that a right so basic and fundamental and so
deep-rooted in our society as the right of privacy in marriage may be infringed because
that right is not guaranteed in so many words by the first eight amendments to the
Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.
Moreover, a judicial construction that this fundamental right is not protected by the
Constitution because it is not mentioned in explicit terms by one of the first eight
amendments or elsewhere in the Constitution would violate the Ninth Amendment, which
specifically states that *492 '(t)he enumeration in the Constitution, of certain
rights shall not be construed to deny or disparage others retained by the people.'
(Emphasis added.)
Fn6. This Amendment has been referred to as
'The Forgotten Ninth Amendment,' in a book with that title by Bennett B. Patterson (1955).
Other commentary on the Ninth Amendment includes Redlich, Are There 'Certain Rights . . .
Retained by the People'? 37 N.Y.U.L.Rev. 787 (1962), and Kelsey, The Ninth Amendment of
the Federal Constitution, 11 Ind.L.J. 309 (1936). As far as I am aware, until today this
Court has referred to the Ninth Amendment only in United Public Workers v. Mitchell, 330
U.S. 75, 94-95, 67 S.Ct. 556, 566-567, 91 L.Ed. 754; Tennessee Electric Power Co. v. TVA,
306 U.S. 118, 143-144, 59 S.Ct. 366, 372, 83 L.Ed. 543; and Ashwander v. TVA, 297 U.S.
288, 330-331, 56 S.Ct. 466, 475, 80 L.Ed. 688. See also Calder v. Bull, 3 Dall.
386, 388, 1 L.Ed. 648; Loan Ass'n v. City of Topeka, 20 Wall. 655, 662-663, 22 L.Ed. 455.
In United Public Workers v. Mitchell, supra,
330 U.S. at 94-95, 67 S.Ct. at 567, the Court stated: 'We accept appellant's contention
that the nature of political rights reserved to the people by the Ninth and Tenth
Amendments (is) involved. The right claimed as inviolate may be stated as the right of a
citizen to act as a party official or worker to further his own political views. Thus we
have a measure of interference by the Hatch Act and the Rules with what otherwise would be
the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we
look upon due process as a guarantee of freedom in those fields, there is a corresponding
impairment of that right under the Fifth Amendment.'
A dissenting opinion suggests that my
interpretation of the Ninth Amendment somehow 'broaden(s) the powers of this Court.' Post,
at 1701. With all due respect, I believe that it misses the import of what I am saying. I
do not take the position of my Brother Black in his dissent in Adamson v. People of State
of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903, that the entire Bill
of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the
Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state
that the Ninth Amendment constitutes an independent source of rights protected from
infringement by either the States or the Federal Government. Rather, the Ninth Amendment
shows a belief of the Constitution's authors that fundamental rights exist that are not
expressly enumerated in the first eight amendments and an intent that the list of rights
included there not be deemed exhaustive. As any student of this Court's opinions knows,
this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect
certain fundamental personal liberties from abridgment by the Federal Government or the
States. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693; Aptheker
v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659; Kent v. Dulles, 357 U.S. 116, 78 S.Ct.
1113; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900; NAACP v. State of
Alabama, 357 U.S. 449, 78 S.Ct. 1163; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792;
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. The Ninth
Amendment simply shows the intent of the Constitution's authors that other fundamental
personal rights should not be denied such protection or disparaged in any other way simply
because they are not specifically listed in the first eight constitutional amendments. I
do not see how this broadens the authority *493 of the Court; rather it serves to
support what this Court has been doing in protecting fundamental rights.
Nor am I turning somersaults with history in
arguing that the Ninth Amendment is relevant in a case dealing with a State's
infringement of a fundamental right. While the Ninth Amendment--and indeed the entire Bill
of Rights--originally concerned restrictions upon federal power, the subsequently
enacted Fourteenth Amendment prohibits the States as well from abridging fundamental
personal liberties. And, the Ninth Amendment, in indicating that not all such liberties
are specifically mentioned in the first eight amendments, is surely relevant in showing
the existence of other fundamental personal rights, now protected from state, as well as
federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view
that the 'liberty' protected by the Fifth And Fourteenth Amendments from infringement by
the Federal Government or the States is not restricted to rights specifically mentioned in
the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94-95, 67
S.Ct. 556, 566, 567, 91 L.Ed. 754.
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.' Snyder v. Com. of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332. The
inquiry is whether a right involved 'is of such a character that it cannot be denied
without violating those 'fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions' . . . .' Powell v. State of Alabama, 287
U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158. 'Liberty' also 'gains content from the
emanations of . . . specific (constitutional) guarantees' and 'from experience with the
requirements of a free society.' Poe *494 v. Ullman, 367 U.S. 497, 517, 81 S.Ct.
1752, 1763, 6 L.Ed.2d 989 (dissenting opinion of Mr. Justice Douglas). [Fn7]
Fn7. In light of the tests enunciated in
these cases it cannot be said that a judge's responsibility to determine whether a right
is basic and fundamental in this sense vests him with unrestricted personal discretion. In
fact, a hesitancy to allow too broad a discretion was a substantial reason leading me to
conclude in Pointer v. Texas, supra, 380 U.S. at 413-414, 85 S.Ct. at 1073, that
those rights absorbed by the Fourteenth Amendment and applied to the States because they
are fundamental apply with equal force and to the same extent against both federal and
state governments. In Pointer I said that the contrary view would require 'this Court to
make the extremely subjective and excessively discretionary determination as to whether a
practice, forbidden the Federal Government by a fundamental constitutional guarantee, is,
as viewed in the factual circumstances surrounding each individual case, sufficiently
repugnant to the notion of due process as to be forbidden the States.' Id., at 413,
85 S.Ct. at 1073.
I agree fully with the Court that, applying
these tests, the right of privacy is a fundamental personal right, emanating 'from the
totality of the constitutional scheme under which we live.' Id., at 521, 81 S.Ct.
at 1765. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 478,
48 S.Ct. 564, 572, 72 L.Ed. 944, comprehensively summarized the principles underlying the
Constitution's guarantees of privacy:
'The protection guaranteed by the (Fourth and
Fifth) amendments is much broader in scope. The makers of our Constitution undertook to
secure conditions favorable to the pursuit of happiness. They recognized the significance
of man's spiritual nature, of his feelings and of his intellect. They knew that only a
part of the pain, pleasure and satisfactions of life are to be found in material things.
They sought to protect Americans in their beliefs, their thoughts, their emotions and
their sensations. They conferred, as against the government, the right to be let
alone--the most comprehensive of rights and the right most valued by civilized men.'
*495 The Connecticut statutes here
involved deal with a particularly important and sensitive area of privacy--that of the
marital relation and the marital home. This Court recognized in Meyer v. Nebraska, supra,
that the right 'to marry, establish a home and bring up children' was an essential part of
the liberty guaranteed by the Fourteenth Amendment. 262 U.S., at 399, 43 S.Ct. at 626. In
Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, the Court held unconstitutional
an Oregon Act which forbade parents from sending their children to private schools because
such an act 'unreasonably interferes with the liberty of parents and guardians to direct
the upbringing and education of children under their control.' 268 U.S., at 534-535, 45
S.Ct. at 573. As this Court said in Prince v. Massachusetts, 321 U.S. 158, at 166, 64
S.Ct. 438, at 442, 88 L.Ed. 645, the Meyer and Pierce decisions 'have respected the
private realm of family life which the state cannot enter.'
I agree with Mr. Justice Harlan's statement
in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 551-552, 81 S.Ct. 1752, 1781:
'Certainly the safeguarding of the home does not follow merely from the sanctity of
property rights. The home derives its pre-eminence as the seat of family life. And the
integrity of that life is something so fundamental that it has been found to draw to its
protection the principles of more than one explicitly granted Constitutional right. . . .
Of this whole 'private realm of family life' it is difficult to imagine what is more
private or more intimate than a husband and wife's marital relations.'
The entire fabric of the Constitution and the
purposes that clearly underlie its specific guarantees demonstrate that the rights to
marital privacy and to marry and raise a family are of similar order and magnitude as the
fundamental rights specifically protected.
Although the Constitution does not speak in
so many words of the right of privacy in marriage, I cannot believe that it offers these
fundamental rights no protection. The fact that no particular provision of the
Constitution *496 explicitly forbids the State from disrupting the traditional
relation of the family--a relation as old and as fundamental as our entire
civilization--surely does not show that the Government was meant to have the power to do
so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal
rights such as this one, which are protected from abridgment by the Government though not
specifically mentioned in the Constitution.
My Brother STEWART, while characterizing the
Connecticut birth control law as 'an uncommonly silly law,' post, at 1705, would
nevertheless let it stand on the ground that it is not for the courts to "substitute
their social and economic beliefs for the judgment of legislative bodies, who are elected
to pass laws." Post, at 1705. Elsewhere, I have stated that '(w)hile I quite
agree with Mr. Justice Brandeis that . . . 'a . . . State may . . . serve as a laboratory;
and try novel social and economic experiments,' New State Ice Co. v. Liebmann, 285 U.S.
262, 280, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (dissenting opinion), I do not believe that
this includes the power to experiment with the fundamental liberties of citizens . . . .'
[Fn8] The vice of the dissenters' views is that it would permit such experimentation by
the States in the area of the fundamental personal rights of its citizens. I cannot agree
that the Constitution grants such power either to the States or to the Federal Government.
Fn8. Pointer v. Texas, supra, 380 U.S.
at 413, 85 S.Ct. at 1073. See also the discussion of my Brother Douglas, Poe v. Ullman, supra,
367 U.S. at 517-518, 81 S.Ct. at 1763 (dissenting opinion).
The logic of the dissents would sanction
federal or state legislation that seems to me even more plainly unconstitutional than the
statute before us. Surely the Government, absent a showing of a compelling subordinating
state interest, could not decree that all husbands and wives must be sterilized after two
children have been born *497 to them. Yet by their reasoning such an invasion of
marital privacy would not be subject to constitutional challenge because, while it might
be 'silly,' no provision of the Constitution specifically prevents the Government from
curtailing the marital right to bear children and raise a family. While it may shock some
of my Brethren that the Court today holds that the Constitution protects the right of
marital privacy, in my view it is far more shocking to believe that the personal liberty
guaranteed by the Constitution does not include protection against such totalitarian
limitation of family size, which is at complete variance with our constitutional concepts.
Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntary birth
control by married persons is valid, then, by the same reasoning, a law requiring
compulsory birth control also would seem to be valid. In my view, however, both
types of law would unjustifiably intrude upon rights of marital privacy which are
constitutionally protected.
In a long series of cases this Court has held
that where fundamental personal liberties are involved, they may not be abridged by the
States simply on a showing that a regulatory statute has some rational relationship to the
effectuation of a proper state purpose. 'Where there is a significant encroachment upon
personal liberty, the State may prevail only upon showing a subordinating interest which
is compelling,' Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4
L.Ed.2d 480. The law must be shown 'necessary, and not merely rationally related to, the
accomplishment of a permissible state policy.' McLaughlin v. State of Florida, 379 U.S.
184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222. See Schneider v. State of New Jersey, Town of
Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155.
Although the Connecticut birth-control law
obviously encroaches upon a fundamental personal liberty, the State does not show that the
law serves any 'subordinating (state) interest which is compelling' or that it is
'necessary *498 . . . to the accomplishment of a permissible state policy.' The
State, at most, argues that there is some rational relation between this statute and what
is admittedly a legitimate subject of state concern--the discouraging of extra-marital
relations. It says that preventing the use of birth-control devices by married persons
helps prevent the indulgence by some in such extra-marital relations. The rationality of
this justification is dubious, particularly in light of the admitted widespread
availability to all persons in the State of Connecticut, unmarried as well as married, of
birth-control devices for the prevention of disease, as distinguished from the prevention
of conception, see Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582. But, in any event, it is
clear that the state interest in safeguarding marital fidelity can be served by a more
discriminately tailored statute, which does not, like the present one, sweep unnecessarily
broadly, reaching far beyond the evil sought to be dealt with and intruding upon the
privacy of all married couples. See Aptheker v. Secretary of State, 378 U.S. 500, 514, 84
S.Ct. 1659, 1667; NAACP v. State of Alabama, 377 U.S. 288, 307-308, 84 S.Ct. 1302, 1313,
1314, 12 L.Ed.2d 325; McLaughlin v. State of Florida, supra, 379 U.S. at 196, 85
S.Ct. at 290. Here, as elsewhere, '(p)recision of regulation must be the touchstone in an
area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438,
83 S.Ct. 328, 340. The State of Connecticut does have statutes, the constitutionality of
which is beyond doubt, which prohibit adultery and fornication. See Conn.Gen.Stat. ss
53-218, 53-219 et seq. These statutes demonstrate that means for achieving the same
basic purpose of protecting marital fidelity are available to Connecticut without the need
to 'invade the area of protected freedoms.' NAACP v. State of Alabama, supra, 377
U.S. at 307, 84 S.Ct. at 1314. See McLaughlin v. State of Florida, supra, 379 U.S.
at 196, 85 S.Ct. at 290.
Finally, it should be said of the Court's
holding today that it in no way interferes with a State's proper regulation *499 of
sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting
opinion in Poe v. Ullman, supra, 367 U.S. at 553, 81 S.Ct. at 1782.
'Adultery, homosexuality and the like are
sexual intimacies which the State forbids . . . but the intimacy of husband and wife is
necessarily an essential and accepted feature of the institution of marriage, an
institution which the State not only must allow, but which always and in every age it has
fostered and protected. It is one thing when the State exerts its power either to forbid
extra-marital sexuality . . . or to say who may marry, but it is quite another when,
having acknowledged a marriage and the intimacies inherent in it, it undertakes to
regulate by means of the criminal law the details of that intimacy.'
In sum, I believe that the right of privacy
in the marital relation is fundamental and basic--a personal right 'retained by the
people' within the meaning of the Ninth Amendment. Connecticut cannot constitutionally
abridge this fundamental right, which is protected by the Fourteenth Amendment from
infringement by the States. I agree with the Court that petitioners' convictions must
therefore be reversed.
Griswald v. Connecticut
Court Cases
Index
Court's Opinion, Justice Douglas
Justice White's concurring opinion
Justice Harlan's concurring opinion
Justice Goldberg's concurring opinion
Justice Black's dissenting opinion
Justice Stewart's dissenting opinion
|
