Over the past three years, more than 60 lawsuits have been filed in federal court challenging the Affordable Care Act contraceptive coverage benefit. These legal challenges are based on a central theme of today’s conservative movement, which argues contraception is immoral, and that the Supreme Court decision preventing states from criminalizing birth control was wrongly decided. That’s where things stand on the 48th anniversary of Griswold v. Connecticut.
Why now? Why is the right gunning so hard to take down Griswold and gut individuals’ rights to privacy that include keeping the government out of their most intimate decisions? And what has changed legally, to bring this issue to a boil now? As it turns out, the answer has very little to do with contraception and more to do with same-sex marriage. At its core, the legal foundation of personal privacy rights rests in the institution of marriage and family. As older definitions of “traditional families” give way to more expansive realities, including same-sex partnerships, single-parenting, co-parenting, and myriad family arrangements today, conservatives must face a stark legal reality: Without drastically changing the way the courts define issues that once were simply matters of privacy, they will have lost the culture wars. It’s now or never.
The Supreme Court first laid the foundation for an individual right to privacy early in the 20th century in Lochner v. New York, a case that has become synonymous with activist judges looking for any means to support and expand corporate, monied interests. In Lochner the majority relied on the reference to “liberty” in the 14th Amendment’s Due Process Clause to support striking down a New York state law that restricted the number of hours bakers could work each week. The 14th Amendment states that no person “shall be deprived of life, liberty or property, without due process of law.” According to the court majority, the law was an unconstitutional violation of an individual’s privacy rights because the Due Process Clause implicitly guarantees citizens the “fundamental” right to enter into employment arrangements free from state intrusion in this “liberty” interest.
From Lochner, privacy rights more clearly became associated with the home and traditional, patriarchal constructions of family. In Pierce v. Society of Sisters (1925), the court ruled that an Oregon law banning all private education violated the Due Process Clause because it directed how parents may educate their children, infringing upon parents’ fundamental right to rear their children as they see fit. The majority opinion in Pierce lists a series of other privacy rights guaranteed by the Due Process Clause, including “the right of the individual … to marry, establish a home and bring up children … and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
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But it wasn’t until 40 years later, in Griswold, that the Supreme Court turned its attention to whether the Constitution implicitly contains fundamental privacy guarantees that are not dependent on the Due Process Clause. Writing for the majority, Justice William O. Douglas departed from the Lochner line of privacy reasoning and held that a right to privacy exists not because of a specific constitutional provision but rather because it flows from several provisions relating to privacy, to create “penumbras”, or shadows, in which “zones of privacy” exist. Within these zones, the court explained, are other rights, including the right of married couples to determine whether or not to have children.
Two years later the court would again reach the issue of privacy rights in Loving v. Virginia, the famous case that challenged a Virginia law banning interracial marriage. In a unanimous decision, the court ruled the Virginia law violated the 14th Amendment’s Equal Protection Clause, which guarantees all citizens equal protection under the law and thus prohibits the government from discriminating on the basis of race. The court could have stopped there with its analysis, but it didn’t. Instead, it pushed further, moving beyond the obvious issues of racial discrimination to hold that the right to marry is itself protected by the Constitution. By the end of the 1960s, and with the civil rights and anti-war movements smoldering in the background, the Supreme Court’s jurisprudence showed both a slow acceptance of racial equality and a preference for the traditional construction of marriage and family.
Griswold v. Connecticut may have recognized a right of married couples to use contraception, but it wasn’t until March of 1972 in Eisenstadt v. Baird that the Court recognized a corresponding privacy right to use contraception for individuals. “If the right of privacy means anything,” Justice William Brennan wrote, “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The following year, the court famously extended these individual privacy rights even further when, in Roe v. Wade, it established a constitutional right to choose abortion grounded in an individual right to privacy and this legally recognized zone of intimacy that inherently surrounds issues of reproduction but that was no longer immediately anchored in the constructs of traditional marriage.
Court challenges emanating from a growing gay rights movement led to an increasing disconnection between the advancement of individual privacy rights and equality and earlier legal ties to traditional marriage and family. In Bowers v. Hardwick, the court examined a Georgia anti-sodomy statute and considered whether the state’s sodomy ban violated constitutional privacy rights. In a 5-4 ruling, a sharply divided Supreme Court ruled it did not. Writing for the majority, Justice Byron White declared that the earlier privacy cases of Griswold and Loving, concerned “family, marriage or procreation.” But, the court reasoned, it would simply go too far to extend privacy rights to “any kind of private sexual conduct between consenting adults.” Furthermore, the court reasoned, while existing privacy protections concerning marriage or child-rearing were “deeply rooted in this nation’s history and tradition,” the opposite was true of sodomy, which was at one time banned by all states and, at the time of the decision, was still banned by slightly more than half the states.
In a fierce dissent, Justice Blackmun dismissed the majority’s premise that the case ultimately involved a “fundamental right to engage in homosexual sodomy.” Instead, as Justice Blackmun saw it, what the case actually concerned was the “most comprehensive of rights and the right most valued by civilized men, namely, the right to be let alone.” More specifically, he argued, the Constitution guarantees each person, regardless of sexual orientation, the liberty to have consensual intimate relations in his or her own home free from government meddling.
Ten years later, an unlikely ally would pick up on Justice Blackmun’s dissent and move the Supreme Court away from a decision that described homosexual sex as “an infamous crime against nature” and into more tolerant territory. In 1996, in Romer v. Evans, the court heard a challenge to an amendment to the Colorado constitution that nullified local anti-discrimination protections for gay and lesbian individuals and prohibited passage of any such anti-discrimination laws in the future. By a 6-3 vote, the Supreme Court held that the Colorado amendment violated the 14th Amendment guarantee of equal protection, returning the analytical framework of individual privacy rights back to the 14th Amendment and its origins in Lochner. “A state cannot so deem a class of persons a stranger to its laws,” wrote Justice Anthony Kennedy in the majority opinion. In particular, he found, “the [Colorado] amendment imposes a special disability upon [homosexuals],” who are “forbidden the safeguards that others enjoy or may seek without restraint.”
Today we’re waiting to see what direction the court next takes on privacy rights. Sometime this month the Supreme Court will hand down a decision on the constitutionality of both the Defense of Marriage Act and California’s ban on same-sex marriage, Proposition 8. And with the challenges to contraception coverage and abortion rights, we can expect the court to weigh in on those issues as soon as next term.
On the issue of same-sex marriage the Supreme Court is largely behind the times as a majority of Americans support marriage equality. Meanwhile there are unrelenting attacks on contraception and abortion rights. While it appears that on this issue the court also lags behind a majority of Americans who broadly support access to contraception and abortion care, for some reason the “equality” framing that has helped propel acceptance of same-sex marriage has failed to stick when it comes to reproductive rights legacy of Griswold. That is in part because the Supreme Court has moved the contraception and abortion rights legacy of Griswold away from an idea of equal protection under the law and toward one of personal autonomy, which allows culturally conservative hang-ups around female sexuality to permeate the debate.
It is also in part because conservatives have re-appropriated the liberty argument to make a case for an individual religious liberty right to deny women access to contraception, either in insurance coverage, as pharmacists, or through for-profit employment benefits. They have re-appropriated this liberty argument to also claim a right to deny women access to abortion and comprehensive reproductive health care. The question that we have not yet answered is whether the Roberts court is willing to play along. We’ll likely have that answer next year. And in the meantime, the legacy of Griswold v. Connecticut may end up having very little to do with contraception access and almost everything to do with marriage equality.