Griswold v. Connecticut

Justice Goldberg agreed that marital privacy is a fundamental liberty protected against state interference by the Fourteenth Amendment. He emphasized that Fourteenth Amendment liberty is not limited to rights expressly listed in the first eight amendments.

He relied especially on the Ninth Amendment. In his view, the Amendment does not independently create a judicially enforceable right or itself apply against the States; rather, it confirms the Framers' understanding that enumerating certain rights does not deny the existence of other fundamental rights retained by the people.

Judges determining whether an unenumerated liberty is fundamental are not free to act on private preferences. They must look to traditions and the collective conscience of the nation and ask whether the claimed liberty is rooted in the basic principles of liberty and justice underlying American institutions.

Marital privacy met that standard. The Court's family-rights cases had already recognized liberty to marry, establish a home, and raise children. Because Connecticut identified no compelling interest that justified criminalizing contraceptive use by married couples, and because less intrusive means existed to deter adultery or fornication, the statute could not stand.

Justice Harlan concurred in the judgment but rejected the majority's reliance on the penumbras of specific Bill of Rights provisions. In his view, the Fourteenth Amendment's Due Process Clause has independent force and should not be restricted to rights found in the text or penumbras of the Bill of Rights.

The proper question was whether the Connecticut law violated values implicit in the concept of ordered liberty. For the reasons he had set out in his Poe v. Ullman dissent, regulation of marital intimacies in this sweeping manner offended the basic liberty protected by due process.

Justice Harlan acknowledged the need for judicial restraint, but he argued that tying due process solely to specific constitutional provisions would not eliminate subjective judging. Sound adjudication instead requires attention to history, the basic values of society, federalism, and separation of powers.

Justice White concluded that, as applied to married couples, the statute deprived them of liberty without due process of law. The liberty protected by the Fourteenth Amendment includes marriage, establishing a home, raising children, and a protected realm of family life into which the State may not enter without substantial justification.

The prohibition placed a grave burden on married couples because it barred contraceptive use regardless of family-planning, health, or even life-preserving concerns. Through the aiding-and-abetting statute, it also denied doctors the ability to provide medical advice and effectively denied poorer residents access to professional contraceptive assistance.

A law that significantly encroaches on such personal liberty requires a compelling or substantial justification and must be reasonably necessary to achieve its stated objective. Connecticut claimed that the ban discouraged illicit sexual relationships, but the Court found that rationale unsupported and largely fanciful as applied to married couples.

Contraceptives remained broadly available in Connecticut, and the State's enforcement against clinics serving married persons did not meaningfully deter premarital or extramarital sex. A more limited law directed at prohibited sexual conduct would serve the asserted objective no less effectively while avoiding the statute's sweeping intrusion on marital liberty.

Justice Black considered the Connecticut law deeply offensive and unwise, but he maintained that its bad policy did not make it unconstitutional. Courts may invalidate legislation only when it violates a specific command of the Federal Constitution, not because judges find the law irrational, oppressive, or contrary to natural justice.

He rejected the majority's general constitutional right of privacy. Specific constitutional provisions protect particular privacy interests, such as the Fourth Amendment's protection against unreasonable searches and seizures, but he believed the Court improperly transformed those distinct guarantees into a broad, free-standing right to invalidate state legislation.

The defendants' activities were conduct, not merely protected speech: they examined patients, prescribed devices, and supplied contraceptives. Justice Black left open the possibility that a prosecution directed solely at speech or advocacy might raise a First Amendment issue, but he found no such violation on these facts.

He also rejected the concurrences' substantive due process and Ninth Amendment theories. In his view, using vague concepts of fundamental fairness, ordered liberty, or retained rights to invalidate legislation would revive the discredited Lochner approach and convert judges into unelected supervisors of legislative policy.

Justice Stewart called Connecticut's law “an uncommonly silly law” and believed contraception within marriage should be left to individual moral, ethical, and religious choice. Nevertheless, he concluded that the Court had not identified a constitutional provision that the statute violated.

He found no relevant infringement of the First, Third, Fourth, or Fifth Amendments: the case involved no restriction on speech as such, no quartering of soldiers, no search or seizure, and no compelled self-incrimination. He also rejected reliance on the Ninth Amendment, which he understood as preserving the principle of limited federal power rather than authorizing federal courts to invalidate state laws.

In Justice Stewart's view, the Court created a general right of privacy without textual or precedential support and did not define its scope. The proper remedy for an unwise state law was political action through Connecticut's elected legislature, not judicial invalidation based on the Justices' views of sound social policy.