Private: Privacy vs. Liberty: Griswold and the LGBT Community

by Anthony S. Winer, Professor of Law, William Mitchell College of Law

*This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

Griswold v. Connecticut is justly celebrated for discerning the constitutional right to privacy, and thus constitutional protection for reproductive freedom.  It not only protected access to contraceptives, but also provided the foundation for the later cases constitutionally protecting access to abortion.  Moreover, Griswold helped instill constitutional respect for the broader concerns of “marriage, procreation, and family relationships,” and ultimately for the even broader concern of “personal dignity and autonomy.”

However, where the privacy and personal autonomy of LGBT people are concerned, the legacy of Griswold is more nuanced.  Doctrinal developments following Griswold constrained gay rights in some respects, and in some respects fortified them.  And the way in which the Supreme Court has been treating LGBT rights recently may presage salutary changes to come.

The most negative aspect of the Griswold legacy for LGBT people is that it did nothing to forestall the disaster of Bowers v. Hardwick.  This was the 1986 case in which the Supreme Court held that Georgia’s anti-sodomy law did not protect sexual relations between two men (nor presumably between two women).  When Bowers was decided, Griswold was already 21 years old, and Roe v. Wade had already passed its thirteenth anniversary.  Cases applying the right to privacy were not in short supply, but the Court majority could not bring itself to allow lesbians and gay men to share in the newly discerned freedoms.  There was no principled reason for Bowers to come out differently from the contraception or abortion cases.  Bowers seemed to create a “special case,” perhaps founded on homophobia, excluding lesbian and gay rights from the zone of privacy that protected others.

But Bowers was not the whole story for privacy and LGBT rights after Griswold.  The more general effect of Griswold, ultimately instilling protection for “personal dignity and autonomy,” gradually suffused the judicial sphere in various ways.  For example, in 1992 (six years after Bowers) the Kentucky Supreme Court held that the Kentucky sodomy statute violated the right of privacy provided by the Kentucky constitution.  And still six more years after that, the Supreme Court of Georgia ― the state from which the Bowers case had come ― held that the very statute sustained by the Supreme Court in Bowers violated the Georgia constitution’s right to privacy, if not that of the federal Constitution.

It was five years after the Georgia Supreme Court’s determination that the United States Supreme Court finally overruled its retrograde holding in Bowers.  This was a welcome development, but the manner in which Bowers was overruled did not provide a complete vindication for Griswold’s idea of privacy.

Lawrence v. Texas, the 2003 Supreme Court case that overruled Bowers, did not do so on explicit privacy grounds.  In Lawrence, the Supreme Court used the word “liberty” 25 times in 17 pages, while using the word “privacy” only three times.  While the Court referenced the idea of “private” behavior more frequently, its doctrinal focus was on liberty rather than privacy per se.  The Court again used the trope of “liberty” as a basis for its result in Windsor v. United States.

So, where LGBT people are concerned, the Griswold privacy doctrine probably provides at least a subliminal backdrop for the assertion of their rights.  But Griswold privacy has not been the explicit bulwark for them under the federal Constitution that it has been for their heterosexual friends and family members.

I can only be brief in conjecturing why this might have been.  Griswold and the privacy doctrine have never been without critics.  Conservatives have objected that contraceptives are purchased in public, and even more irately, that abortions are proffered and performed through market mechanisms that can be said to have a public character.  Originalists have disparaged the “emanations from penumbras” approach used by the Griswold majority as being unfaithful to the constitutional text and unheeding of judicial restraint.  A feminist perspective can assert, among other things, that the privacy doctrine too easily furnishes a secluded space in which oppressions of women can hold sway unobserved by the public eye.

The Supreme Court in Lawrence, in shifting towards a more total idea of “liberty” and away from privacy, may have had some of these criticisms in mind.  If this shift is successful, it will produce alternative conceptions of liberty that steer clear of at least some criticisms of privacy.  In that event, the “special case” treatment to which LGBT rights were subjected after Griswold may end up having a positive result.  The Supreme Court may end up refining the interests protected by the privacy doctrine so as to render them even safer and more secure.

Individual liberties, LGBTQ Equality, Reproductive Rights, Supreme Court, Women's rights