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.