Griswold V. Connecticut

Griswold v. Connecticut

381 U.S. 479 (1965)

Docket Number: 496

Argued: March 29, 1965

Decided: June 7, 1965

Subjects: Judicial Power: Standing to Sue, Personal Injury

Facts of the Case

Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception.

Question Presented

Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?

Conclusion

Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

v. Wade

410 U.S. 113 (1973)

Docket Number: 70-18

Decided:January 22, 1973

Reargued:October 11, 1972

Argued:December 13, 1971

Subjects:Privacy: Abortion, Including Contraceptives

Facts of the Case

Roe, a Texas resident, sought to terminate her pregancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall.

Question Presented

Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?

Conclusion

The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.

v. Hardwick

478 U.S. 186 (1986)

Docket Number: 85-140

Argued: March 31, 1986

Decided: June 30, 1986

Subjects: Privacy: Privacy

Facts of the Case

Michael Hardwick was observed by a Georgia police officer while engaging in the act of concensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized homosexual sodomy, Hardwick challanged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.

Question Presented

Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

Conclusion

No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

Lawrence and Garner v. Texas

539 U.S. 558 (2003)

Docket Number: 02-102

Decided: June 26, 2003

Argued: March 26, 2003

Facts of the Case

Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.

Question Presented

Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?

Conclusion

No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.

Can two men make a baby? Researchers say it's possible, but lawmakers must pave the way. By Theresa Pinto Sherer
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January 31, 2001 | It has been close to four years since the replication of Dolly the sheep -- not a very long time considering the lumbering progress of science. Still, cloning now seems like an old, tired subject that pops up periodically in the media, a run-of-the-mill hot-button topic that has become a part of the American glossary of debatable issues, like gay rights or abortion.

Not coincidentally, each of these issues is inherently tied to the other: All involve life choices that revolve around sex, our national obsession. Of course, humanity's preoccupation with sex is just a cloak for its true obsession with reproduction or, more precisely, immortality.

Most evolutionary biologists will tell you that all organisms are obsessed with reproduction and passing on DNA; yet I doubt the road to procreation for other sentient beings that may exist in the universe, regardless of their sophistication or culture, is as littered with condoms, sex toys, birth control pills, test tubes, child support payments and abortion clinics as our own.

For humans today, the rites of reproduction, not to mention the rights to reproduction, are more complex and more contentious than ever. But for the most part, creating a child still requires a woman and a man or, to be more specific, the DNA of an egg and the DNA of a sperm.

Yet when Dolly was cloned a link emerged between cloning and reproduction, and predictably, a controversy ensued. On the edges of it were people like Richard Seed, a physicist who wanted to establish a cloning clinic to provide babies for infertile couples. And then there were the Raelians, a cultish religious group in Canada dedicated to the belief that extraterrestrial scientists seeded this planet by way of cloning. (They have recently announced plans to clone a deceased child.)

Meanwhile, Randolfe Wicker, an unofficial spokesman for human cloning who founded the Clone Rights United Front, mixes science and gay rights activism. Currently the director of the Human Cloning Foundation, Wicker argues for human cloning as a means to copy himself in the name of reproduction and feels strongly that cloning should be used by any and all persons who wish to do the same. Clearly, with Dolly, the path to immortality has forked, creating options in reproduction that go beyond or around the "man and wife" route and focus on mixing DNA.

A plausible reproductive option that involves the manipulation of DNA is a laboratory technique called egg nuclear transfer. It has been suggested that this method of manipulating the DNA of human eggs now be applied to infertility cases in which the mitochondria (essential structures found in every human cell) of a woman's eggs are damaged. Egg nuclear transfer, when used for infertility, would entail removing the DNA of the impaired egg and placing it into an enucleated egg -- an egg that has been cleaned of its own DNA and contains healthy mitochondria.

Because it involves human cloning, egg nuclear transfer, and any further research that encompasses it, are illegal under the current laws of many countries. But legislation that would allow nuclear transfer research for infertility treatment was voted into law by the British Parliament late last month, igniting a debate about how use of the technique might be expanded to include controversial applications.

Dr. Calum MacKellar, a bioethicist associated with the University of Edinburgh, has been outspoken about egg nuclear transfer, expressing a concern that it could be used to "mate" the genetic material from two sperm cells to create a biological child from two men. Theoretically, the technique could be used to introduce sperm DNA into an enucleated egg, fertilize this "male egg" with another sperm and gestate the resulting embryo in a surrogate mother. (Of course, this could be done with the DNA of two female eggs as well.)

As simple as it might sound, this scenario is still somewhat remote, since the creation and fertilization of a male egg would require researchers to overcome certain biological obstacles, not just legislative and psychological ones. One such impediment would be the automatic response that mammalian gametic DNA seems to exhibit in which it recognizes the DNA of the opposite sex, otherwise known as imprinting. Nevertheless, MacKellar is concerned that loopholes in the British legislation allow research that could bring about the male egg. In the draft of a recent article, he asks rhetorically: "Would society accept such motherless children?"

Biologically speaking, egg nuclear transfer used for homosexual reproduction would closely mimic heterosexual reproduction, so, in essence, the resulting children would not be without the idealized two-parent home. The method does not replicate exact copies of humans, but instead allows all the necessary chance and mixing up of DNA that is standard in heterosexual reproduction, although the DNA doing the mixing would be sperm originated or egg originated only.

"That's creepy" was the response of a gay friend of mine when I told him of the idea for male eggs. But he went on to say that he's not against it, since he supports any and all varieties of reproductive freedom. Would he use it himself? "Perhaps, if it weren't prohibitively costly." Nevertheless, he's not overly enthusiastic about the concept, as in, "I don't feel liberated by it." Probably because he's not determined to have children of his own genetic makeup and views adoption or surrogacy as perfectly suitable alternatives.

Felicia Park-Rogers, director of Children of Lesbians and Gays Everywhere in San Francisco, agrees with my gay friend. She acknowledges the human desire for a child of one's own flesh and blood and advocates "as many ethical options as possible" to create a family. Though she is resolutely opposed to human cloning for reproduction -- which she views as an act of pure narcissism -- the bearing of children by way of egg nuclear transfer, she says, is "a perfectly ethical option" for gay and straight parents.

Since most humans react with knee-jerk revulsion to the words "cloning" and "reproduction" when used in close proximity, egg nuclear transfer for purposes of reproduction will be a hard sell. A gut-level aversion to cloning for reproduction may be somewhat instinctive, at least as far as evolution is concerned: Human cloning technology in the name of medical research is expected to remain outside the process of procreation; cloning as a mode of reproduction muscles into the natural order of the species.

Nevertheless, it is clear that much of the queasiness about human cloning for purposes of reproduction will be motivated by homophobia. Protests against male eggs will not just be about the issue of cloning but about homosexuality and the rights of gay men and women to have biological children.

It is hard to imagine many people being inimical to the newly mandated purpose of egg nuclear transfer, which is to give infertile couples a chance to start a family. But are we ready to view homosexual couples as clinically infertile? Will we define basic human reproductive rights as being available to everyone, regardless of sexual orientation?

During our correspondence, it became very clear that MacKellar is against the use of egg nuclear transfer by homosexual couples to create genetic offspring -- for "theological reasons." Park-Rogers, on the other hand, asserts that "any time we're looking at new ways to reproduce, we need to look at what's [ethically] best for families and children. So I would hate to see homophobic discrimination take part in blocking this in any way."

The scientific community spends millions of dollars on infertility research; couples spend millions on infertility treatment. Infertile couples everywhere have moral, ethical and legislative support as they struggle to have offspring. How would we justify the limitation of this expense and support to heterosexuals? Who deserves to have genetic offspring?

Those who have challenged the prerogative of infertile couples to have children often allude to concerns about overpopulation, the unnaturalness of reproduction via a laboratory setting or the great numbers of orphaned children available for adoption. But as MacKellar points out, most of us are driven to have offspring who look and act like us. Whether this is due to our quest for immortality or the hypothetical selfish genes (the idea that DNA has devised ways to perpetuate itself regardless of the organisms housing it), it is a drive that exists and cannot be denied.

Some may argue that a government -- any government -- does not have jurisdiction over a person's right to bear children and should not pass laws to govern a person's DNA. But like it or not, legislation will dictate which direction we end up taking in this matter. (Even as I write this, MacKellar notifies me that scientists have proposed another way in which men could make babies of their own -- by reprogramming cells from cloned embryos to change what was to become sperm to become an egg.)

Eventually, lawmakers will have to give in to the pressures of scientific progress, if not progressive thinking. Yet even if researchers are permitted to bring these technologies into reality, it could be four more years -- maybe fewer but most likely more -- until anyone, even heterosexual couples, would benefit from them. One hopes that, in that time, a principle of fairness will prevail and the law will be clear, so that use of reproductive technologies will center not on discriminatory doctrines but on the fundamental rights of freedom and choice.

"The Trouble With Normal" by Michael Warner, A sex activist defends the right of gay men -- and everybody else -- to screw around.
By Peter Kurth
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December 08, 1999 | C ast your mind back a couple of years and you might remember Sex Panic, the "pro-queer, pro-feminist, anti-racist direct action group" founded in New York in 1997 "to defend public sexual culture" in the age of AIDS. The year was something of a watershed in the American gay-rights movement, exposing the rift between a vocal band of conservative gay publicists who were calling for same-sex marriage rights and an end to "anonymous promiscuity" in the gay community and the movement's traditional activist wing, which remained anchored in the politics of Stonewall, with its ethos of confrontation, defiance and public celebration of sexual differences.

"A whole lot of things were happening and there wasn't any resistance," according to Sex Panic's Michael Warner, a journalist, editor and professor of English who teaches American literature and queer studies at Rutgers. "Bars and sex clubs were being closed, and increasing numbers of gay men being arrested on the streets of New York under public lewdness charges -- very old-fashioned kinds of intimidation. And there was no community protest. One of the reasons that there's no protest is that the only prominent gay spokesmen are a handful of media celebrity journalists who are, in fact, encouraging this kind of crackdown."

Warner didn't need to name names. Of the "celebrities" in question, Larry Kramer,Andrew Sullivan, Gabriel Rotello and Michelangelo Signorile were and are the best-known -- especially Sullivan, whose 1995 "Virtually Normal" urged the complete abandonment of gay identity politics and argued that marriage is "the highest form of human happiness," "a profoundly humanizing, traditionalizing step" and "ultimately the only reform that truly matters" for gay men and lesbians. It was time for gays to grow up, Sullivan wrote, to become "mature" and "responsible," to throw off the mantle of victimhood and join the ranks of the respectably coupled. Let civil rights and hate crimes take care of themselves -- only marriage, with its state stamp of legitimacy and regulatory power, could guarantee "the basic bonds of human affection and commitment that make life worth living."