Griswold v. Connecticut (1965): Weigel pt. 2

From George Weigel's provocative essay in First Things on "six moments" from the 1960s that continue to have tremendous impact on today's politics and society.

In 1961, the executive director of the Planned Parenthood League of Connecticut, Estelle Griswold, opened a birth-control clinic in New Haven in collaboration with Dr. C. Lee Buxton, a professor at the Yale School of Medicine. Their purpose was to test the constitutionality of Connecticut’s 1879 law banning the sale of contraceptives, a law that had never been enforced and which the U.S. Supreme Court had recently declined to review....

Griswold and Buxton then appealed to the U.S. Supreme Court, which accepted the case and, in the 1965 decision, Griswold v. Connecticut, struck down both the convictions and the Connecticut statute on the ground that the law violated what Justice William O. Douglas’ majority opinion called “the right to marital privacy.” Justice Douglas conceded that the Constitution did not mention a “right to privacy,” marital or otherwise, but famously opined that such a right was to be discerned in “penumbras formed by emanations” from the Constitution’s enumerated rights....

As Edward Whelan has neatly put it, who knew that contraception could have such generative power? Griswold begat Eisenstadt v. Baird, the 1972 decision in which the court extended the protections of the “right of privacy” to nonmarried couples. Then Eisenstadt begat Roe v. Wade, in which the “right to privacy” was cited to strike down state abortion laws from sea to shining sea, in what Justice Byron White described as an exercise in “raw judicial power.” Roe, in turn, begat Casey v. Planned Parenthood, which positioned the “right to abortion” as a Fourteenth Amendment liberty right. Roe and Casey then begat the 2003 Supreme Court decision in Lawrence v. Texas, which struck down a state antisodomy statute, with Justice Anthony Kennedy making an explicit reference to Griswold’s “right to privacy” as “the most pertinent beginning point” for the line of reasoning that led the Court to Lawrence. And if Eisenstadt, Roe, Casey, and Lawrence were the direct descendants of Griswold, it is not difficult to see how Goodridge v. Department of Public Health, the 2003 Massachusetts Supreme Judicial Court decision mandating so-called “gay marriage,” was a collateral descendant of Justice Douglas’ discovery of a constitutional “right to privacy.”...

Careful observers will note here a profound inversion. If abortion and related life issues are in fact the great civil-rights issues of our time—in that they test whether the state may arbitrarily deny the protection of the law to certain members of the human community—then Griswold eventually led to a situation in which the Democratic and Republican positions on civil rights flipped, with members of today’s Democratic party playing the role that its Southern intransigents played during the glory days of the American civil-rights movement.

George McKenna has an indispensable article on this point...

The Supreme Court was not the only actor in these momentous changes, of course. The invention of the oral contraceptive pill must rank with the splitting of the atom and the unraveling of the DNA double helix as one of the three scientific achievements of the twentieth century with world-historical impact....

[I]n measuring the impact of the Sixties on the politics of 2008, the legal consequences of Griswold must be underscored. Here the Supreme Court began to set in legal concrete the notion that sexual morals and patterns of family life are matters of private choice or taste, not matters of public concern in which the state has a legitimate interest. That this trend should have eventually led to claims that marriage is whatever any configuration of adults-sharing-body-parts declares it to be ought not have been a surprise....