Remarks of the Honorable
Ellen Ash Peters
Chief Justice, Retired, Connecticut Supreme Court
Supreme Courtís 200th Anniversary
June 6, 2008
Griswold v. Connecticut,
381 U.S. 479 (1965), has historical significance for many reasons.
It is important to note, at the outset, with some regret, that searching
constitutional analysis by the Connecticut Supreme Court is not one of
the reasons for celebrating the Griswold case. Decided in 1964,
State of Connecticut v. Griswold summarily upheld the convictions of
Estelle Griswold and Lee Buxton for having violated an 1879 statute that
made it a crime to provide or to prescribe contraceptives. Although the
opinion of the court alludes to an evidentiary issue, there was no real
question that the defendants had violated the statute. Griswold was the
director and Buxton was the medical consultant of a Planned Parenthood
center in New Haven that was providing advice, instruction and
contraceptive materials to married women. Several women had come
forward to acknowledge having received these services.
In response to the defendants' constitutional claim, the Connecticut
Supreme Court relied on the recurrent refusal of the General Assembly to
amend or to repeal the statute and the court's own past cases enforcing
the statute as written. In light of that history, the court concluded,
categorically, without any further analysis under either the federal or
the state constitution, that "the conviction of the defendants was not
an invasion of their constitutional rights."
litigation had been initiated by Catherine Roraback, a 1948 graduate of
the Yale Law School, who was an energetic and enterprising public
spirited lawyer. Indeed, after a lifetime of extraordinary legal
service, she died only last fall at the age of 87. One reason that
Griswold v. Connecticut is significant is that it is part of
her extraordinary legacy to the people of this state.
In the Griswold appeal to
the United States Supreme Court, Roraback was joined by Thomas Emerson
of the Yale Law School. Tom Emerson and I were colleagues on the Yale
faculty, although he was much my senior. I can attest to the fact that
he was always soft-spoken and a good listener. That mild manner was
somewhat deceiving. Tom Emerson was not only an incisive scholar but
also a passionate and active defender of civil rights and civil
liberties. Significantly, he not only taught about the first
amendment; he lived it.
History tells us that
Roraback and Emerson prevailed in their argument that married women have
a constitutional right to access birth control devices and that a state
statute to the contrary cannot, therefore, be allowed to stand. By
identifying a constitutionally cognizable right to privacy, the decision
of the United States Supreme Court in Griswold v. Connecticut
became the fountainhead for far-reaching federal constitutional
developments with respect to abortion rights, gay rights and the right
to die. In addition, it has served as an important precedent for the
development of state constitutional law on the right of privacy in gay
rights cases in Massachusetts and, just recently, in California.
In light of this significant success story, it is interesting that the
opinions of the United States Supreme Court in Griswold v.
Connecticut have not enjoyed such a good press. In particular, the
opinion of Justice William O. Douglas for the 7-2 majority has
repeatedly been criticized, indeed criticized severely, even by those of
us who applaud the outcome.
The often-noted difficulty with the Douglas majority opinion is
discomfort with its central proposition that various specific provisions
in the federal Bill of Rights have "a penumbra where privacy is
protected from governmental intrusion." A penumbra is an uncomfortable
touchstone for constitutional rights. Reliance on a penumbra is
difficult for those of us who are not constitutional law scholars. My
scholarly interests in commercial law were differently grounded.
Finally, although it is
easy to agree with Justice Douglas that we would not, in his oft-quoted
words, "allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives," that
evocative description also is troublesome. Use of contraceptives
was not, in fact or law, the issue in Griswold v. Connecticut.
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