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Family Law
West Virginia University School of Law
Hamilton, Vivian Eulalia

Family Law
I. Private Family Choices
A. Evolution of the Right to Privacy
1. The Birth of Privacy
A. Meanings of Privacy
Griswold v. Connecticut , 381 U.S. 479, Justice Douglas, 1965
Case Brief
Brief Fact Summary. A Connecticut provision outlawing the counseling of others to use contraception, as well as the use of contraception, was found unconstitutional under strict scrutiny because it violated the Due Process Clause.
Synopsis of Rule of Law. The right of marital privacy lies within the penumbra of the Bill of Rights. Therefore, it is a fundamental right and strict scrutiny is the standard of judicial review.
Facts. Appellant, Ms. Griswold, was the Executive Director of the Planned Parenthood League of Connecticut (“League”). Appellant and the Medical Director for the League gave information and instruction and medical advice to married couples about birth control. Appellant and her colleague were convicted under a Connecticut law which criminalized counseling, and other medical treatment to married persons for purposes of preventing conception. Appellants were found guilty as accessories and fined $100 each. The state appellate courts affirmed.
Issue. Whether the Constitution protects the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?
Held. Yes. Judgment of the state appellate court affirmed. The Bill of Rights has a penumbra expanding the right of privacy. The present case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. It also concerns a law that, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Thus, the Connecticut statute conflicts with the exercise of this right and is therefore null and void.
Dissent. The government has a right to invade one’s privacy unless there is a specific constitutional provision prohibiting such invasion.
The law in this case is a silly one. However, the Court is not asked if it is silly. Rather, the Court is asked whether the law violates the constitution. There is no such general right of privacy in the Bill of Rights. Therefore, this law does not violate the Constitution.
Concurrence. The unenumerated right of privacy in the marital relation is “a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.” Therefore, it is among the fundamental liberties that are protected by the Fourteenth Amendment from infringement by the states.
The proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the 14th Amendment because the enactment violates basic values “implicit in the concept of ordered liberty.” The “liberty” of the Due Process Clause is a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints.
A ban on the use of contraceptives by married couples does not reinforce the state’s ban on illicit sexual relationships.
Discussion. The plurality holding in this case introduced the concept of penumbras in order to expand the liberties of the Bill of Rights to include the right of privacy within the marital relation.
Class Notes
Statute did not allow anyone (and married couples) to be counseled or use contraception
Court holds that states cannot ban the use of contraceptives. Recognized the right of privacy in the marital relationship.
Identifies the right of privacy in the penumbra (aura) of the Bill of Rights.
Dissent argues that unless the right is explicit in the Constitution, the law cannot be overruled.
Right needs to be identified for the type of scrutiny to be determined.
Right to Privacy from governmental interference is only for marital couples.
What does right to privacy mean?
Spatial Privacy (marital bedroom – right of seclusion)
Decisional Privacy (choice & autonomy – right of association/expression)
Questions left:
Is marital status determinitive?
Eisenstadt v. Baird , 405 U.S. 438, Justice Brennan, 1972
Eisenstadt v. Baird
Citation. 405 U.S. 438 (1972)
Brief Fact Summary. Appellee was convicted for exhibiting and distributing contraceptive articles under a law that forbid single as opposed to married people from obtaining contraceptives.
Synopsis of Rule of Law. Dissimilar treatment between married and unmarried persons is unconstitutional when the dissimilar treatment is unrelated to a rational State objective.
Facts. Appellee William Baird was convicted under a Massachusetts State law for exhibiting contraceptive articles and for giving a woman a package of Emko vaginal foam. The Massachusetts Supreme Court set aside the conviction for exhibiting contraceptives on the grounds that it violated Appellee’s First Amendment rights, but sustained the conviction for giving away the foam. The law permitted married persons to obtain contraceptives to prevent pregnancy, but forbid single persons from obtaining them.
Issue. Is there a rational ground for the different treatment of married and unmarried persons under the Massachusetts State law?
Held. The dissimilar treatment of similarly situated married and unmarried persons under the Massachusetts law violates the Equal Protection Clause.
• First, the deterrence of premarital sex cannot be reasonably regarded as the purpose of the law, because the ban has at best a marginal relating to the proffered objective.
• Second, if health is the rationale of the law, it is both discriminatory and overbroad.
• Third, the right to obtain contraceptives must be the same for married and unmarried individuals.
Dissent. Chief Justice Burger. The law is a justified exercise of t

ed parents and guardians to send their children to public school. Appellants appealed the order.
Synopsis of Rule of Law. The 14th Amendment provides a liberty interest in a parent’s or guardian’s right to decide the mode in which their children are educated. State’s may not usurp this right when the questioned legislation does not reasonably relate to a viable state interest.
Facts. Appellee the Society of Sisters, a corporation with the power to establish and maintain academies or schools and Appellee Hill Military Academy, a private organization conducting an elementary, college preparatory, and military training school, obtained preliminary restraining orders prohibiting appellants from enforcing Oregon’s Compulsory Education Act. The Act required all parents and guardians to send children between 8 and 16 years to a public school. The appellants appealed the granting of the preliminary restraining orders.
Issue. Does the Act unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control?
Held. The Act violates the 14th Amendment because it interferes with protected liberty interests and has no reasonable relationship to any purpose within the competency of the state.
• The Appellees have standing because the result of enforcing the Act would be destruction of the appellees’ schools. The state has the power to regulate all schools, but parents and guardians have the right and duty to choose the appropriate preparation for their children.
Discussion. While the state has the right to insure that children receive a proper education, the 14th Amendment provides parents and guardians with a liberty interest in their choice in the mode in which their children are educated.
Class Notes
Oregon Act made compulsory attendance at public schools
Rights of Private schools/organizations for economic freedom and parent’s rights to direct the upbringing of their children.
Court held that State has broad discretion to require education, but cannot require particular schools.
2. The Liberation of Privacy
Lawrence v. Texas , 539 U.S. 558, U.S. Supreme Court, Justice Kennedy, 2003
Brief Fact Summary. The Petitioners, John Geddes Lawrence (“Mr. Lawrence”) and Tyrone Garner (“Mr. Garner”) (collectively referred to as the “Petitioners”), were two adults. The Petitioners were arrested and prosecuted under a Texas state law for