Remarks of the Hon. Ellen Ash Peters, 06/06/08

Remarks of the Honorable Ellen Ash Peters
Chief Justice, Retired, Connecticut Supreme Court
Supreme Court’s 200th Anniversary
June 6, 2008

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Judges' Corner

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."

The Connecticut 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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