From <i>Griswold</i> to <i>Roe</i> and Beyond (updated following decision in <i>Obergefell</i> )

Justice Harry Blackmun actually didn't say much about Griswold v. Connecticut1 when, seven years later, he wrote the opinion for the 7 to 2 majority in Roe v. Wade.2 (Note that Griswold was also a 7 to 2 opinion. From the perspective of our currently polarized judicial world, we might expect both decisions to have been 5 to 4.) I quote here Justice Blackmun's key passages in Roe, to contextualize the many precedents that he cited to make clear his chain of reasoning; I have added my own explanations of the cases in footnotes.3So that's it—Griswold just one of a long list of decisions by which the Constitution expanded in all directions to encompass ever greater definitions of personal privacy.But we know—and we were reminded in June when the Supreme Court recognized same-sex marriage as a right grounded in the Constitution's protection of “liberty” within the 14th Amendment's Due Process clause,14—that there is a lot more to privacy, and a lot more to Griswold.Citing Griswold in his majority opinion in Obergefell v. Hodges, Justice Kennedy said that the liberties protected by the due process clause “extend to certain personal choices central to individual dignity and autonomy including intimate choices that define personal identity and beliefs.”15 Kennedy went on to say that “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Introducing the central passage from Griswold, its paean to marriage, Kennedy continued: This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. Suggesting that marriage is a right “older than the Bill of Rights, Griswold described marriage this way:“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”16So how do we explain the trajectory of Griswold from contraception within the intimate relationship of marriage, through abortion, and arriving at marriage between two people of the same sex? It is easy to conclude that the expanding resonance of Griswold, beyond the context that produced it, simply followed public opinion. Substantial public majorities supported decriminalization of contraception and abortion at the time of Griswold and Roe, and majority support for same-sex marriage arrived with amazing speed as the issue made its way to the Supreme Court.But as a doctrinal matter, Griswold did something more. What the decision did was invoke the Constitution to break the connection between sex and procreation. To that extent, it was both the most radical and the most relevant case on the list of precedents that Harry Blackmun invoked to arrive at a right to abortion.The sundering of sex and procreation was radical in 1965 and, amazingly, it seems that it's still radical today. Opponents of same-sex marriage claim that the very purpose of marriage is to channel the human sex drive into a legal framework within which a man and a woman conceive and raise children. In this schema, there is no place for same-sex marriage, opponents claim. In fact, they claim more than that—that if the state recognized same-sex marriage, traditional opposite-sex marriage will be inevitably devalued, because it will have forfeited the uniqueness of its claim to social utility. Hundreds of thousands of children are currently being raised by same-sex parents, a fact that was invoked throughout the briefing and argument in Obergefell and was cited prominently by Justice Kennedy in his opinion. “Marriage also affords the permanency and stability important to children's best interests,” he wrote.17The majority opinion makes short shrift of the opponents’ arguments. As for the connection between marriage and procreation, Justice Kennedy wrote: “An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any state. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court of the states have conditioned the right to marry on the capacity or commitment to procreate.”18So we see that, in many ways, the debate over marriage reflected Griswold to the core. The constitutional right not to have children of course encompasses the right to choose parenthood. There are indications that the next battle for marriage equality will take place along the frontier of assisted reproductive technology, such as surrogacy, typically used by same-sex couples who want to become parents. Some opponents of same-sex marriage who have given up that fight are now trying to limit same-sex couples’ access to assisted reproduction.As Douglas NeJaime, a leading scholar in this area, has recently written in the Yale Law Journal: “Here, Griswold's meaning may shift from the fairly limited nonprocreative view to a more expansive view, driven in part by the logic of same-sex marriage, that recognizes the equality and liberty interests at stake in decisions regarding not simply whether, but how, to procreate.”19And that, too, will be Griswold.