Constitution right of privacy is protected from government
We do not sit as a super-legislature to determine the propriety
of laws that touch economic problems, business affairs, or
Operates on an intimate relation of husband and wife
However, this law operates directly on an intimate relation of
husband and wife and their counselor's role in one aspect of
Constitutional protected rights not expressly in the Bill of
Several fundamental rights are constitutionally protected even
though they are not expressly mentioned in the Bill of Rights.
These include the right to educate one's child in the school of
the parent's choice;
the right to study language in private school; and
the freedom to associate.
Specific guarantees in the Bill of Rights have penumbras
(Creates Zone of Privacy)
They guarantees that help give them life and substance.
They create zones of privacy.
The right of association.
This a freedom not explicitly mentioned in the Constitution
Its prohibition against the
quartering of soldiers in any house in time of peace
without the consent of the owner is another facet of that
Explicitly affirms the right of the
people to be secure
in their persons, houses, papers, and effects,
against unreasonable searches and seizures.
Creates a penumbra that protects privacy interests.
enables the citizen to
create a zone of privacy
which government may not force him to surrender to his
Provides that the enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others
retained by the people.
- In This Case - Married couples relationship lies within the
zone of privacy
The present case concerns a relationship lying within the zone
of privacy created by several fundamental constitutional
- Goal is achieved by maximum destructive impact upon marital
Connecticut's law seeks to achieve its goals by means having a
maximum destructive impact upon the marital relationship.
- Overbroad statute
The law sweeps unnecessarily broadly and thereby invades an area
of protected freedoms.
Concur - Justice Goldberg
Personal rights are not confined to specific terms of the Bill
Marital privacy is protected, but not explicitly listed in the
Liberty embraces the right of marital privacy, although that
right is not explicitly listed in the Constitution.
Ninth Amendment additional fundamental rights not in Bill of
My position is supported by the Ninth Amendment, which reveals
that the Framers believed there are additional fundamental
rights, protected from government infringement, which are not
listed in the Bill of Rights.
This law would ignore the Ninth Amendment
Allowing the fundamental right of marital privacy to be
infringed by the State would ignore and give no effect to the
Strict Scrutiny Approach
Rather, the State may
prevail only upon showing a compelling interest, and the law
must be necessary to accomplish that interest.
Does not meet strict scrutiny, could tailor it.
Connecticut has not, and cannot, meet this strict test.
Connecticut's purported purpose for the law, in preventing
extra-marital relations, can be served by a more discriminately
tailored statute, which does not sweep unnecessarily broadly.
Concur - Justice Harlan
Does the statute infringe on the Due Process Clause
The proper inquiry is whether the statute infringes the Due
Process Clause because it violates basic values implicit in the
concept of ordered liberty.
Statute is intolerable and unjustifiable invasion
Connecticut's contraception statute is an intolerable and
unjustifiable invasion of privacy in the conduct of the most
intimate concerns of an individual's life.
Must pass strict scrutiny
In order to be constitutional, the statute must pass a strict
Connecticut does not even suggest a justification for the
intrusive means it has chosen to effectuate its policy.
Concur - Justice White
Deprives married couples of liberty without due process
The Connecticut statute deprives married couples of liberty
without due process.
The statute bears a substantial burden of justification when
attacked under the 14th Amendment.
Invades a protected area of privacy
An examination of the justification cannot be avoided, however,
by saying that the statute invades a protected area of privacy.
If reasonably necessary, then not invalid
Such statutes, if reasonably necessary for the effectuation of a
legitimate and substantial state interest, and not arbitrary and
capricious in application, are not invalid.
Connecticut contends the statute serves the State's policy
against all forms of promiscuous or illicit sexual
Punishes married couples
But I fail to see how the ban on contraceptives by married
couples reinforces the State's ban on illicit sexual
At most, the broad ban is of marginal utility to the declared
find nothing in the record justifying the sweeping scope of the
Dissent - Justice Black
The law is every bit as offensive to me as it is to my Brethren.
Government has to invade privacy, UNLESS prohibited by some
specific constitutional provision.
The concurrences that rely on the Ninth Amendment and due
process merely use different words
to claim the power to invalidate any legislative act
which the judges find irrational, unreasonable, or offensive.
Legislature should make such decisions, which they did in this
The power to make such decisions is legislative.
The Ninth Amendment was passed to assure the people that the
Constitution was intended to limit the Federal Government to the
powers expressly or implicitly granted.
reject the philosophy that this Court has a duty to keep the
Constitution in tune with the times.
Subjective considerations of "natural justice" are dangerous,
whether used to enforce the Court's view about personal or
So far as I am concerned, Connecticut's law is not forbidden by
the Constitution as it was written.
Dissent - Justice Stewart
This is a silly law
However, we are not asked to say whether we think the law is
unwise, or even asinine.
We are asked to hold that it violates the Constitution, and
this I cannot do.
I find nothing in the Bill of Rights to invalidate the
Connecticut law, and to say the Ninth Amendment