Zone of privacy

In Griswold v. Connecticut, 381 U.S. 479 (1965), O. Douglas, who wrote the majority opinion, argued that the choices made by married couples with respect to family planning are contained within a “zone of privacy” into which the government should not intrude. Acknowledging that the right to privacy is not specified anywhere in the Constitution, Douglas maintained that specific guarantees in the First, Third, Fourth, Fifth, and Ninth Amendments provide ways in which citizens can make autonomous decisions pertaining to married life. Douglas’s reasoning has drawn heavy criticism, not only from opponents of free access to birth control products and abortion, but also from legal theorists who favor strict adherence to the text of the Constitution. According to these strict constructionists, the problem with Griswold is not that it enabled married couples to make choices about reproduction, but that its notion that zones of privacy could be created under the cover of various amendments went too far beyond the Bill of Rights.
The language Douglas used to support the recognition of zones of privacy has been characterized as needlessly confusing, but it draws from a relatively established legal vocabulary. According to Douglas, certain protections included in the Bill of Rights give off “penumbras,” which are partial or incomplete shadows produced by “emanations,” that is, implications that are vital to those protections. In other words, particular guarantees in different amendments create rights that are implied but not explicitly specified. Although it might be too much to suggest that these concepts are sufficiently well defined to amount to a “penumbral theory,” the term “penumbra” was applied to provisions within the Bill of Rights in earlier cases, most notably by Justice Oliver Wendell Holmes in his dissent in Olmstead v. United States, 277 U.S. 438 (1928). There, commenting on the “penumbra” surrounding the Fourth and Fifth Amendments, Holmes suggested that it is not wise to adhere too closely to the actual wording of a law if doing so would obviate its policy implications.
Although Douglas discussed multiple zones of privacy—indicating that there may be various types—the area he focused on most intently in Griswold was the family home. Thus, he cited Boyd v. United States, 116 U.S. 616, 630 (1886), which held that the Fourth and Fifth Amendments specifically protect “the sanctity of a man’s home and the privacies of life.” Moreover, he conjured up the image of the police barging into the “sacred precincts of marital bedrooms” to stress the home as deserving of special consideration. In his concurring opinion, Justice Arthur Goldberg reinforced this perspective, quoting Justice John Marshall Harlan’s dissent in Poe v. Ullman, 367 U.S. 497 (1961), which emphasized that the home is so central to family life that it falls under the protection of several explicitly stated constitutional rights.
With the highly significant exception of Roe v. Wade, 410 U.S. 113 (1973), which underscored Griswold’s stipulation of a constitutional “guarantee of certain areas or zones of privacy,” the Court has generally tended to adopt Goldberg’s approach. In Stanley v. Georgia, 394 U.S. 557 (1969), for example, the Court affirmed important aspects of Griswold but dropped the term “zone” and simply pointed to broad social and legal agreement on the need to respect the “privacy of the home.” Similarly, Payton v. New York, 445 U.S. 573 (1980), acknowledged that privacy might be protected in other environments, but noted that the “zone of privacy” is nowhere “more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.” Later, in United States Department of Defense v. Federal Labor Relations Authority (1994), the Court described the privacy of the home as a settled principle within constitutional law: “We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions.”
Justice Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, 539 U.S. 558 (2003), focused more on liberty than on privacy in overturning Bowers v. Hardwick, 478 U.S. 186 (1986). However, he cited Griswold as the starting point for Lawrence and, rather than adopting the phrase “zone of privacy,” echoed the pronouncements made in previous cases by starting off with the declaration that “liberty protects the person from unwarranted government intrusions into a dwelling or other private places.” Thus, without decisively rejecting Douglas’s concept of “zones of privacy,” or ruling out privacy protections in other areas, the Court has located the right to privacy most consistently within the home.

Next post:

Previous post: