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Griswold's Criminal Law Essay University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2015 Griswold's Criminal Law Essay Melissa Murray Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Murray, Melissa, "Griswold's Criminal Law Essay" (2015). Connecticut Law Review. 286. https://opencommons.uconn.edu/law_review/286 CONNECTICUT LAW REVIEW VOLUME 47 MAY 2015 NUMBER 4 Essay Griswold ’s Criminal Law MELISSA MURRAY This Symposium commemorates the fiftieth anniversary of Griswold v. Connecticut. In the fifty years since it was announced, Griswold’s logic has underwritten a broader commitment to reproductive rights—one that has expanded the right to contraception and secured a woman’s right to choose an abortion. Amidst these developments it is easy to overlook another aspect of Griswold’s history. Griswold also was part of a criminal law reform effort that sought to reimagine the state’s authority in the intimate lives of citizens and limit the use of criminal law as a means of enforcing moral conformity. In this regard, Griswold shares roots with the Model Penal Code, the Wolfenden Report, and the Hart-Devlin Debates— all of which arose in a social and legal milieu in which the question of whether the state could—or should—police intimate conduct through the criminal law was a subject of considerable debate. In overlooking this aspect of Griswold, we have obscured its historical context and, perhaps more troublingly, limited its impact in defining the extent of the state’s power to regulate sex and sexuality. This brief Essay recovers this overlooked aspect of Griswold’s history. In so doing, it situates Griswold in this historical debate about the scope and limits of the state’s authority to police intimate life through the criminal law. As importantly, it considers the implications of this history for our contemporary efforts to expand sexual liberty. 1045 ESSAY CONTENTS I. INTRODUCTION ................................................................................. 1047 II. BEFORE GRISWOLD: MORALS LEGISLATION AND CRIMINAL LAW REFORM ....... 1049 III. SEX, CRIME, AND BIRTH CONTROL: LITIGATING A RIGHT TO PRIVACY IN GRISWOLD V. CONNECTICUT ................................................... 1054 IV. RECOVERING GRISWOLD’S CRIMINAL LAW ............................ 1061 V. RECLAIMING HISTORY AND ENFORCING MORALITY............ 1068 VI. CONCLUSION ................................................................................... 1073 GRISWOLD’S CRIMINAL LAW MELISSA MURRAY I. INTRODUCTION This Symposium commemorates the fiftieth anniversary of Griswold v. Connecticut,1 the United States Supreme Court decision that famously articulated a right to privacy.2 In the fifty years since it was announced, Griswold’s logic has underwritten a broader commitment to reproductive rights—one that has expanded the right to contraception3 and secured a woman’s right to choose an abortion.4 Amidst all of these developments it is easy to overlook another aspect of Griswold’s history. Although Griswold was part of a larger campaign to expand access to birth control,5 it was also part of another historical moment, one that sought to reimagine the state’s authority in the intimate lives of citizens and limit the use of criminal law as a means of enforcing moral conformity. In this regard, Griswold arose in a social and legal milieu in which the question of whether the state could—or should—police intimate conduct through the criminal law was a subject of considerable debate. Few have explored the criminal law aspect of Griswold. This oversight is unfortunate. In overlooking this part of Griswold, we have obscured its historical context and, perhaps more troublingly, limited its impact in defining the extent of the state’s power to regulate sex and sexuality. This brief Essay recovers this overlooked aspect of Griswold’s history. In so doing, it situates Griswold in this historical debate about the scope and limits of the state’s authority to police intimate life through the criminal Professor of Law, University of California, Berkeley. K.T. Albiston, Bennett Capers, Doug NeJaime, Alice Ristroph, Reva Siegel, Karen Tani, and Rose Cuison Villazor provided very helpful comments and feedback. Michael Levy of the Berkeley Law Library went above and beyond in providing necessary guidance and assistance. Finally, I am grateful to Sheila Menz, Maya Khan, and Lydia Anderson-Dana for superlative research assistance. 1 381 U.S. 479 (1965). 2 Id. at 486 (“We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”). 3 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible.”). 4 Roe v. Wade, 410 U.S. 113, 154 (1973) (“We, therefore, conclude that the right of personal privacy includes the abortion decision . .”). 5 See generally DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE (1998) (offering a detailed account of the campaign against prohibitions on contraception). 1048 CONNECTICUT LAW REVIEW [Vol. 47:1045 law. As importantly, it considers the implications of this history for our contemporary efforts to expand sexual liberty. This Essay proceeds in four parts. Part II begins in the 1940s and 1950s and documents the debate over the state’s use of the criminal law to police morality and the resulting effort to liberalize the criminal laws that regulated various aspects of intimate life. Part III then shifts to the 1960s to recover connections between Griswold and this criminal law reform effort. As it explains, although we regard Griswold as part of the Sexual Revolution and the liberalization of norms regarding sex and sexuality, the case was also part of a related effort to modernize and reform the criminal law and limit the state’s ability to regulate intimate life. Part IV considers why this aspect of Griswold has been overlooked. It suggests that Griswold’s emphasis on privacy—and specifically, the privacy rights of married couples—had the effect of subordinating the broader debate about the use of criminal law to police and enforce majoritarian moral values about sex and sexuality. Indeed, it would be almost forty years before the principles and values that animated the criminal law reform effort would be fully reflected in the Supreme Court’s privacy jurisprudence. In the 2003 case Lawrence v. Texas,6 a majority of the Court not only elaborated Griswold’s understanding of privacy to include the unmarried, it squarely confronted the debate over the state’s use of criminal law to police and enforce moral conformity.7 Part IV also considers the implications of this reclaimed history. As it explains, recovering Griswold’s criminal law antecedents not only provides a more complete historical narrative for locating the case and assessing its legacy, it also underscores the continued relevancy of the normative question at the heart of the criminal law reform debate and Griswold: Should the state use its authority to enforce moral conformity among its citizens? Although Lawrence built upon Griswold to limit the state’s ability to use the criminal law to regulate sexual morality, the state continues to rely on civil means to accomplish many of these ends. The civil regulation of sex and sexuality, however, has gone largely unnoticed. In this regard, the broader debate over state authority to regulate sex and sexuality, of which Griswold was a crucial part, persists in contemporary legal culture. Recovering Griswold’s place in the debate over the state’s regulation of sexual morality provides an important opportunity to consider how and why state regulation of sex and sexuality has persisted in the face of constitutional protections for privacy in intimate life. 6 539 U.S. 558 (2003). 7 Id. at 571, 578–79. 2015] GRISWOLD’S CRIMINAL LAW 1049 II. BEFORE GRISWOLD: MORALS LEGISLATION AND CRIMINAL LAW REFORM Since the founding, American jurisdictions relied on the criminal law to regulate sex and sexuality.8 In many states, sex outside of marriage was punished under laws prohibiting fornication or adultery.9 Sodomy—the infamous “crime against nature”—was subject to a prison term.10 Even efforts to control reproduction through contraception or abortion were routinely criminalized in order to deter promiscuity and channel sex into marriage.11 The state’s ability to regulate intimate life in this manner was widely acknowledged to be within the scope of its police power to promote the health, safety, and general welfare of its citizens.12 But by the 1940s and 1950s, this traditional authority was being called into question. In two ground-breaking sex studies, Sexual Behavior in the Human Male13 and Sexual Behavior in the Human Female,14 Indiana University’s Alfred Kinsey drew back the curtain on the intimate lives of everyday Americans. According to Kinsey, Americans routinely engaged in sexual acts and practices that violated the criminal laws of most jurisdictions.15 The 8 See JOHN D’EMILIO & ESTELLE B. FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA 15–32 (1988) (describing such “morals offenses”); LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 127–32 (1993) (detailing moral crimes). 9 See FRIEDMAN, supra note 8, at 128–31 (discussing punishment of fornication and adultery); BARBARA MEIL HOBSON, UNEASY VIRTUE: THE POLITICS OF PROSTITUTION AND THE AMERICAN REFORM TRADITION 31–33 (1987) (describing various punishments for fornication and adultery). 10 See Bowers v. Hardwick, 478 U.S. 186, 193–94 (1986) (discussing the history of anti-sodomy laws in the United States); see also WILLIAM N. ESKRIDGE, JR., DISHONORABLE PASSIONS: SODOMY LAWS IN AMERICA 1861–2003 17, 19–20, 53–54 (2008) (describing the history of anti-sodomy laws in the U.S.). 11 See MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH- CENTURY AMERICA 159–78 (1985) (discussing the criminalization of abortion and contraception); Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 IOWA L.
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