In our second installment of Notches’ series commemorating the fiftieth anniversary of the 1965 Griswold v. Connecticut decision, Beth Bailey invites us to complicate progressive narratives of the sexual revolution by analyzing the conservative underpinnings of Griswold and to re-focus our attention on women’s hard-fought struggles to redefine their roles in American society.
When I teach about the history of sexuality in the United States during the 1960s and 1970s, I figure that my task is to complicate–or even undermine–the comfortably progressive narrative of sexual revolution. Yes, there were freedoms claimed and freedoms won. And when it came to sex, America looked a whole lot different in 1970 than it had at the dawn of the previous decade. But I want students to consider the notion that the “revolution” was never a simple struggle between the forces of freedom and the forces of repression. That the various strands of revolution were often in violent conflict with one another. That changes which, in retrospect, comprise the plot points of the progressive tale were—as often as not—grounded in goals and logics far, far distant from that of enhancing sexual freedom.
And my new favorite example is Griswold v Connecticut.
Griswold, Eisenstadt, Roe . . . each marks a key step in the struggle for reproductive freedom. Griswold v Connecticut, in 1965, guaranteed married couples the right to contraception. Eisenstadt v Baird, in 1972, extended that right to the unmarried. And Roe v Wade, in 1973, made abortion legal (albeit with certain restrictions). Access to birth control undeniably enabled greater sexual freedom. And reproductive freedom, many argued, was also a fundamental condition for the broader claims of second-wave feminism; without control over their reproductive lives women could not fully participate in the public sphere. Both of those significant strands of social change rest, at least in part, on the Supreme Court’s controversial Griswold decision.
Nonetheless, the Griswold decision was argued on socially conservative grounds. It offered not a whiff of a promise of sexual freedom. Claims were made in terms of the past, not the future—nine justices and opposing counsels all quite willing to grant both the sanctity of marriage and the legitimate interest of the state in preventing what Justice White, in a concurring opinion, called “all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal.” Griswold v Connecticut was controversial because it established a constitutional “right to privacy”—something everyone who was paying attention understood to be a pretty big deal, judicially—not because it overturned what even dissenting justice Potter Stewart called “a very silly law.” (In his dissent, Justice Hugo Black went with “offensive” and “evil.”)
Conservative columnist James Kilpatrick summed up the decision for his readers in June of ’65. “The majority found the Connecticut law unconscionable, repulsive, totalitarian, arbitrary, capricious, unjustified, unenforceable, destructive of privacy, and violative of personal liberty. . . . Black and Stewart, dissenting, agreed with all these strictures.” Kilpatrick, like Black and Stewart, could find no grounds for judging this ill-considered law unconstitutional—but even he found no reason to defend the law itself. Perhaps that, as much as anything else, clarifies how non-revolutionary the opposition to Connecticut’s law was, how well it fit into the broad range of social opinion of the American middle class.
In fact, the state of Connecticut, in its argument, didn’t make the case that it was immoral, in and of itself, for married couples to use contraception. The state’s interest, counsels argued, was in preventing extramarital affairs. (And if the connection isn’t clear to you, don’t worry; it seemed pretty far-fetched at the time as well. The idea is that access to birth control might conceivably enable, if not encourage, the straying spouse). But, as one concurring opinion noted, the state’s means to that legitimate end was too broad; the state interest in preventing “the evil sought to be dealt with” could be addressed more narrowly. “The State of Connecticut,” noted Justice Goldberg, “does have statues, the constitutionality of which is beyond doubt which prohibit adultery and fornication.” Clearly not an argument for sexual freedom there.
But it is, perhaps, the positive claims that are most striking. The Opinion of the Court, penned by Justice William Douglas, concludes with a paean to marriage:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right to privacy older than the bill of Rights—older than our political parties, older than our school system. 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.
To my mind, actually reading the Griswold decision—paying attention to the fundamental assumptions on which it was based rather than treating it as a first step toward reproductive freedom—offers a clear historical lesson. Activism mattered.
How did the Court get from the assumptions underlying Griswold to the broader guarantees of Eisenstadt? I’d wager that it had much to do with the claims made by feminists during the broader upheavals of the late 1960s—though not to claims about sexual freedom. Certainly more young men and women had non-marital sex during these years, and some publicly claimed their right to do so. But those acts and those claims remained controversial; a 1967 Good Housekeeping poll on unmarried women and the Pill elicited comments such as “Making birth control available to unmarried girls to me would mean lowering our moral standards and destroying our culture,” and a 1969 poll found that 75% of American adults who claimed an opinion about premarital sex believed it was wrong.
During those years, however, as a widening cohort of heterosexual youth were ever-less-discreetly defying the prohibitions against premarital sex (and ever-more-likely using birth control in the process), a much broader range of women were raising fundamental questions about their roles in American society, “from the boardroom to the bedroom,” as the phrase would go. Looking back at the responses to those claims, I’m struck, again and again, by how ugly, how vicious, and how terribly misogynistic many were. A 1968 news story about a twenty-year-old college student living with her boyfriend provoked a flood of letters branding her a “whore.” And the ABC Evening News concluded its coverage of Women’s Strike for Equality (which, in 1970, was at that point the largest demonstration for women’s rights in US history) with the US Senator from West Virginia’s dismissive comment projected on the screen behind anchorman Howard K. Smith: “A small band of bra-less bubbleheads.”
But women and their allies marched and protested and occupied, lobbied, explained, persuaded, demanded. And while sexism didn’t die an easy death, women’s claims began to unsettle the assumptions of the age. In 1971, the US House of Representatives passed the Equal Rights Amendment with a vote of 354 yeas to 54 nays; the Senate followed, in 1972, with a tally of 81 to 8. And in 1972, when the Supreme Court considered whether the unmarried, like the married, were guaranteed the right to contraception, it based its decision, in part, on a different understanding of marriage than it had employed in Griswold—one much more compatible with the insights of those who asked hard questions about women’s lives.
“It is true that, in Griswold,” wrote Justice Brennan in the Opinion of the Court in Eisenstadt v Baird, “the right of privacy in question inhered in the marital relationship. Yet,” he continued, “the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup.” Thus, he concluded, “ If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Griswold v Connecticut; Eisenstadt v Baird; Roe v Wade: these cases are the building blocks of reproductive freedom in the United States and, to my mind, of a greater sexual freedom, as well. But it’s useful to look back to the fundamentally conservative understandings underlying the Griswold decision, and to re-focus our attention on women’s hard-fought struggles to redefine their roles in American society.
Beth Bailey is a Foundation Distinguished Professor at the University of Kansas; from 2004 to 2015 she was Professor of History at Temple University. Her research falls into what are usually two fairly distinct fields: the history of gender and sexuality in the United States and the history of the US military and society. Gender and sexuality publications include From Front Porch to Back Seat: Courtship in Twentieth Century America; The First Strange Place: Race and Sex in World War II Hawaii (with David Farber); Sex in the Heartland; and (tying the fields together), “The Politics of Dancing: Don’t Ask, Don’t Tell and Moral Claims” (Journal of Policy History, Winter 2013). Her most recent book is America’s Army: Making the All-Volunteer Force. She is currently working on a book about the US Army’s attempts to manage “the problem of race” in the Vietnam era and the decade that followed.
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