The Right to Privacy: Eisenstadt's Departure

Kim Daniels of the Thomas More Law Center offers this response to my question on the right to privacy:

To my mind, after Eisenstadt the Court’s privacy jurisprudence can no longer be considered consistent with Catholic social thought.  The Griswold court explicitly places the institution of marriage at the center of its holding, calling marriage “a coming together for better or for worse, hopefully enduring, and intimate to the point of being sacred .... an association for as noble a purpose as any involved in our prior decisions.”  381 U.S. 479, 486.   Justice Harlan’s Griswold concurrence is even more “Catholic” in its language: “Adultery, homosexuality and the like are sexual intimacies which the state forbids altogether, but the intimacy of the husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State must not only allow, but which it has always fostered and encouraged.” Id. at 553.  A right to privacy so conceived is not only consistent with Catholic teaching, in the American context it’s essential to it, protecting the institutions of marriage and the family from unwarranted state intrusion.

In Eisenstadt, however, the Court explicitly moves away from such language; marriage becomes “an association of two individuals”, and “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.”  405 U.S. 438, 453.  From there it’s only a hop, skip, and a jump to Roe, Casey’s mystery passage, and the untethered right to privacy that exists today.