[SOUND] In talking about the right to privacy, first I spoke of the right to marry, second I spoke of the right to procreate. A third right that's protected under privacy, is the right to custody of one's children. The Supreme Court has said, the right to custody of one's children is a fundamental right. The government can permanently terminate a parents custody, take a child away from their parents, only if it can show a compelling reason like parental abuse or neglect. And by showing that there's no other way to achieve it. The Supreme Court has held, in many instances, that the right to custody of one's children is one the most precious rights that any of us poses. There was a case in the early 1970s, Stanley v Illinois. Illinois had a law that said if an unmarried mother lost custody of her children by passing away, or by court order, the children would immediately be put up for adoption. In this case, a man and a woman had three children together, they lived together, but they never got married. When the woman passed away, the state went to take the children and put them up for adoption. But the father said, I'm a parent, I have rights, too. And the Supreme Court ruled in favor of the father. The Supreme Court stressed that the right to custody of one's children is a basic right. Safeguarded again under the word liberty of the Due Process Clause. But there are some limits. One of the most interesting is the case from 1989, Michael H v Gerald D. Michael H v Gerald D has facts that a made-for-TV movie could be made from. A married women, who the court referred to as international model, had an affair, she conceived a child as result of the affair. But she didn't leave her husband, she didn't divorce her husband. Instead she moved in with the biological father, and lived together with him for about 18 months. After a year and a half, she left the biological father and she rejoined her husband. She took the child with her. The biological father sued and said, I wanted visitation rights. I want to be able to see my baby. California, however, then had a law that said if married woman had a child, there was an irrebuttable presumption, under these circumstances, that her husband was the father of the child. The California court used the statute to deny the biological father of all visitation, of all parental rights. Nonetheless, the Supreme Court ruled in favor of the California Law and it's application. The Supreme Court said that there's no constitutional protection for a biological father when the child is conceived in an extramarital affair. The court said a state can create an irrebuttable presumption that a married woman's husband is the father of her child. The fourth right that's protected under privacy is the right to keep the family together. I mention this separately, because family here is broader than parents and children. It includes the extended family. The most famous case here is in the mid 1970s, Moore v City of East Cleveland, Ohio. East Cleveland, Ohio had a zoning ordnance that limited the number of unrelated people that could live in the same household. The way unrelated was define in the ordinance, it kept a grandmother from living with the two grandsons, who first cousins. The Supreme Court declared this East Cleveland's zoning ordinance unconstitutional. The Court said there is a fundamental right to keep the family together that includes the extended family. But I want to hasten add here, in order to be considered a family, individuals must be related to one another. There is another case, Village of Belle Terre v Boraas. The Village of Belle Terre is near where the State University New York, Stoning Brooke is located. It too had a zoning ordinance that limited the number of unrelated people who could live in the same household. The way that this case came up was a group of college students who wanted to share a house brought a challenge. They lost. So what's the difference between Moore, where the challenge is won, and Belle Terre, where the challenge is lost? In Moore it was a grandmother and grandchildren. Relatives, and it's about the right of the family to stay together. In Belle Terre it was college students. They weren't related to one another. The right didn't provide protection to them. The fifth right that I want to talk about in regard to privacy is the right of parents to control the upbringing of their children. The Supreme Court has said, for almost a century, that the right of the parent to control the upbringing of the child is a fundamental right. The government can interfere with the parents' raising of a child only if the government meets strict scrutiny. This was initially the holding of a case almost a century ago Meyer v Nebraska. In the context of World War I, Nebraska adopted a law prohibiting schools from teaching the German language. A challenge was brought. The argument, interestingly, was at this was keeping parents from being able to control the upbringing of the children. It wasn't a claim brought under the First Amendment. Because the First Amendment had not yet been applied to state and local governments, that didn't happen until 1925, a few years later. And so the Supreme Court said in Meyer v Nebraska, parents have a fundamental right to control the upbringing of their children. And that this includes the ability to have the children be taught German in the public schools. Just a few years later, in 1925, the court decided in another case, Pierce v Society of Sisters. Oregon had a law that prohibited parochial school education. In Oregon all children were required to go to public or secular private schools. A challenge got brought here too, on the grounds that this interfered with the ability of parents to control the upbringing of their children. One more it might be surprising, but this wasn't litigated as a claim that interfered with the free exercise of the religion of the parents. The reason for that was it wasn't until 1940 that the courts said that the Free Exercise Clause of the First Amendment applied to state and local governments. Nonetheless, the Supreme Court declared the Oregon law unconstitutional. The court said parents have a fundamental right to control the upbringing of their children, for the state to deny the ability of a parent to send a child to parochial school, interfered with that right. I'll give one more example, a more recent case, Troxel v Glanville, and this is from the year 2000. Every state in the country has adopted a grandparent visitation statute. That's what's involved in Troxel v Granville. A mother of two young daughters, that was the situation. The daughters' father committed suicide. For the first year after his death, the mother routinely allowed the daughters to see their paternal grandparents. But then the mother was increasingly angry at the grandparents, of what they did when they had the children. And so the mother decided to limit grandparent visitation only to a handful holidays, special occasions over the course of the year. The grandparents sued under the Washington state law that protects grandparent visitation rights. The mother objected. The court granted the grandparents extensive visitation, but the mother very much disagreed, and the mother took the case to the Supreme Court. And the Supreme Court ruled in favor of the mother. The Supreme Court said parents have a fundamental right to control the upbringing of their children, and for court to award a grandparent visitation over the parent's objection interfered with that right. The court ruled in favor of the mother against the grandparents, and against the Grandparent Visitation Statute. And it was all about the right of parents to control the upbringing of their children. So that was the fifth of the rights with regard to privacy. The sixth right the court has protect under privacy is the right to purchase and use contraceptives. The court has said that individuals have a fundamental right to choose whether to purchase and use contraceptives. In a sense, this really relates to the right to procreate that we talked about a few moments ago. Just as there's a right to choose to procreate and have children, so is there a right to choose not to procreate, and that of course involves needing contraceptives. The initial case here, at the risk of a terrible pun I could say, the seminal case here was Griswold v Connecticut in 1965. Connecticut adopted a statute that prohibited the sale, distribution, or use of contraceptives. There had been an earlier challenge to the statute, four years before in the Supreme Court, but the court dismissed the case as not being right. The court said no doctor had yet been prosecuted, none was likely to be prosecuted, so the court wouldn't hear the case. After this, the head of a Planned Parenthood clinic and doctor went to places like the Yale University campus and handed out free samples of contraceptive foam. The doctor, the head of the Planned Parenthood clinic got arrested, prosecuted for violating the Connecticut statute. The Supreme Court declared the Connecticut law unconstitutional. Just as William O Douglas wrote for the court here. He acknowledged that privacy is not mentioned in the Constitution. But he said many constitutional provisions are really about protecting aspects of privacy. He talk about in the First Amendment, and the Second Amendment, and the Third Amendment, the Fourth Amendment, the Fifth Amendment all had aspects about protecting privacy. In fact, one commentator who ridiculed Douglas' opinion said that Douglas was like a cheerleader, skipping through the Bill of Rights saying give me a P, give me an R, give me an I. From privacy, in the penumbra, the emanations of the Bill of Rrights. The court then went on to say that nothing would be more offensive than having the police search the marital bedroom for tell-tell signs of the use of contraceptive. The court was saying that key part of autonomy should be about the ability to purchase and use contraceptives. There are things that are curious about Douglas' opinion. He focused on the privacy of the marital bedroom, but that was not what this case involved. This case involved the doctor standing on a campus and handing out samples of contraceptive foam. Also, nowhere does Justice Douglas talk about what's really at stake in this case. The right to choose not to procreate, that's after all why people use contraceptives. And so Griswold v Connecticut is a very famous case, saying that laws that prohibit the sale, distribution, use of contraceptives are unconstitutional. But many have also criticized, some have even ridiculed the reasoning of Justice Douglas in Griswold v Connecticut. Well, the court follows up Griswold, just seven years later in 1972, in Eisenstadt v Baird. The Supreme Court there says that married couples can have contraceptives only with the prescription from a physician, to be filled by a pharmacist, and non-married couples can't have the access to contraceptives at all. The state of Massachusetts adopted this law, after Griswold v Connecticut came down, that focused so much on the right of married couples to use contraceptives. None the less, the Supreme Court declared the Massachusetts law unconstitutional. The court said that the constitution protects the right to choose whether to bear or beget a child, that includes then the right to purchase and use contraceptives. Eisenstadt v Baird in 1972, clearly finds the right to purchase and use contraceptives as a fundamental right under the liberty of the Due Process Clause. And so, it has been the law, ever since the mid 1960s, that laws that prohibit the sale, the distribution, the use of contraceptives violate the right to privacy in the United States Constitution.
