James I. Glasser

P.T. Barnum, Justice Harlan, and Connecticut's Role in the Development of the Right to Privacy

December 13, 2014 Published Work
Federal Bar Council Quarterly, Sept./Oct./Nov. 2014, Vol. XXII, No. 1

Next year marks the 50th anniversary of Griswold v. Connecticut, 381 U.S. 479 (1965), the landmark case that recognized a constitutional right to privacy. Although the case is well known, the history leading to this important decision is not. The challenged statute in Griswold was championed by none other than Phineas T. Barnum, the founder of Barnum & Bailey circus. Barnum supported the legislation to curb both obscenity and the burgeoning use of contraceptives. Once passed, the law was on the books but was largely ignored for nearly 75 years. It was not until birth control clinics began popping up during World War II that Connecticut began to enforce the law. In 1939, two doctors and a nurse working at a clinic were arrested. These arrests were the opening salvo of court battles that would span the next 25 years. Ultimately, Justice John Marshall Harlan II (another Connecticut resident) would play a central role in overturning the Connecticut law championed by Barnum and in establishing the enduring right of privacy. Griswold profoundly changed civil liberties, laying the groundwork for recognition of the right to terminate a pregnancy (Roe v. Wade), the right to private, consensual same-sex relations (Lawrence v. Texas), and the right to choose family living arrangements (Moore v. East Cleveland).

P.T. Barnum, Champion of ?Victorian-Era Values

Connecticut's anti-contraception statute was part of a national, Victorian-era movement to criminalize birth control. Born from complex issues of race, gender, and class that arose during post-Civil War urbanization, the anti-contraception movement was led by New Canaan, Connecticut, native Anthony Comstock, "a prominent anti-vice crusader who believed that anything remotely touching upon sex was obscene." Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 n.19 (1983). Comstock founded the New York Society for the Suppression of Vice, a vigilante vice squad that seized obscene materials and arrested its distributors.

Comstock also lobbied for federal legislation to prohibit the circulation of obscene literature. In 1873, Congress passed the "Comstock Act," which made it illegal to sell or distribute "any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion" through the U.S. Mail. See 42 Cong. Ch. 258, March 3, 1873, 17 Stat. 598. Comstock secured a position as a special Postal Inspector to enforce the Comstock Act, and used his position to impound or destroy items he considered lewd or obscene ranging from fine art to anatomy textbooks.

To read the entire article, please click here.