This article presents a review of the Supreme Court's privacy decisions since Griswold v. Connecticut, and concentrates on Doe v. Commonwealth's Attorney for City of Richmond as a vehicle to review the Burger Court's trends in the privacy area. Doe is a good vehicle because, though decided without opinion, the summary affirmance of a lower court decision denying homosexuals constitutional protection resolved the tension developing between Douglas' penumbra theory of privacy, which was the opinion of the Court in Griswold, and the more modern substantive due process analysis. The authors conclude that the opinions in Griswold are dead as far as precedential value is concerned; that the privacy right is found in the first, third, fourth, fifth, and fourteenth amendments accord- ing to the Burger Court, and that the test for the privacy right varies from amendment to amendment, finding its basis in the history of the amendment to which it attaches. As far as state action is concerned, all of the rights enumerated in the first, third, fourth, and fifth amendments are applicable to the states through the fourteenth amendment.
Martin R. Levy & C. T. Hectus,
Privacy Revisited: The Downfall of Griswald,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol12/iss4/3