Consti 3515

US CASES
Mr. Justice BRANDEIS (dissenting).

56
The defendants were convicted of conspiring to violate the National
Prohibition Act (27 USCA). Before any of the persons now charged had been
arrested or indicted, the telephones by means of which they habitually
communicated with one another and with others had been tapped by federal
officers. To this end, a lineman of long experience in wire tapping was
employed, on behalf of the government and at its expense. He tapped eight
telephones, some in the homes of the persons charged, some in their offices.
Acting on behalf of the government and in their official capacity, at least six
other prohibition agents listened over the tapped wires and reported the
messages taken. Their operations extended over a period of nearly five
months. The typewritten record of the notes of conversations overheard
occupies 775 typewritten pages. By objections seasonably made and
persistently renewed, the defendants objected to the admission of the
evidence obtained by wire tapping, on the ground that the government's
wire tapping constituted an unreasonable search and seizure, in violation of
the Fourth Amendment, and that the use as evidence of the conversations
overheard compelled the defendants to be witnesses against themselves, in
violation of the Fifth Amendment.
57
The government makes no attempt to defend the methods employed by its
officers. Indeed, it concedes that, if wire tapping can be deemed a search
and seizure within the Fourth Amendment, such wire tapping as was
practiced in the case at bar was an unreasonable search and seizure, and
that the evidence thus obtained was inadmissible. But it relies on the
language of the amendment, and it claims that the protection given thereby
cannot properly be held to include a telephone conversation.
58
'We must never forget,' said Mr. Chief Justice Marshall in McCulloch v.
Maryland, 4 Wheat. 316, 407 4 L. Ed. 579, 'that it is a Constitution we are
expounding.' Since then this court has repeatedly sustained the exercise of
power by Congress, under various clauses of that instrument, over objects of
which the fathers could not have dreamed. See Pensacola Telegraph Co. v.
Western Union Telegraph Co., 96 U. S. 1, 9, 24 L. Ed. 708; Northern Pacific Ry.
Co. v. North Dakota, 250 U. S. 135, 39 S. Ct. 502, 63 L. Ed. 897; Dakota
Central Telephone Co. v. South Dakota, 250 U. S. 163, 39 S. Ct. 507, 63 L. Ed.
910, 4 A. L. R. 1623; Brooks v. United States, 267 U. S. 432, 45 S. Ct. 345, 69
L. Ed. 699, 37 A. L. R. 1407. We have likewise held that general limitations on
the powers of government, like those embodied in the due process clauses of
the Fifth and Fourteenth Amendments, do not forbid the United States or the
states from meeting modern conditions by regulations which 'a century ago,
or even half a century ago, probably would have been rejected as arbitrary
and oppressive.' Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 387, 47
S. Ct. 114, 118 (71 L. Ed. 303); Buck v. Bell, 274 U. S. 200, 47 S. Ct. 584, 71
L. 1000. Clauses guaranteeing to the individual protection against specific
abuses of power, must have a similar capacity of adaptation to a changing
world. It was with reference to such a clause that this court said in Weems v.
United States, 217 U. S. 349, 373, 30 S. Ct. 544, 551 (54 L. Ed. 793, 19 Ann.
Cas. 705):
59
'Legislation, both statutory and constitutional, is enacted, it is true, from an
experience of evils, but its general language should not, therefore, be
necessarily confined to the form that evil had theretofore taken. Time works
changes, brings into existence new conditions and purposes. Therefore a
principal to be vital must be capable of wider application than the mischief
Mataidakun|1 |
CONSTITUTIONAL LAW 2
which gave it birth. This is peculiarly true of Constitutions. They are not
ephemeral enactments, designed to meet passing occasions. They are, to
use the words of Chief Justice Marshall, 'designed to approach immortality as
nearly as human institutions can approach it.' The future is their care and
provision for events of good and bad tendencies of which no prophecy can be
made. In the application of a Constitution, therefore, our contemplation
cannot be only of what has been but of what may be. Under any other rule a
Constitution would indeed be as easy of application as it would be deficient
in efficacy and power. Its general principles would have little value and be
converted by precedent into impotent and lifeless formulas. Rights declared
in words might be lost in reality.'
60
When the Fourth and Fifth Amendments were adopted, 'the form that evil
had theretofore taken' had been necessarily simple. Force and violence were
then the only means known to man by which a government could directly
effect self-incrimination. It could compel the individual to testify-a
compulsion effected, if need be, by torture. It could secure possession of his
papers and other articles incident to his private life-a seizure effected, if
need be, by breaking and entry. Protection against such invasion of 'the
sanctities of a man's home and the privacies of life' was provided in the
Fourth and Fifth Amendments by specific language. Boyd v. United States,
116 U. S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746. But 'time works changes,
brings into existence new conditions and purposes.' Subtler and more farreaching means of invading privacy have become available to the
government. Discovery and invention have made it possible for the
government, by means far more effective than stretching upon the rack, to
obtain disclosure in court of what is whispered in the closet.
61
Moreover, 'in the application of a Constitution, our contemplation cannot
be only of what has been, but of what may be.' The progress of science in
furnishing the government with means of espionage is not likely to stop with
wire tapping. Ways may some day be developed by which the government,
without removing papers from secret drawers, can reproduce them in court,
and by which it will be enabled to expose to a jury the most intimate
occurrences of the home. Advances in the psychic and related sciences may
bring means of exploring unexpressed beliefs, thoughts and emotions. 'That
places the liberty of every man in the hands of every petty officer' was said
by James Otis of much lesser intrusions than these.1 To Lord Camden a far
slighter intrusion seemed 'subversive of all the comforts of society.'2 Can it
be that the Constitution affords no protection against such invasions of
individual security?
62
A sufficient answer is found in Boyd v. United States, 116 U. S. 616, 627630, 6 S. Ct. 524, 29 L. Ed. 746, a case that will be remembered as long as
civil liberty lives in the United States. This court there reviewed the history
that lay behind the Fourth and Fifth Amendments. We said with reference to
Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials,
1030:
63
'The principles laid down in this opinion affect the very essence of
constitutional liberty and security. They reach farther than the concrete form
of the case there before the court, with its adventitious circumstances; they
apply to all invasions on the part of the government and its employe of the
sanctities of a man's home and the privacies of life. It is not the breaking of
his doors, and the rummaging of his drawers, that constitutes the essence of
the offense; but it is the invasion of his indefeasible right of personal
security, personal liberty and private property, where that right has never
been forfeited by his conviction of some public offense-it is the invasion of
this sacred right which underlies and constitutes the essence of Lord
Camden's judgment. Breaking into a house and opening boxes and drawers
Mataidakun|2 |
are circumstances of aggravation; but any forcible and compulsory extortion

of a man's own testimony or of his private papers to be used as evidence of
a crime or to forfeit his goods, is within the condemnation of that judgment.
In this regard the Fourth and Fifth Amendments run almost into each other.'3
64
In Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877, it was held that a sealed
letter intrusted to the mail is protected by the amendments. The mail is a
public service furnished by the government. The telephone is a public service
furnished by its authority. There is, in essence, no difference between the
sealed letter and the private telephone message. As Judge Rudkin said
below:
65
'True, the one is visible, the other invisible; the one is tangible, the other
intangible; the one is sealed, and the other unsealed; but these are
distinctions without a difference.'
66
The evil incident to invasion of the privacy of the telephone is far greater
than that involved in tampering with the mails. Whenever a telephone line is
tapped, the privacy of the persons at both ends of the line is invaded, and all
conversations between them upon any subject, and although proper,
confidential, and privileged, may be overheard. Moreover, the tapping of one
man's telephone line involves the tapping of the telephone of every other
person whom he may call, or who may call him. As a means of espionage,
writs of assistance and general warrants are but puny instruments of tyranny
and oppression when compared with wire tapping.
67
Time and again this court, in giving effect to the principle underlying the
Fourth Amendment, has refused to place an unduly literal construction upon
it. This was notably illustrated in the Boyd Case itself. Taking language in its
ordinary meaning, there is no 'search' or 'seizure' when a defendant is
required to produce a document in the orderly process of a court's
procedure. 'The right of the people of be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,' would not
be violated, under any ordinary construction of language, by compelling
obedience to a subpoena. But this court holds the evidence inadmissible
simply because the information leading to the issue of the subpoena has
been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U. S.
385, 40 S. Ct. 182, 64 L. Ed. 319. Literally, there is no 'search' or 'seizure'
when a friendly visitor abstracts papers from an office; yet we held in Gouled
v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, that evidence so
obtained could not be used. No court which looked at the words of the
amendment rather than at its underlying purpose would hold, as this court
did in Ex parte Jackson, 96 U. S. 727, 733, 24 L. Ed. 877, that its protection
extended to letters in the mails. The provision against self-incrimination in
the Fifth Amendment has been given an equally broad construction. The
language is:
68
'No person * * * shall be compelled in any criminal case to be a witness
against himself.'
69
Yet we have held not only that the protection of the amendment extends to
a witness before a grand jury, although he has not been charged with crime
(Counselman v. Hitchcock, 142 U. S. 547, 562, 586, 12 S. Ct. 195, 35 L. Ed.
1110), but that:
70
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'It applies alike to civil and criminal proceedings, wherever the answer
might tend to subject to criminal responsibility him who gives it. The
privilege protects a mere witness as fully as it does one who is also a party
defendant.' McCarthy v. Arndstein, 266 U. S. 34, 40, 45 S. Ct. 16, 17 (69 L.
Ed. 158).
71
The narrow language of the Amendment has been consistently construed
in the light of its object, 'to insure that a person should not be compelled,
when acting as a witness in any investigation, to give testimony which might
tend to show that he himself had committed a crime. The privilege is limited
to criminal matters, but it is as broad as the mischief against which it seeks
to guard.' Counselman v. Hitchcock, supra, page 562 (12 S. Ct. 198).
72
Decisions of this court applying the principle of the Boyd Case have settled
these things. Unjustified search and seizure violates the Fourth Amendment,
whatever the character of the paper;4 whether the paper when taken by the
federal officers was in the home,5 in an office,6 or elsewhere;7 whether the
taking was effected by force,8 by fraud,9 or in the orderly process of a
court's procedure.10 From these decisions, it follows necessarily that the
amendment is violated by the officer's reading the paper without a physical
seizure, without his even touching it, and that use, in any criminal
proceeding, of the contents of the paper so examined-as where they are
testified to by a federal officer who thus saw the document or where, through
knowledge so obtained, a copy has been procured elsewhere11-any such use
constitutes a violation of the Fifth Amendment.
73
The protection guaranteed by the amendments is much broader in scope.
The makers of our Constitution undertook to secure conditions favorable to
the pursuit of happiness. They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They knew that only a part of the
pain, pleasure and satisfactions of life are to be found in material things.
They sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the government,
the right to be let alone-the most comprehensive of rights and the right most
valued by civilized men. To protect, that right, every unjustifiable intrusion by
the government upon the privacy of the individual, whatever the means
employed, must be deemed a violation of the Fourth Amendment. And the
use, as evidence in a criminal proceeding, of facts ascertained by such
intrusion must be deemed a violation of the Fifth.
74
Applying to the Fourth and Fifth Amendments the established rule of
construction, the defendants' objections to the evidence obtained by wire
tapping must, in my opinion, be sustained. It is, of course, immaterial where
the physical connection with the telephone wires leading into the
defendants' premises was made. And it is also immaterial that the intrusion
was in aid of law enforcement. Experience should teach us to be most on our
guard to protect liberty when the government's purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without understanding.12
75
Independently of the constitutional question, I am of opinion that the
judgment should be reversed. By the laws of Washington, wire tapping is a
crime.13 Pierce's Code 1921, 8976(18). To prove its case, the government
was obliged to lay bare the crimes committed by its officers on its behalf. A
federal court should not permit such a prosecution to continue. Compare
Harkin v. Brundage (No. 117) 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457,
decided February 20, 1928.
76
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The situation in the case at bar differs widely from that presented in
Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R.
1159. There only a single lot of papers was involved. They had been obtained
by a private detective while acting on behalf of a private party, without the
knowledge of any federal official, long before any one had thought of
instituting a federal prosecution. Here the evidence obtained by crime was
obtained at the government's expense, by its officers, while acting on its
behalf; the officers who committed these crimes are the same officers who
were charged with the enforcement of the Prohibition Act; the crimes of
these officers were committed for the purpose of securing evidence with
which to obtain an indictment and to secure a conviction. The evidence so
obtained constitutes the warp and woof of the government's case. The
aggregate of the government evidence occupies 306 pages of the printed
record. More than 210 of them are filled by recitals of the details of the wire
tapping and of facts ascertained thereby.14 There is literally no other
evidence of guilt on the part of some of the defendants except that illegally
obtained by these officers. As to nearly all the defendants (except those who
admitted guilt), the evidence relied upon to secure a conviction consisted
mainly of that which these officers had so obtained by violating the state law.
77
As Judge Rudkin said below (19 F.(2d) 842):
78
'Here we are concerned with neither eavesdroppers nor thieves. Nor are we
concerned with the acts of private individuals. * * * We are concerned only
with the acts of federal agents, whose powers are limited and controlled by
the Constitution of the United States.'
79
The Eighteenth Amendment has not in terms empowered Congress to
authorize any one to violate the criminal laws of a state. And Congress has
never purported to do so. Compare Maryland v. Soper, 270 U. S. 9, 46 S. Ct.
185, 70 L. Ed. 449. The terms of appointment of federal prohibition agents do
not purport to confer upon them authority to violate any criminal law. Their
superior officer, the Secretary of the Treasury, has not instructed them to
commit crime on behalf of the United States. It may be assumed that the
Attorney General of the United States did not give any such instruction.15
80
When these unlawful acts were committed they were crimes only of the
officers individually. The government was innocent, in legal contemplation;
for no federal official is authorized to commit a crime on its behalf. When the
government, having full knowledge, sought, through the Department of
Justice, to avail itself of the fruits of these acts in order to accomplish its own
ends, it assumed moral responsibility for the officers' crimes. Compare the
Paquete Habana, 189 U. S. 453, 465, 23 S. Ct. 593, 47 L. Ed. 900; O'Reilly de
Camara v. Brooke, 209 U. S. 45, 52, 28 S. Ct. 439, 52 L. Ed. 676; Dodge v.
United States, 272 U. S. 530, 532, 47 S. Ct. 191, 71 L. Ed. 392; Gambino v.
United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, and if this court
should permit the government, by means of its officers' crimes, to effect its
purpose of punishing the defendants, there would seem to be present all the
elements of a ratification. If so, the government itself would become a
lawbreaker.
81
Will this court, by sustaining the judgment below, sanction such conduct on
the part of the executive? The governing principle has long been settled. It is
that a court will not redress a wrong when he who invokes its aid has unclean
hands.16 The maxim of unclean hands comes from courts of equity.17 But
the principle prevails also in courts of law. Its common application is in civil
actions between private parties. Where the government is the actor, the
reasons for applying it are even more persuasive. Where the remedies
invoked are those of the criminal law, the reasons are compelling.18
82
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The door of a court is not barred because the plaintiff has committed a
crime. The confirmed criminal is as much entitled to redress as his most
virtuous fellow citizen; no record of crime, however long, makes one an
outlaw. The court's aid is denied only when he who seeks it has violated the
law in connection with the very transaction as to which he seeks legal
redress.19 Then aid is denied despite the defendant's wrong. It is denied in
order to maintain respect for law; in order to promote confidence in the
administration of justice; in order to preserve the judicial process from
contamination. The rule is one, not of action, but of inaction. It is sometimes
spoken of as a rule of substantive law. But it extends to matters of procedure
as well.20 A defense may be waived. It is waived when not pleaded. But the
objection that the plaintiff comes with unclean hands will be taken by the
court itself.21 It will be taken despite the wish to the contrary of all the
parties to the litigation. The court protects itself.
83
Decency, security, and liberty alike demand that government officials shall
be subjected to the same rules of conduct that are commands to the citizen.
In a government of laws, existence of the government will be imperiled if it
fails to observe the law scrupulously. Our government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole people by its
example. Crime is contagious. If the government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto himself;
it invites anarchy. To declare that in the administration of the criminal law the
end justifies the means-to declare that the government may commit crimes
in order to secure the conviction of a private criminal-would bring terrible
retribution. Against that pernicious doctrine this court should resolutely set
its face.
Brief Fact Summary. The conversations of various individuals involved in

illegal liquor sales were tapped.
Synopsis of Rule of Law. A standard which would forbid the reception of
evidence, if obtained by other than nice ethical conduct by government
officials, would make society suffer and give criminals greater immunity than
has been known heretofore. In the absence of controlling legislation by
Congress, those who realize the difficulties in bringing offenders to justice
may well deem it wise that the exclusion of evidence should be confined to
cases where rights under the Constitution would be violated by admitting it.
Facts. Various individuals were convicted of liquor related crimes, including
conspiracy. The operation grossed a substantial amount of money. The
leading conspirator and the general manager of the business was one of the
Petitioners, Olmstead (the Petitioner). The main office of the business was
in Seattle and there were three telephones in the office, each on a different
line. There were also telephones in an office the Petitioner had in his own
home, at the home of his associates and various other places in Seattle. A lot
of communication occurred between Seattle and Vancouver, British
Columbia.
The information which led to the discovery of the conspiracy and its nature
and extent was largely obtained by intercepting messages on the telephones
of the conspirators by four federal prohibition officers. Small wires were
inserted along the ordinary telephone wires from the residences of four of
the [suspects] and those leading from the chief office. The insertions were
made without trespass upon any property of the defendants. They were
made in the basement of the large office building. The taps from house lines
were made in the streets near the houses.
Various conversations were taped and testified to by government witnesses.
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Issue. [W]hether the use of evidence of private telephone conversations

between the defendants and others, intercepted by means of wire tapping,
amounted to a violation of the Fourth and Fifth Amendments[?]
Held. The [Fourth] amendment does not forbid what was done here. There
was no searching. There was no seizure. The evidence was secured by the
use of the sense of hearing and that only. There was no entry of the houses
or offices of the defendants. By the invention of the telephone 50 years ago,
and its application for the purpose of extending communications, one can
talk with another at a far distant place. The language of the amendment
cannot be extended and expanded to include telephone wires, reaching to
the whole world from the defendants house or office. The intervening wires
are not part of his house or office, any more than are the highways along
which they are stretched.
Congress may, of course, protect the secrecy of telephone messages by
making them, when intercepted, inadmissible in evidence in federal criminal
trials, by direct legislation, and thus depart from the common law of
evidence. But the courts may not adopt such a policy by attributing an
enlarged and unusual meaning to the Fourth Amendment. The reasonable
view is that one who installs in his house a telephone instrument with
connecting wires intends to project his voice to those quite outside, and that
the wires beyond his house, and messages while passing over them, are not
within the protection of the Fourth Amendment. Here those who intercepted
the projected voices were not in the house of either party to the
conversation.
Neither the cases we have cited nor any of the many federal decisions
brought to our attention hold the Fourth Amendment to have been violated
as against a defendant, unless there has been an official search and seizure
of his person or such a seizure of his papers or his tangible material effects
or an actual physical invasion of his house or curtilage for the purpose of
making a seizure. [The court thought], therefore, that the wire tapping here
disclosed did not amount to a search or seizure within the meaning of the
Fourth Amendment.
Additionally, [t]he common-law rule is that the admissibility of evidence is
not affected by the illegality of the means by which it was obtained.
A standard which would forbid the reception of evidence, if obtained by
other than nice ethical conduct by government officials, would make society
suffer and give criminals greater immunity than has been known heretofore.
In the absence of controlling legislation by Congress, those who realize the
difficulties in bringing offenders to justice may well deem it wise that the
exclusion of evidence should be confined to cases where rights under the
Constitution would be violated by admitting it.
Dissent. Justice Holmes filed a dissenting opinion and argued that apart
from the Constitution the government ought not to use evidence obtained
and only obtainable by a criminal act. There is no body of precedents by
which we are bound, and which confines us to logical deduction from
established rules. Therefore [the Court] must consider the two objects of
desire both of which [the Court] cannot have and make up our minds which
to choose. It is desirable that criminals should be detected, and to that end
that all available evidence should be used. It also is desirable that the
government should not itself foster and pay for other crimes, when they are
the means by which the evidence is to be obtained. If it pays its officers for
having got evidence by crime I do not see why it may not as well pay them
for getting it in the same way, and I can attach no importance to
protestations of disapproval if it knowingly accepts and pays and announces
Mataidakun|7 |
that in future it will pay for the fruits

. [The Court has] to choose, and for my part I think it a less evil that some
criminals should escape than that the government should play an ignoble
part.
Dissent. Justice Brandeis filed a dissenting opinion and argued [a]pplying
to the Fourth and Fifth Amendments the established rule of construction, the
defendants objections to the evidence obtained by wire tapping must, in my
opinion, be sustained. It is, of course, immaterial where the physical
connection with the telephone wires leading into the defendants premises
was made. And it is also immaterial that the intrusion was in aid of law
enforcement. Experience should teach us to be most on our guard to protect
liberty when the governments purposes are beneficent. Men born to
freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.
When the government, having full knowledge, sought, through the
Department of Justice, to avail itself of the fruits of these acts in order to
accomplish its own ends, it assumed moral responsibility for the officers
crimes and if this court should permit the government, by means of its
officers crimes, to effect its purpose of punishing the defendants, there
would seem to be present all the elements of a ratification. If so, the
government itself would become a lawbreaker.
Discussion. This is an interesting case, demonstrating how the Supreme
Court thinks in certain situations a bright line rule will not cover every
situation.
316 U.S. 535

62 S.Ct. 1110
86 L.Ed. 1655
SKINNER
v.
STATE OF OKLAHOMA ex rel. WILLIAMSON, Atty. Gen. of Oklahoma.
No. 782.
Argued and Submitted May 6, 1942.
Decided June 1, 1942.
Messrs. W. J. Hulsey, H. I. Aston, and Guy L. Andrews, all of McAlester, Okl.,
for petitioner.
Mr. Mac Q. Williamson, Atty. Gen. of Oklahoma, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case touches a sensitive and important area of human rights.
Oklahoma deprives certain individuals of a right which is basic to the
perpetuation of a racethe right to have offspring. Oklahoma has decreed
Mataidakun|8 |
the enforcement of its law against petitioner, overruling his claim that it
violated the Fourteenth Amendment. Because that decision raised grave
and substantial constitutional questions, we granted the petition for
certiorari.
2
The statute involved is Oklahoma's Habitual Criminal Sterilization Act.
Okl.St.Ann. Tit. 57, 171, et seq.; L.1935, p. 94 et seq. That Act defines an
'habitual criminal' as a person who, having been convicted two or more
times for crimes 'amounting to felonies involving moral turpitude' either in
an Oklahoma court or in a court of any other State, is thereafter convicted
of such a felony in Oklahoma and is sentenced to a term of imprisonment
in an Oklahoma penal institution. 173. Machinery is provided for the
institution by the Attorney General of a proceeding against such a person
in the Oklahoma courts for a judgment that such person shall be rendered
sexually sterile. 176, 177. Notice, an opportunity to be heard, and the
right to a jury trial are provided. 177181. The issues triable in such a
proceeding are narrow and confined. If the court or jury finds that the
defendant is an 'habitual criminal' and that he 'may be rendered sexually
sterile without detriment to his or her general health', then the court 'shall
render judgment to the effect that said defendant be rendered sexually
sterile' 182, by the operation of vasectomy in case of a male and of
salpingectomy in case of a female. 174. Only one other provision of the
Act is material here and that is 195 which provides that 'offenses arising
out of the violation of the prohibitory laws, revenue acts, embezzlement,
or political offenses, shall not come or be considered within the terms of
this Act.'
3
Petitioner was convicted in 1926 of the crime of stealing chickens and was
sentenced to the Oklahoma State Reformatory. In 1929 he was convicted
of the crime of robbery with fire arms and was sentenced to the
reformatory. In 1934 he was convicted again of robbery with firearms and
was sentenced to the penitentiary. He was confined there in 1935 when
the Act was passed. In 1936 the Attorney General instituted proceedings
against him. Petitioner in his answer challenged the Act as
unconstitutional by reason of the Fourteenth Amendment. A jury trial was
had. The court instructed the jury that the crimes of which petitioner had
been convicted were felonies involving moral turpitude and that the only
question for the jury was whether the operation of vasectomy could be
performed on petitioner without detriment to his general health. The jury
found that it could be. A judgment directing that the operation of
vasectomy be performed on petitioner was affirmed by the Supreme Court
of Oklahoma by a five to four decision. 189 Okl. 235, 115 P.2d 123.
4
Several objections to the constitutionality of the Act have been pressed
upon us. It is urged that the Act cannot be sustained as an exercise of the
police power in view of the state of scientific authorities respecting
inheritability of criminal traits.1 It is argued that due process is lacking
because under this Act, unlike the act2 upheld in Buck v. Bell, 274 U.S.
200, 47 S.Ct. 584, 71 L.Ed. 1000, the defendant is given no opportunity to
be heard on the issue as to whether he is the probable potential parent of
socially undesirable offspring. See Davis v. Berry, D.C., 216 F. 413;
Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also suggested that the
Act is penal in character and that the sterilization provided for is cruel and
unusual punishment and violative of the Fourteenth Amendment. See
Mataidakun|9 |
Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65, 126 P. 75, 41
L.R.A.,N.S., 418, Ann.Cas.1914B, 512; Mickle v. Henrichs, D.C., 262 F. 687.
We pass those points without intimating an opinion on them, for there is a
feature of the Act which clearly condemns it. That is its failure to meet the
requirements of the equal protection clause of the Fourteenth
Amendment.
5
We do not stop to point out all of the inequalities in this Act. A few
examples will suffice. In Oklahoma grand larceny is a felony. Okl.St.Ann.
Tit. 21, 1705 ( 5). Larceny is grand larceny when the property taken
exceeds $20 in value. Id. 1704. Embezzlement is punishable 'in the
manner prescribed for feloniously stealing property of the value of that
embezzled.' Id. 1462. Hence he who embezzles property worth more
than $20 is guilty of a felony. A clerk who appropriates over $20 from his
employer's till (id. 1456) and a stranger who steals the same amount are
thus both guilty of felonies. If the latter repeats his act and is convicted
three times, he may be sterilized. But the clerk is not subject to the pains
and penalties of the Act no matter how large his embezzlements nor how
frequent his convictions. A person who enters a chicken coop and steals
chickens commits a felony (id. 1719); and he may be sterilized if he is
thrice convicted. If, however, he is a bailee of the property and
fraudulently appropriates it, he is an embezzler. Id. 1455. Hence no
matter how habitual his proclivities for embezzlement are and no matter
how often his conviction, he may not be sterilized. Thus the nature of the
two crimes is intrinsically the same and they are punishable in the same
manner. Furthermore, the line between them follows close distinctions
distinctions comparable to those highly technical ones which shaped the
common law as to 'trespass' or 'taking'. Bishop, Criminal Law, 9th Ed., Vol.
2, 760, 799, et seq. There may be larceny by fraud rather than
embezzlement even where the owner of the personal property delivers it
to the defendant, if the latter has at that time 'a fraudulent intention to
make use of the possession as a means of converting such property to his
own use, and does so convert it'. Bivens v. State, 6 Okl.Cr. 521, 529, 120 P.
1033, 1036. If the fraudulent intent occurs later and the defendant
converts the property, he is guilty of embezzlement. Bivens v. State,
supra; Flohr v. Territory, 14 Okl. 477, 78 P. 565. Whether a particular act is
larceny by fraud or embezzlement thus turns not on the intrinsic quality of
the act but on when the felonious intent arosea question for the jury
under appropriate instructions. Bivens v. State, supra; Riley v. State, 64
Okl.Cr. 183, 78 P.2d 712.
6
It was stated in Buck v. Bell, supra, that the claim that state legislation
violates the equal protection clause of the Fourteenth Amendment is 'the
usual last resort of constitutional arguments.' 274 U.S. page 208, 47 S.Ct.
page 585, 71 L.Ed. 1000. Under our constitutional system the States in
determining the reach and scope of particular legislation need not provide
'abstract symmetry'. Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 S.Ct.
281, 282, 58 L.Ed. 539. They may mark and set apart the classes and
types of problems according to the needs and as dictated or suggested by
experience. See People of State of New York ex rel. Bryant v.
Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184, 62 A.L.R. 785, and
cases cited. It was in that connection that Mr. Justice Holmes, speaking for
the Court in Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228,
229, 75 L.Ed. 482, stated, 'We must remember that the machinery of
government would not work if it were not allowed a little play in its joints.'
Only recently we reaffirmed the view that the equal protection clause does
Mataidakun|10 |
not prevent the legislture from recognizing 'degrees of evil' (Truax v.

Raich, 239 U.S. 33, 43, 36 S.Ct. 7, 11, 60 L.Ed. 131, L.R.A.1916D, 545,
Ann.Cas.1917B, 283) by our ruling in Tigner v. Texas, 310 U.S. 141, 147,
60 S.Ct. 879, 882, 84 L.Ed. 1124, 130 A.L.R. 1321, that 'the Constitution
does not require things which are different in fact or opinion to be treated
in law as though they were the same.' And see Nashville, Chattanooga &
St. Louis Ry. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254. Thus,
if we had here only a question as to a State's classification of crimes, such
as embezzlement or larceny, no substantial federal question would be
raised. See Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301;
Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Finley v.
California, 222 U.S. 28, 32 S.Ct. 13, 56 L.Ed. 75; Patsone v. Pennsylvania,
supra. For a State is not constrained in the exercise of its police power to
ignore experience which marks a class of offenders or a family of offenses
for special treatment. Nor is it prevented by the equal protection clause
from confining 'its restrictions to those classes of cases where the need is
deemed to be clearest'. Miller v. Wilson, 236 U.S. 373, 384, 35 S.Ct. 342,
344, 59 L.Ed. 628, L.R.A.1915F, 829. And see McLean v. Arkansas, 211
U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315. As stated in Buck v. Bell, supra, 274
U.S. page 208, 47 S.Ct. page 585, 71 L.Ed. 1000, '* * * the law does all
that is needed when it does all that it can, indicates a policy, applies it to
all within the lines, and seeks to bring within the lines all similarly situated
so far and so fast as its means allow.' But the instant legislation runs afoul
of the equal protection clause, though we give Oklahoma that large
deference which the rule of the foregoing cases requires. We are dealing
here with legislation which involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and
survival of the race. The power to sterilize, if exercised, may have subtle,
farreaching and devastating effects. In evil or reckless hands it can cause
races or types which are inimical to the dominant group to wither and
disappear. There is no redemption for the individual whom the law
touches. Any experiment which the State conducts is to his irreparable
injury. He is forever deprived of a basic liberty. We mention these matters
not to reexamine the scope of the police power of the States. We advert to
them merely in emphasis of our view that strict scrutiny of the
classification which a State makes in a sterilization law is essential, lest
unwittingly or otherwise invidious discriminations are made against groups
or types of individuals in violation of the constitutional guaranty of just
and equal laws. The guaranty of 'equal protection of the laws is a pledge
of the protection of equal laws.' Yick Wo v. Hopkins, 118 U.S. 356, 369, 6
S.Ct. 1064, 1070, 30 L.Ed. 220. When the law lays an unequal hand on
those who have committed intrinsically the same quality of offense and
sterilizes one and not the other, it has made as an invidious a
discrimination as if it had selected a particular race or nationality for
oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305
U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. Sterilization of those who have
thrice committed grand larceny with immunity for those who are
embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma
makes no attempt to say that he who commits larceny by trespass or trick
or fraud has biologically inheritable traits which he who commits
embezzlement lacks. Oklahoma's line between larceny by fraud and
embezzlement is determined, as we have noted, 'with reference to the
time when the fraudulent intent to convert the property to the taker's own
use' arises. Riley v. State, supra, 64 Okl.Cr. page 189, 78 P.2d page 715.
We have not the slightest basis for inferring that that line has any
significance in eugenics nor that the inheritability of criminal traits follows
the neat legal distinctions which the law has marked between those two
Mataidakun|11 |
offenses. In terms of fines and imprisonment the crimes of larceny and

embezzlement rate the same under the Oklahoma code. Only when it
comes to sterilization are the pains and penalties of the law different. The
equal protection clause would indeed be a formula of empty words if such
conspicuously artificial lines could be drawn. See Smith v. Wayne Probate
Judge, 231 Mich. 409, 420, 421, 204 N.W. 140, 40 A.L.R. 515. In Buck v.
Bell, supra, the Virginia statute was upheld though it applied only to
feebleminded persons in institutions of the State. But it was pointed out
that 'so far as the operations enable those who otherwise must be kept
confined to be returned to the world, and thus open the asylum to others,
the equality aimed at will be more nearly reached.' 274 U.S. page 208, 47
S.Ct. page 585, 71 L.Ed. 1000. Here there is no such saving feature.
Embezzlers are forever free. Those who steal or take in other ways are
not. If such a classification were permitted, the technical common law
concept of a 'trespass' (Bishop, Criminal Law, 9th Ed., vol. 1, 566, 567)
based on distinctions which are 'very largely dependent upon history for
explanation' (Holmes, The Common Law, p. 73) could readily become a
rule of human genetics.
7
It is true that the Act has a broad severability clause.3 But we will not
endeavor to determine whether its application would solve the equal
protection difficulty. The Supreme Court of Oklahoma sustained the Act
without reference to the severability clause. We have therefore a situation
where the Act as construed and applied to petitioner is allowed to
perpetuate the discrimination which we have found to be fatal. Whether
the severability clause would be so applied as to remove this particular
constitutional objection is a question which may be more appropriately left
for adjudication by the Oklahoma court. Dorchy v. Kansas, 264 U.S. 286,
44 S.Ct. 323, 68 L.Ed. 686. That is reemphasized here by our uncertainty
as to what excision, if any, would be made as a matter of Oklahoma law.
Cf. Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264. It is by no
means clear whether if an excision were made, this particular
constitutional difficulty might be solved by enlarging on the one hand or
contracting on the other (cf. Mr. Justice Brandeis dissenting, National Life
Insurance Co. v. United States, 277 U.S. 508, 534, 535, 48 S.Ct. 591, 598,
72 L.Ed. 968) the class of criminals who might be sterilized.
Brief Fact Summary. The Petitioner, Skinner (Petitioner), was sentenced to
involuntary sterilization under Oklahomas Habitual Criminal Sterilization Act
(the Act) and now alleges that the Act deprives him of equal protection under
the laws.
Synopsis of Rule of Law. The right to have offspring is a fundamental
right, requiring a compelling state interest to interfere with it.
Facts. Oklahoma defined a habitual criminal as a person who, having
been convicted two or more times for crimes amounting to felonies involving
moral turpitude either in Oklahoma or another State, is thereafter convicted
of such a felony in Oklahoma and is sentenced to a term of imprisonment in
a Oklahoma penal institution. Such habitual criminals could be subject to
forced sterilization. The Petitioner had been twice arrested for theft offenses
before being arrested and confined for armed robbery. During his third
incarceration, the Act was passed and proceedings were instituted against
him.
Issue. May the State sterilize an individual against his will for being
convicted of three felonies involving moral turpitude?
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Held. No. Supreme Court of Oklahoma ruling reversed.

Justice William Douglas (J. Douglas) notes that sterilization of habitual
offenders in no way guarantees that new offenders will not be born.
Furthermore, there is no guarantee that habitual offenders would spawn
offenders themselves.
J. Douglas cannot justify the distinction between larceny (involving moral
turpitude) and embezzlement (not involving moral turpitude) in the eyes of
the statute. This is clear discrimination in J. Douglass view. In terms of fines
and imprisonment the crimes are identical to the State. Only when it comes
to sterilization do the crimes differ. As such, equal protection is violated.
Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment,
but rests his decision on due process grounds, arguing that the invasion of
personal liberty is too great.
Discussion. Skinner represents the Supreme Court of the United States
growing awareness of the right to reproductive autonomy. Unlike later cases
that focus on due process and a right to privacy, the majority in Skinner
holds that sterilization in the present situation violates equal protection
principles.
381 U.S. 479
85 S.Ct. 1678
14 L.Ed.2d 510
Estelle T. GRISWOLD et al. Appellants,
v.
STATE OF CONNECTICUT.
No. 496.
Argued March 29, 1965.
Thomas I. Emerson, New Haven, Conn., for appellants.
Joseph B. Clark, New Haven, Conn., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellant Griswold is Executive Director of the Planned Parenthood League
of Connecticut. Appellant Buxton is a licensed physician and a professor at
the Yale Medical School who served as Medical Director for the League at
its Center in New Havena center open and operating from November 1
to November 10, 1961, when appellants were arrested.
2
They gave information, instruction, and medical advice to married persons
as to the means of preventing conception. They examined the wife and
prescribed the best contraceptive device or material for her use. Fees
were usually charged, although some couples were serviced free.
3
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The statutes whose constitutionality is involved in this appeal are 53

32 and 54196 of the General Statutes of Connecticut (1958 rev.). The
former provides:
4
'Any person who uses any drug, medicinal article or instrument for the
purpose of preventing conception shall be fined not less than fifty dollars
or imprisoned not less than sixty days nor more than one year or be both
fined and imprisoned.'
Section 54196 provides:
5
'Any person who assists, abets, counsels, causes, hires or commands
another to commit any offense may be prosecuted and punished as if he
were the principal offender.'
6
The appellants were found guilty as accessories and fined $100 each,
against the claim that the accessory statute as so applied violated the
Fourteenth Amendment. The Appellate Division of the Circuit Court
affirmed. The Supreme Court of Errors affirmed that judgment. 151 Conn.
544, 200 A.2d 479. We noted probable jurisdiction. 379 U.S. 926, 85 S.Ct.
328, 13 L.Ed.2d 339.
7
We think that appellants have standing to raise the constitutional rights of
the married people with whom they had a professional relationship.
Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603, is different,
for there the plaintiff seeking to represent others asked for a declaratory
judgment. In that situation we thought that the requirements of standing
should be strict, lest the standards of 'case or controversy' in Article III of
the Constitution become blurred. Here those doubts are removed by
reason of a criminal conviction for serving married couples in violation of
an aiding-and-abetting statute. Certainly the accessory should have
standing to assert that the offense which he is charged with assisting is
not, or cannot constitutionally be a crime.
8
This case is more akin to Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed.
131, where an employee was permitted to assert the rights of his
employer; to Pierce v. Society of Sisters,268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070, where the owners of private schools were entitled to assert the
rights of potential pupils and their parents; and to Barrows v. Jackson,346
U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, where a white defendant, party to
a racially restrictive covenant, who was being sued for damages by the
covenantors because she had conveyed her property to Negroes, was
allowed to raise the issue that enforcement of the covenant violated the
rights of prospective Negro purchasers to equal protection, although no
Negro was a party to the suit. And see Meyer v. State of Nebraska, 262
U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Adler v. Board of Education, 342
U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; NAACP v. State of Alabama, 357
U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; NAACP v. Button, 371 U.S. 415,
83 S.Ct. 328, 9 L.Ed.2d 405. The rights of husband and wife, pressed here,
are likely to be diluted or adversely affected unless those rights are
considered in a suit involving those who have this kind of confidential
relation to them.
9
Mataidakun|14 |
Coming to the merits, we are met with a wide range of questions that
implicate the Due Process Clause of the Fourteenth Amendment.
Overtones of some arguments suggest that Lochner v. State of New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, should be our guide. But we
decline that invitation as we did in West Coast Hotel Co. v. Parrish, 300
U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Olsen v. State of Nebraska, 313
U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305; Lincoln Federal Labor Union v.
Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Williamson v.
Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Giboney v.
Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. We do not
sit as a super-legislature to determine the wisdom, need, and propriety of
laws that touch economic problems, business affairs, or social conditions.
This law, however, operates directly on an intimate relation of husband
and wife and their physician's role in one aspect of that relation.
10
The association of people is not mentioned in the Constitution nor in the
Bill of Rights. The right to educate a child in a school of the parents' choice
whether public or private or parochialis also not mentioned. Nor is the
right to study any particular subject or any foreign language. Yet the First
Amendment has been construed to include certain of those rights.
11
By Pierce v. Society of Sisters, supra, the right to educate one's children as
one chooses is made applicable to the States by the force of the First and
Fourteenth Amendments. By Meyer v. State of Nebraska, supra, the same
dignity is given the right to study the German language in a private
school. In other words, the State may not, consistently with the spirit of
the First Amendment, contract the spectrum of available knowledge. The
right of freedom of speech and press includes not only the right to utter or
to print, but the right to distribute, the right to receive, the right to read
(Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed.
1313) and freedom of inquiry, freedom of thought, and freedom to teach
(see Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 220, 97 L.Ed.
216) indeed the freedom of the entire university community. Sweezy v.
State of New Hampshire, 354 U.S. 234, 249250, 261263, 77 S.Ct.
1203, 1211, 12171218, 1 L.Ed.2d 1311; Barenblatt v. United States, 360
U.S. 109, 112, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115; Baggett v. Bullitt,377
U.S. 360, 369, 84 S.Ct. 1316, 1321, 12 L.Ed.2d 377. Without those
peripheral rights the specific rights would be less secure. And so we
reaffirm the principle of the Pierce and the Meyer cases.
12
In NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172,
we protected the 'freedom to associate and privacy in one's associations,'
noting that freedom of association was a peripheral First Amendment
right. Disclosure of membership lists of a constitutionally valid association,
we held, was invalid 'as entailing the likelihood of a substantial restraint
upon the exercise by petitioner's members of their right to freedom of
association.' Ibid. In other words, the First Amendment has a penumbra
where privacy is protected from governmental intrusion. In like context,
we have protected forms of 'association' that are not political in the
customary sense but pertain to the social, legal, and economic benefit of
the members. NAACP v. Button, 371 U.S. 415, 430431, 83 S.Ct. 328,
336337. In Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct.
752, 1 L.Ed.2d 796, we held it not permissible to bar a lawyer from
practice, because he had once been a member of the Communist Party.
The man's 'association with that Party' was not shown to be 'anything
more than a political faith in a political party' (id., at 244, 77 S.Ct. at 759)
Mataidakun|15 |
and was not action of a kind proving bad moral character. Id., at 245246,
77 S.Ct. at 759760.
13
Those cases involved more than the 'right of assembly'a right that
extends to all irrespective of their race or idealogy. De Jonge v. State of
Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. The right of
'association,' like the right of belief (West Virginia State Board of Education
v. Barnette, 319 U.S. 624, 63 S.Ct. 1178), is more than the right to attend
a meeting; it includes the right to express one's attitudes or philosophies
by membership in a group or by affiliation with it or by other lawful means.
Association in that context is a form of expression of opinion; and while it
is not expressly included in the First Amendment its existence is necessary
in making the express guarantees fully meaningful.
14
The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516522,
81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). Various guarantees
create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers 'in any
house' in time of peace without the consent of the owner is another facet
of that privacy. The Fourth Amendment explicitly affirms the 'right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its SelfIncrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth
Amendment provides: 'The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people.'
15
The Fourth and Fifth Amendments were described in Boyd v. United
States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, as protection
against all governmental invasions 'of the sanctity of a man's home and
the privacies of life.'* We recently referred in Mapp v. Ohio,367 U.S. 643,
656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081, to the Fourth Amendment as
creating a 'right to privacy, no less important than any other right
carefully and particularly reserved to the people.' See Beaney, The
Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right
to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
16
We have had many controversies over these penumbral rights of 'privacy
and repose.' See, e.g., Breard v. City of Alexandria, 341 U.S. 622, 626,
644, 71 S.Ct. 920, 923, 933, 95 L.Ed. 1233; Public Utilities Comm. v.
Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Monroe v. Pape, 365
U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Lanza v. State of New York, 370
U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384; Frank v. State of Maryland, 359
U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; Skinner v. State of Oklahoma, 316
U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. These cases bear
witness that the right of privacy which presses for recognition here is a
legitimate one.
17
The present case, then, concerns a relationship lying within the zone of
privacy created by several fundamental constitutional guarantees. And it
concerns a law which, in forbidding the use of contraceptives rather than
regulating their manufacture or sale, seeks to achieve its goals by means
having a maximum destructive impact upon that relationship. Such a law
Mataidakun|16 |
cannot stand in light of the familiar principle, so often applied by this

Court, that a 'governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.' NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct.
1302, 1314, 12 L.Ed.2d 325. 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.
18
We deal with a right of 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.
19
Reversed.
Brief Fact Summary. Appellants were charged with violating a statute
preventing the distribution of advice to married couples regarding the
prevention of conception. Appellants claimed that the statute violated the
14th Amendment to the United States Constitution.
Synopsis of Rule of Law. The right of a married couple to privacy is
protected by the Constitution.
Facts. Appellant Griswold, Executive Director of the Planned Parenthood
League of Connecticut and Appellant Buxton, a licensed physician who
served as Medical Director for the League at its Center in New Haven, were
arrested and charged with giving information, instruction, and medical
advice to married persons on means of preventing conception. Appellants
were found guilty as accessories and fined $100 each. Appellants appealed
on the theory that the accessory statute as applied violated the 14th
Amendment to the United States Constitution. Appellants claimed standing
based on their professional relationship with the married people they
advised.
Issue. Does the Constitution provide for a privacy right for married couples?
Held. The First Amendment has a penumbra where privacy is protected from
governmental intrusion, which although not expressly included in the
Amendment, is necessary to make the express guarantees meaningful. The
association of marriage is a privacy right older than the Bill of Rights, and the
States effort to control marital activities in this case is unnecessarily broad
and therefore impinges on protected Constitutional freedoms.
Dissent. Justice Stewart and Justice Black. Although the law is silly, it is not
unconstitutional. The citizens of Connecticut should use their rights under
the 9th and 10th Amendment to convince their elected representatives to
repeal it if the law does not conform to their community standards.
Concurrence. Justice Goldberg, the Chief Justice, and Justice Brennan. The
right to privacy in marriage is so basic and fundamental that to allow it to be
infringed because it is not specifically addressed in the first eight
Mataidakun|17 |
amendments is to give the 9th Amendment no effect.

Justice Harlan. The relevant statute violates the Due Process Clause of the
14th Amendment because if violates the basic values implicit in the concept
of ordered liberty.
Discussion. The right to privacy in marriage is not specifically protected in
either the Bill of Rights or the Constitution. Nonetheless, it is a right so firmly
rooted in tradition that its protection is mandated by various Constitutional
Amendments, including the 1st, 9th and 14th Amendments.
405 U.S. 438
92 S.Ct. 1029
31 L.Ed.2d 349
Thomas S. EISENSTADT, Sheriff of Suffolk County, Massachusetts,
Appellant,
v.
William R. BAIRD.
No. 7017.
Argued Nov. 17 and 18, 1971.
Decided March 22, 1972.
Syllabus
Appellee attacks his conviction of violating Massachusetts law for giving a
woman a contraceptive foam at the close of his lecture to students on
contraception. That law makes it a felony for anyone to give away a drug,
medicine, instrument, or article for the prevention of conception except in
the case of (1) a registered physician administering or prescribing it for a
married person or (2) an active registered pharmacist furnishing it to a
married person presenting a registered physician's prescription. The District
Court dismissed appellee's petition for a writ of habeas corpus. The Court of
Appeals vacated the dismissal, holding that the statute is a prohibition on
contraception per se and conflicts 'with fundamental human rights' under
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.
Appellant, inter alia, argues that appellee lacks standing to assert the rights
of unmarried persons denied access to contraceptives because he was
neither an authorized distributor under the statute nor a single person
unable to obtain contraceptives. Held:
1. If, as the Court of Appeals held, the statute under which appellee was
convicted is not a health measure, appellee may not be prevented, because
he was not an authorized distributor, from attacking the statute in its alleged
discriminatory application to potential distributees. Appellee, furthermore,
has standing to assert the rights of unmarried persons denied access to
contraceptives because their ability to obtain them will be materially
impaired by enforcement of the statute. Cf. Griswold, supra; Barrows v.
Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586. Pp. 443446.
2. By providing dissimilar treatment for married and unmarried persons who
are similarly situated, the statute violates the Equal Protection Clause or the
Fourteenth Amendment. Pp. 446 455.
Mataidakun|18 |
(a) The deterrence of fornication, a 90-day misdemeanor under

Massachusetts law, cannot reasonably be regarded as the purpose of the
statute, since the statute is riddled with exceptions making contraceptives
freely available for use in premarital sexual relations and its scope and
penalty structure are inconsistent with that purpose. Pp. 447450.
(b) Similarly, the protection of public health through the regulation of the
distribution of potentially harmful articles cannot reasonably be regarded as
the of the law, since, if health were the rationale, the statute would be both
discriminatory and overbroad, and federal and state laws already regulate
the distribution of drugs unsafe for use except under the supervision of a
licensed physician. Pp. 450452.
(c) Nor can the statute be sustained simply as a prohibition on contraception
per se, for whatever the rights of the individual to access to contraceptives
may be, the rights must be the same for the unmarried and the married
alike. If under Griswold, supra, the distribution on contraceptives to married
persons cannot be prohibited, a ban on distribution to unmarried persons
would be equally impermissible, since the constitutionally protected right of
privacy inheres in the individual, not the marital couple. If, on the other
hand, Griswold is no bar to a prohibition on the distribution of contraceptives,
a prohibition limited to unmarried persons would be underinclusive and
invidiously discriminatory. Pp. 452455.
429 F.2d 1398, affirmed.
Joseph R. Nolan, Boston, Mass., for appellant.
Joseph D. Tydings, Baltimore, Md., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellee William Baird was convicted at a bench trial in the Massachusetts
Superior Court under Massachusetts General Laws Ann., c. 272, 21, first,
for exhibiting contraceptive articles in the course of delivering a lecture on
contraception to a group of students at Boston University and, second, for
giving a young woman a package of Emko vaginal foam at the close of his
address.1 The Massachusetts Supreme Judicial Court unanimously set
aside the conviction for exhibiting contraceptives on the ground that it
violated Baird's First Amendment rights, but by a four-to-three vote
sustained the conviction for giving away the foam. Commonwealth v.
Baird, 355 Mass. 746, 247 N.E.2d 574 (1969). Baird subsequently filed a
petition for a federal writ of habeas corpus, which the District Court
dismissed. 310 F.Supp. 951 (1970). On appeal, however, the Court of
Appeals for the First Circuit vacated the dismissal and remanded the
action with directions to grant the writ discharging Baird. 429 F.2d
1398 (1970). This appeal by the Sheriff of Suffolk County, Massachusetts,
followed, and we noted probable jurisdiction. 401 U.S. 934, 91 S.Ct. 921,
28 L.Ed.2d 213 (1971). We affirm.
2
Massachusetts General Laws Ann., c. 272, 21, under which Baird was
convicted, provides a maximum five-year term of imprisonment for
'whoever . . . gives away . . . any drug, medicine, instrument or article
whatever for the prevention of conception,' except as authorized in 21A.
Under 21A, '(a) registered physician may administer to or prescribe for
any married person drugs or articles intended for the prevention of
Mataidakun|19 |
pregnancy or conception. (And a) registered pharmacist actually engaged

in the business of pharmacy may furnish such drugs or articles to any
married person presenting a prescription from a registered physician.'2 As
interpreted by the State Supreme Judicial Court, these provisions make it a
felony for anyone, other than a registered physician or pharmacist acting
in accordance with the terms of 21A, to dispense any article with the
intention that it be used for the prevention of conception. The statutory
scheme distinguishes among three distinct classes of distributeesfirst,
married persons may obtain contraceptives to prevent pregnancy, but
only from doctors or druggists on prescription; second, single persons may
not obtain contraceptives from anyone to prevent pregnancy; and, third,
married or single persons may obtain contraceptives from anyone to
prevent, not pregnancy, but the spread of disease. This construction of
state law is, of course, binding on us. E.g., Groppi v. Wisconsin, 400 U.S.
505, 507, 91 S.Ct. 490, 491, 27 L.Ed.2d 571 (1971).
3
The legislative purposes that the statute is meant to serve are not
altogether clear. In Commonwealth v. Baird, supra, the Supreme Judicial
Court noted only the State's interest in protecting the health of its citizens:
'(T)he prohibition in 21,' the court declared, 'is directly related to' the
State's goal of 'preventing the distribution of articles designed to prevent
conception which may have undesirable, if not dangerous, physical
consequences,' 355 Mass., at 753, 247 N.E.2d, at 578. In a subsequent
decision, Sturgis v. Attorney General, 358 Mass. 37, 260 N.E.2d 687, 690
(1970), the court, however, found 'a second and more compelling ground
for upholding the statute'namely, to protect morals through 'regulating
the private sexual lives of single persons.'3 The Court of Appeals, for
reasons that will appear, did not consider the promotion of health or the
protection of morals through the deterrence of fornication to be the
legislative aim. Instead, the court concluded that the statutory goal was to
limit contraception in and of itselfa purpose that the court held
conflicted 'with fundamental human rights' under Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), where
this Court struck down Connecticut's prohibition against the use of
contraceptives as an unconstitutional infringement of the right of marital
privacy. 429 F.2d, at 1401 1402.
4
We agree that the goals of deterring premarital sex and regulating the
distribution of potentially harmful articles cannot reasonably be regarded
as legislative aims of 21 and 21A. And we hold that the statute, viewed
as a prohibition on contraception per se, violates the rights of single
persons under the Equal Protection Clause of the Fourteenth Amendment.
5
* We address at the outset appellant's contention that Baird does not have
standing to assert the rights of unmarried persons denied access to
contraceptives because he was neither an authorized distributor under
21A nor a single person unable to obtain contraceptives. There can be no
question, of course, that Baird has sufficient interest in challenging the
statute's validity to satisfy the 'case or controversy' requirement of Article
III of the Constitution.4Appellant's argument, however, is that this case is
governed by the Court's self-imposed rules of restraint, first, that 'one to
whom application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as applying
to other persons or other situations in which its application might be
unconstitutional,' United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519,
522, 4 L.Ed.2d 524 (1960), and, second, the 'closely related corollary that
Mataidakun|20 |
a litigant may only assert his own constitutional rights or immunities,' id.,
at 22, 80 S.Ct., at 523. Here, appellant contends that Baird's conviction
rests on the restriction in 21A on permissible distributors and that that
restriction serves a valid health interest independent of the limitation on
authorized distributees. Appellant urges, therefore, that Baird's action in
giving away the foam fell squarely within the conduct that the legislature
meant and had power to prohibit and that Baird should not be allowed to
attack the statute in its application to potential recipients. In any event,
appellant concludes, since Baird was not himself a single person denied
access to contraceptives, he should not be heard to assert their rights. We
cannot agree.
6
The Court of Appeals held that the statute under which Baird was
convicted is not a health measure. If that view is correct, we do not see
how Baird may be prevented, because he was neither a doctor nor a
druggist, from attacking the statute in its alleged discriminatory
application to potential distributees. We think, too, that our selfimposed
rule against the assertion of third-party rights must be relaxed in this case
just as in Griswold v. Connecticut, supra. There the Executive Director of
the Planned Parenthood League of Connecticut and a licensed physician
who had prescribed contraceptives for married persons and been
convicted as accessories to the crime of using contraceptives were held to
have standing to raise the constitutional rights of the patients with whom
they had a professional relationship. Appellant here argues that the
absence of a professional or aiding-and-abetting relationship distinguishes
this case from Griswold. Yet, as the Court's discussion of prior authority in
Griswold, 381 U.S., at 481, 85 S.Ct., at 1679, 14 L.Ed.2d 510, indicates,
the doctor-patient and accessory-principal relationships are not the only
circumstances in which one person has been found to have standing to
assert the rights of another. Indeed, in Barrows v. Jackson, 346 U.S. 249,
73 S.Ct. 1031, 97 L.Ed. 1586 (1953), a seller of land was entitled to defend
against an action for damages for breach of a racially restrictive covenant
on the ground that enforcement of the covenant violated the equal
protection rights of prospective non-Caucasian purchasers. The
relationship there between the defendant and those whose rights he
sought to assert was not simply the fortuitous connection between a
vendor and potential vendees, but the relationship between one who
acted to protect the rights of a minority and the minority itself. Sedler,
Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale
L.J. 599, 631 (1962). And so here the relationship between Baird and those
whose rights he seeks to assert is not simply that between a distributor
and potential distributees, but that between an advocate of the rights of
persons to obtain contraceptives and those desirous of doing so. The very
point of Baird's giving away the vaginal foam was to challenge the
Massachusetts statute that limited access to contraceptives.
7
In any event, more important than the nature of the relationship between
the litigant and those whose rights he seeks to assert is the impact of the
litigation on the third-party interests.5 In Griswold, 381 U.S., at 481, 85
S.Ct., at 1680, 14 L.Ed.2d 510, the Court stated: 'The rights of husband
and wife, pressed here, are likely to be diluted or adversely affected
unless those rights are considered in a suit involving those who have this
kind of confidential relation to them.' A similar situation obtains here.
Enforcement of the Massachusetts statute will materially impair the ability
of single persons to obtain contraceptives. In fact, the case for according
standing to assert third-party rights is stronger in this regard here than in
Griswold because unmarried persons denied access to contraceptives in
Mataidakun|21 |
Massachusetts, unlike the users of contraceptives in Connecticut, are not

themselves subject to prosecution and, to that extent, are denied a forum
in which to assert their own rights. Cf. NAACP v. Alabama, 357 U.S. 449,
78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Burrows v. Jackson, supra.6 The
Massachusetts statute, unlike the Connecticut law considered in Griswold,
prohibits, not use, but distribution.
8
For the foregoing reasons we hold that Baird, who is now in a position, and
plainly has an adequate incentive, to assert the rights of unmarried
persons denied access to contraceptives, has standing to do so. We turn to
the merits.
II
9
The basic principles governing application of the Equal Protection Clause
of the Fourteenth Amendment are familiar. As The Chief Justice only
recently explained in Reed v. Reed, 404 U.S. 71, 7576, 92 S.Ct. 251,
253, 30 L.Ed.2d 225 (1971):
10
'In applying that clause, this Court has consistently recognized that the
Fourteenth Amendment does not deny to State the power to treat different
classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27, 5
S.Ct. 357, 28 L.Ed. 923 (1885); Lindsley v. Natural Carbonic Gas Co., 220
U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway Express Agency v.
New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); McDonald v.
Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22
L.Ed.2d 739 (1969). The Equal Protection Clause of that amendment does,
however, deny to State the power to legislate that different treatment be
accorded to persons placed by a statute into different classes on the basis
of criteria wholly unrelated to the objective of that statute. A classification
'must be reasonable, not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to the object of the
legislation, so that all persons similarly circumstanced shall be treated
alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64
L.Ed. 989 (1920).'
11
The question for our determination in this case is whether there is some
ground of difference that rationally explains the different treatment
accorded married and unmarried persons under Massachusetts General
Laws Ann., c. 272, 21 and 21A.7 For the reasons that follow, we
conclude that no such ground exists.
12
First. Section 21 stems from Mass. Stat.1879, c. 159, 1, which prohibited
without exception, distribution of articles intended to be used as
contraceptives. In Commonwealth v. Allison, 227 Mass. 57, 62, 116 N.E.
265, 266 (1917), the Massachusetts Supreme Judicial Court explained that
the law's 'plain purpose is to protect purity, to preserve chastity, to
encourage continence and self restraint, to defend the sancity of the
home, and thus to engender in the State and nation a virile and virtuous
race of men and women.' Although the State clearly abandoned that
purpose with the enactment of 21A, at least insofar as the illicit sexual
activities of married persons are concerned, see n. 3, supra, the court
reiterated in Sturgis v. Attorney General, supra, that the object of the
legislation is to discourage premarital sexual intercourse. Conceding that
the State could, consistently with the Equal Protection Clause, regard the
problems of extramarital and premarital sexual relations as '(e)vils . . . of
Mataidakun|22 |
different dimensions and proportions, requiring different remedies,'

Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99
L.Ed. 563 (1955), we cannot agree that the deterrence of premarital sex
may reasonably be regarded as the purpose of the Massachusetts law.
13
It would be plainly unreasonable to assume that Massachusetts has
prescribed pregnancy and the birth of an unwanted child as punishment
for fornication, which is a misdemeanor under Massachusetts General
Laws Ann., c. 272, 18. Aside from the scheme of values that assumption
would attribute to the State, it is abundantly clear that the effect of the
ban on distribution of contraceptives to unmarried persons has at best a
marginal relation to the proffered objective. What Mr. Justice Goldberg said
in Griswold v. Connecticut, supra, 381 U.S., at 498, 85 S.Ct., at 1689, 14
L.Ed.2d 510 (concurring opinion), concerning the effect of Connecticut's
prohibition on the use of contraceptives in discouraging extramarital
sexual relations, is equally applicable here. 'The rationality of this
justification is dubious, particularly in light of the admitted widespread
availability to all persons in the State of Connecticut, unmarried as well as
married, of birth-control devices for the prevention of disease, as
distinguished from the prevention of conception.' See also id., at 505
507, 85 S.Ct., at 1689 (White, J., concurring in judgment). Like
Connecticut's laws, 21 and 21A do not at all regulate the distribution of
contraceptives when they are to be used to prevent, not pregnancy, but
the spread of disease. Commonwealth v. Corbett, 307 Mass. 7, 29 N.E.2d
151 (1940), cited with approval in Commonwealth v. Baird, 355 Mass., at
754, 247 N.E.2d, at 579. Nor, in making contraceptives available to
married persons without regard to their intended use, does Massachusetts
attempt to deter married persons from engaging in illicit sexual relations
with unmarried persons. Even on the assumption that the fear of
pregnancy operates as a deterrent to fornication, the Massachusetts
statute is thus so riddled with exceptions that deterrence of premarital sex
cannot reasonably be regarded as its aim.
14
Moreover, 21 and 21A on their face have a dubious relation to the
State's criminal prohibition on fornication. As the Court of Appeals
explained, 'Fornication is a misdemeanor (in Massachusetts), entailing a
thirty dollar fine, or three months in jail. Massachusetts General Laws Ann.
c. 272, 18. Violation of the present statute is a felony, punishable by five
years in prison. We find it hard to believe that the legislature adopted a
statute carrying a five-year penalty for its possible, obviously by no means
fully effective, deterrence of the commission of a ninety-day
misdemeanor.' 429 F.2d, at 1401. Even conceding the legislature a full
measure of discretion in fashioning means to prevent fornication, and
recognizing that the State may seek to deter prohibited conduct by
punishing more severely those who facilitate than those who actually
engage in its commission, we, like the Court of Appeals, cannot believe
that in this instance Massachusetts has chosen to expose the aider and
abetter who simply gives away a contraceptive to 20 times the 90-day
sentence of the offender himself. The very terms of the State's criminal
statutes, coupled with the de minimis effect of 21 and 21A in deterring
fornication, thus compel the conclusion that such deterrence cannot
reasonably be taken as the purpose of the ban on distribution of
contraceptives to unmarried persons.
15
Mataidakun|23 |
Second. Section 21A was added to the Massachusetts General Laws by

Stat. 1966, c. 265, 1. The Supreme Judicial Court in Commonwealth v.
Baird, supra, held that the purpose of the amendment was to serve the
health needs of the community by regulating the distribution of potentially
harmful articles. It is plain that Massachusetts had no such purpose in
mind before the enactment of 21A. As the Court of Appeals remarked,
'Consistent with the fact that the statute was contained in a chapter
dealing with 'Crimes Against Chastity, Morality, Decency and Good Order,'
it was cast only in terms of morals. A physician was forbidden to prescribe
contraceptives even when needed for the protection of health.
Commonwealth v. Gardner, 1938, 300 Mass. 372, 15 N.E.2d 222.' 429
F.2d, at 1401. Nor did the Court of Appeals 'believe that the legislature (in
enacting 21A) suddenly reversed its field and developed an interest in
health. Rather, it merely made what it thought to be the precise
accommodation necessary to escape the Griswold ruling.' Ibid.
16
Again, we must agree with the Court of Appeals. If health were the
rationale of 21A, the statute would be both discriminatory and
overbroad. Dissenting in Commonwealth v. Baird, 355 Mass., at 758, 247
N.E.2d, at 581, Justices Whittemore and Cutter stated that they saw 'in
21 and 21A, read together, no public health purpose. If there is need to
have physician prescribe (and a pharmacist dispense) contraceptives, that
need is as great for unmarried persons as for married persons.' The Court
of Appeals added: 'If the prohibition (on distribution to unmarried persons)
. . . is to be taken to mean that the same physician who can prescribe for
married patients does not have sufficient skill to protect the health of
patients who lack a marriage certificate, or who may be currently
divorced, it is illogical to the point of irrationality.' 429 F.2d, at
1401.8 Furthermore, we must join the Court of Appeals in noting that not
all contraceptives are potentially dangerous.9 As a result, if the
Massachusetts statute were a health measure, it would not only
invidiously discriminate against the unmarried, but also be overbroad with
respect to the married, a fact that the Supreme Judicial Court itself seems
to have conceded in Sturgis v. Attorney General. Mass., 260 N.E.2d at 690,
where it noted that 'it may well be that certain contraceptive medication
and devices constitute no hazard to health, in which event it could be
argued that the statute swept too broadly in its prohibition.' 'In this
posture,' as the Court of Appeals concluded, 'it is impossible to think of the
statute as intended as a health measure for the unmarried, and it is
almost as difficult to think of it as so intended even as to the married.' 429
F.2d, at 1401.
17
But if further proof that the Massachusetts statute is not a health measure
is necessary, the argument of Justice Spiegel, who also dissented in
Commonwealth v. Baird, 355 Mass., at 759, 247 N.E.2d, at 582, is
conclusive: 'It is at best a strained conception to say that the Legislature
intended to prevent the distribution of articles 'which may have
undesirable, if not dangerous, physical consequences.' If that was the
Legislature's goal, 21 is not required' in view of the federal and state
laws already regulating the distribution of harmful drugs. See Federal
Food, Drug, and Cosmetic Act, 503, 52 Stat. 1051, as amended, 21
U.S.C. 353; Mass.Gen. Laws Ann., c. 94, 187A, as amended. We
conclude, accordingly, that, despite the statute's superficial earmarks as a
health measure, health, on the face of the statute, may no more
reasonably be regarded as its purpose than the deterrence of premarital
sexual relations.
Mataidakun|24 |
18
Third. If the Massachusetts statute cannot be upheld as a deterrent to
fornication or as a health measure, may it, nevertheless, be sustained
simply as a prohibition on contraception? The Court of Appeals analysis
'led inevitably to the conclusion that, so far as morals are concerned, it is
contraceptives per se that are considered immoralto the extent that
Griswold will permit such a declaration.' 429 F.2d, at 1401 1402. The Court
of Appeals went on to hold, id., at 1402:
19
'To say that contraceptives are immoral as such, and are to be forbidden
to unmarried persons who will nevertheless persist in having intercourse,
means that such persons must risk for themselves an unwanted
pregnancy, for the child, illegitimacy, and for society, a possible obligation
of support. Such a view of morality is not only the very mirror image of
sensible legislation; we consider that it conflicts with fundamental human
rights. In the absence of demonstrated harm, we hold it is beyond the
competency of the state.'
20
We need not and do not, however, decide that important question in this
case because, whatever the rights of the individual to access to
contraceptives may be, the rights must be the same for the unmarried
and the married alike.
21
If under Griswold the distribution of contraceptives to married persons
cannot be prohibited, a ban on distribution to unmarried persons would be
equally impermissible. It is true that in Griswold the right of privacy in
question inhered in the marital relationship. Yet 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.
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. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct.
1243, 22 L.Ed.2d 542 (1969).10 See also Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Jacobson
v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643
(1905).
22
On the other hand, if Griswold is no bar to a prohibition on the distribution
of contraceptives, the State could not, consistently with the Equal
Protection Clause, outlaw distribution to unmarried but not to married
persons. In each case the evil, as perceived by the State, would be
identical, and the underinclusion would be invidious. Mr. Justice Jackson,
concurring in Railway Express Agency v. New York, 336 U.S. 106, 112
113, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949), made the point:
23
'The framers of the Constitution knew, and we should not forget today,
that there is no more effective practical guaranty against arbitrary and
unreasonable government than to require that the principles of law which
officials would impose upon a minority must be imposed generally.
Conversely, nothing opens the door to arbitrary action so effectively as to
allow those officials to pick and choose only a few to whom they will apply
legislation and thus to escape the political retribution that might be visited
upon them if larger numbers were affected. Courts can take no better
Mataidakun|25 |
measure to assure that laws will be just than to require that laws be equal
in operation.'
24
Although Mr. Justice Jackson's comments had reference to administrative
regulations, the principle he affirmed has equal application to the
legislation here. We hold that by providing dissimilar treatment for married
and unmarried persons who are similarly situated, Massachusetts General
Laws Ann., c. 272, 21 and 21A, violate the Equal Protection Clause. The
judgment of the Court of Appeals is affirmed.
25
Affirmed.
Brief Fact Summary. Appellee was convicted for exhibiting and distributing
contraceptive articles under a law that forbid single as opposed to married
people from obtaining contraceptives.
Synopsis of Rule of Law. Dissimilar treatment between married and
unmarried persons is unconstitutional when the dissimilar treatment is
unrelated to a rational State objective.
Facts. Appellee William Baird was convicted under a Massachusetts State
law for exhibiting contraceptive articles and for giving a woman a package of
Emko vaginal foam. The Massachusetts Supreme Court set aside the
conviction for exhibiting contraceptives on the grounds that it violated
Appellees First Amendment rights, but sustained the conviction for giving
away the foam. The law permitted married persons to obtain contraceptives
to prevent pregnancy, but forbid single persons from obtaining them.
Issue. Is there a rational ground for the different treatment of married and
unmarried persons under the Massachusetts State law?
Held. The dissimilar treatment of similarly situated married and unmarried

persons under the Massachusetts law violates the Equal Protection Clause.
First, the deterrence of premarital sex cannot be reasonably regarded as the
purpose of the law, because the ban has at best a marginal relating to the
proffered objective.
Second, if health is the rationale of the law, it is both discriminatory and
overbroad.
Third, the right to obtain contraceptives must be the same for married and
unmarried individuals.
Dissent. Chief Justice Burger. The law is a justified exercise of the States
police power because of the hazards of introducing a foreign substance into
the human body.
Discussion. The right of privacy is the right of the individual, married or

single, to be free from unwarranted government intrusion.
367 U.S. 497
81 S.Ct. 1752
6 L.Ed.2d 989
Mataidakun|26 |
Paul POE et al., Appellants,

v.
Abraham ULLMAN, State's Attorney. Jane DOE, Appellant, v.
Abraham ULLMAN, State's Attorney. C. Lee BUXTON, Appellant, v.
Abraham ULLMAN, State's Attorney.
Nos. 60, 61.
Argued March 1, 2, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 21, 22.
Mr. Fowler V. Harper, New Haven, Conn., for appellants in both cases.
Mrs. Harriet Pilpel, New York City, for Planned Parenthood Federation of
America, Inc., as amicus curiae, in both cases.
Mr. Raymond J. Cannon, Hartford, Conn., for appellee in both cases.
Mr. Justice FRANKFURTER announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice
WHITTAKER join.
1
These appeals challenge the constitutionality, under the Fourteenth
Amendment, of Connecticut statutes which, as authoritatively construed
by the Connecticut Supreme Court of Errors, prohibit the use of
contraceptive devices and the giving of medical advice in the use of such
devices. In proceedings seeking declarations of law, not on review of
convictions for violation of the statutes, that court has ruled that these
statutes would be applicable in the case of married couples and even
under claim that conception would constitute a serious threat to the
health or life of the female spouse.
2
No. 60 combines two actions brought in a Connecticut Superior Court for
declaratory relief. The complaint in the first alleges that the plaintiffs, Paul
and Pauline Poe,1 are a husband and wife, thirty and twenty-six years old
respectively, who live together and have no children. Mrs. Poe has had
three consecutive pregnancies terminating in infants with multiple
congenital abnormalities from which each died shortly after birth. Plaintiffs
have consulted Dr. Buxton, an obstetrician and gynecologist of eminence,
and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is
genitic, although the underlying 'mechanism' is unclear. In view of the
great emotional stress already suffered by plaintiffs, the probable
consequence of another pregnancy is psychological strain extremely
disturbing to the physical and mental health of both husband and wife.
Plaintiffs know that it is Dr. Buxton's opinion that the best and safest
medical treatment which could be prescribed for their situation is advice in
methods of preventing conception. Dr. Buxton knows of drugs, medicinal
articles and instruments which can be safely used to effect contraception.
Medically, the use of these devices is indicated as the best and safest
preventive measure necessary for the protection of plaintiffs' health.
Mataidakun|27 |
Plaintiffs, however, have been unable to obtain this information for the
sole reason that its delivery and use may or will be claimed by the
defendant State's At orney (appellee in this Court) to constitute offenses
against Connecticut law. The State's Attorney intends to prosecute
offenses against the State's laws, and claims that the giving of
contraceptive advice and the use of contraceptive devices would be
offenses forbidden by Conn.Gen.Stat.Rev.1958, 5332 and 54
196.2Alleging irreparable injury and a substantial uncertainty of legal
relations (a local procedural requisite for a declaration), plaintiffs ask a
declaratory judgment that 5332 and 54196 are unconstitutional, in
that they deprive the plaintiffs of life and liberty without due process of
law.
3
The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old
housewife. Mrs. Doe, it is alleged, lives with her husband, they have no
children; Mrs. Doe recently underwent a pregnancy which induced in her a
critical physical illnesstwo weeks' unconsciousness and a total of nine
weeks' acute sickness which left her with partial paralysis, marked
impairment of speech, and emotional instability. Another pregnancy would
be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who
believes that the best and safest treatment for her is contraceptive
advice. The remaining allegations of Mrs. Doe's complaint, and the relief
sought, are similar to those in the case of Mr. and Mrs. Poe.
4
In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff.
Setting forth facts identical to those alleged by Jane Doe, he asks that the
Connecticut statutes prohibiting his giving of contraceptive advice to Mrs.
Doe be adjudged unconstitutional, as depriving him of liberty and property
without due process.
5
In all three actions, demurrers were advanced, inter alia, on the ground
that the statutes attacked had been previously construed and sustained
by the Supreme Court of Errors of Connecticut, and thus there did not
exist the uncertainty of legal relations requisite to maintain suits for
declaratory judgment. While the Connecticut Supreme Court of Errors in
sustaining the demurrers referred to this local procedural ground, relying
on State v. Nelson, 126 Conn. 412, 11 A.2d 856, and Tileston v. Ullman,
129 Conn. 84, 26 A.2d 582, appeal dismissed 318 U.S. 44, 63 S.Ct. 493,
87 L.Ed. 603, we cannot say that its decision rested on it. 147 Conn. 48,
156 A.2d 508. We noted probable jurisdiction. 362 U.S. 987, 80 S.Ct. 1077,
4 L.Ed.2d 1020.
6
Appellants' complaints in these declaratory judgment proceedings do not
clearly, and certainly do not in terms, allege that appellee Ullman
threatens to prosecute them for use of, or for giving advice concerning,
contraceptive devices. The allegations are merely that, in the course of his
public duty, he intends to prosecute any offenses against Connecticut law,
and that he claims that use of and advice concerning contraceptives
would constitute offenses. The lack of im ediacy of the threat described by
these allegations might alone raise serious questions of non-justiciability
of appellants' claims. See United Public Workers of America (C.I.O.) v.
Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 564, 91 L.Ed. 754. But even were
we to read the allegations to convey a clear threat of imminent
prosecutions, we are not bound to accept as true all that is alleged on the
face of the complaint and admitted, technically, by demurrer, any more
Mataidakun|28 |
than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking
Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722. Formal
agreement between parties that collides with plausibility is too fragile a
foundation for indulging in constitutional adjudication.
7
The Connecticut law prohibiting the use of contraceptives has been on the
State's books since 1879. Conn.Acts 1879, c. 78. During the more than
three-quarters of a century since its enactment, a prosecution for its
violation seems never to have been initiated, save in State v. Nelson, 126
Conn. 412, 11 A.2d 856. The circumstances of that case, decided in 1940,
only prove the abstract character of what is before us. There, a test case
was brought to determine the constitutionality of the Act as applied
against two doctors and a nurse who had allegedly disseminated
contraceptive information. After the Supreme Court of Errors sustained the
legislation on appeal from a demurrer to the information, the State moved
to dismiss the information. Neither counsel nor our own researches have
discovered any other attempt to enforce the prohibition of distribution or
use of contraceptive devices by criminal process.3 The unreality of these
law suits is illumined by another circumstance. We were advised by
counsel for appellants that contraceptives are commonly and notoriously
sold in Connecticut drug stores.4 Yet no prosecutions are recorded; and
certainly such ubiquitous, open, public sales would mere quickly invite the
attention of enforcement officials than the conduct in which the present
appellants wish to engagethe giving of private medical advice by a
doctor to his individual patients, and their private use of the devices
prescribed. The undeviating policy of nullification by Connecticut of its
anti-contraceptive laws throughout all the long years that they have been
on the statute books bespeaks more than prosecutorial paralysis. What
was said in another context is relevant here. 'Deeply embedded traditional
ways of carrying out state policy * * *'or not carrying it out 'are often
tougher and truer law than the dead words of the written text.' Nashville,
C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84
L.Ed. 1254.
8
The restriction of our jurisdiction to cases and controversies within the
meaning of Article III of the Constitution, see Muskrat v. United
States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, is not the sole limitation
on the exercise of our appellate powers, especially in cases raising
constitutional questions. The policy reflected in numerous cases and over
a long period was thus summarized in the oft-quoted statement of Mr.
Justice Brandeis: 'The Court (has) developed, for its own governance in the
cases confessedly within its jurisdiction, a series of rules under which it
has avoided passing upon a large part of all the constitutional questions
pressed upon it for decision.' Ashwander v. Tennessee alley Authority, 297
U.S. 288, 341, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (concurring opinion).
In part the rules summarized in the Ashwander opinion have derived from
the historically defined, limited nature and function of courts and from the
recognition that, within the framework of our adversary system, the
adjudicatory process is most securely founded when it is exercised under
the impact of a lively conflict between antagonistic demands, actively
pressed, which make resolution of the controverted issue a practical
necessity. See Little v. Bowers, 134 U.S. 547, 558, 10 S.Ct. 620, 623, 33
L.Ed. 1016; People of State of California v. San Pablo & Tulare R. Co., 149
U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747; United States v.
Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476. In part
they derive from the fundamental federal and tripartite character of our
National Government and from the rolerestricted by its very
Mataidakun|29 |
responsibilityof the federal courts, and particularly this Court, within that
structure. See the Note to Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436;
Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488489, 43
S.Ct. 597, 601, 67 L.Ed. 1078; Watson v. Buck, 313 U.S. 387, 400403,
61 S.Ct. 962, 966968, 85 L.Ed. 1416; Alabama State Federation of Labor,
etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725.
9
These considerations press with special urgency in cases challenging
legislative action or state judicial action as repugnant to the Constitution.
'The best teaching of this Court's experience admonishes us not to
entertain constitutional questions in advance of the strictest necessity.'
Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 163, 94
L.Ed. 144. See also Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S.
33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. The various doctrines of
'standing,'5 'ripeness,'6 and 'mootness,'7 which this Court has evolved with
particular, though not exclusive, reference to such cases are but several
manifestationseach having its own 'varied application'8of the primary
conception that federal judicial power is to be exercised to strike down
legislation, whether state or federal, only at the instance of one who is
himself immediately harmed, or immediately threatened with harm, by the
challenged action. Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed.
475; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42
S.Ct. 261, 66 L.Ed. 531; United Public Workers of America (C.I.O.) v.
Mitchell, 330 U.S. 75, 8990, 67 S.Ct. 556, 564565, 91 L.Ed. 754. 'This
court can have no right to pronounce an abstract opinion upon the
constitutionality of a State law. Such law must be brought into actual or
threatened operation upon rights properly falling under judicial
cognizance, or a remedy is not to be had here.' State of Georgia v.
Stanton, 6 Wall. 50, 75, 18 L.Ed. 721, approvingly quoting Mr. Justice
Thompson, dissenting, in Cherokee Nation v. State of Georgia, 5 Pet. 1, 75,
8 L.Ed. 25; also quoted in State of New Jersey v. Sargent,269 U.S. 328,
331, 46 S.Ct. 122, 70 L.Ed. 289. 'The party who invokes the power (to
annul legislation on grounds of its unconstitutionality) must be able to
show not only that the statute is invalid, but that he has sustained or is
immediately in danger of sustaining some direct injury as the result of its
enforcement * * *.' Commonwealth of Massachusetts v. Mellon, 262 U.S.
447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.9
10
This principle was given early application and has been recurringly
enforced in the Court's refusal to entertain cases which disclosed a want
of a truly adversary contest, of a collision of actively asserted and differing
claims. See, e.g., Cleveland v. Chamberlain, 1 Black 419, 17 L.Ed. 93;
Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379. Such cases may not be
'collusive' in the derogatory sense of Lord v. Veazie, 8 How. 251, 12 L.Ed.
1067in the sense of merely colorable disputes got up to secure an
advantageous ruling from the Court. See South Spring Hill Gold Mining Co.
v. Amador Medean Gold Mining Co., 145 U.S. 300, 301, 12 S.Ct. 921, 36
L.Ed. 712. The Court has found unfit for adjudication any cause that 'is not
in any real sense adversary,' that 'does not assume the 'honest and actual
antagonistic assertion of rights' to be adjudicateda safeguard essential
to the integrity of the judicial process, and one which we have held to be
indispensable to adjudication of constitutional questions by this Court.'
United States v. Johnson, 319 U.S. 302, 305, 63 S.Ct. 1075, 1076, 87
L.Ed. 1413. The requirement for adversity was classically expounded in
Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 344345, 12
S.Ct. 400, 402, 36 L.Ed. 176:
11
Mataidakun|30 |
'* * * The theory upon which, apparently, this suit was brought is that
parties have an appeal from the legislature to the courts; and that the
latter are given an immediate and general supervision of the
constitutionality of the acts of the former. Such is not true. Whenever, in
pursuance of an honest and actual antagonistic assertion of rights by one
individual against another, there is presented a question involving the
validity of any act of any legislature, State or Federal, and the decision
necessarily rests on the competency of the legislature to so enact, the
court must, in the exercise of its solemn duties, determine whether the act
be constitutional or not; but such an exercise of power is the ultimate and
supreme function of courts. It is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy
between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to thec ourts an
inquiry as to the constitutionality of the legislative act.'
12
What was said in the Wellman case found ready application in
proceedings brought under modern declaratory judgment procedures. For
just as the declaratory judgment device does not 'purport to alter the
character of the controversies which are the subject of the judicial power
under the Constitution,' United States v. State of West Virginia, 295 U.S.
463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546, it does not permit litigants to
invoke the power of this Court to obtain constitutional rulings in advance
of necessity. Electric Bond & Share Co. v. Securities and Exchange
Comm., 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936. The Court
has been on the alert against use of the declaratory judgment device for
avoiding the rigorous insistence on exigent adversity as a condition for
evoking Court adjudication. This is as true of state court suits for
declaratory judgments as of federal. By exercising their jurisdiction, state
courts cannot determine the jurisdiction to be exercised by this Court.
Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45
L.Ed. 252; Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96
L.Ed. 475. Although we have held that a state declaratory-judgment suit
may constitute a case or controversy within our appellate jurisdiction, it is
to be reviewed here only 'so long as the case retains the essentials of an
adversary proceeding, involving a real, not a hypothetical, controversy,
which is finally determined by the judgment below.' Nashville, C. & St. L.R.
Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 348, 77 L.Ed. 730. It was
with respect to a state-originating declaratory judgment proceeding that
we said, in Alabama State Federation of Labor, etc. v. McAdory, 325 U.S.
450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725, that 'The extent to which
the declaratory judgment procedure may be used in the federal courts to
control state action lies in the sound discretion of the Court. * * *' Indeed,
we have recognized, in such cases, that '* * * the discretionary element
characteristic of declaratory jurisdiction, and imported perhaps from
equity jurisdiction and practice without the remedial phase, offers a
convenient instrument for making * * * effective * * *.' the policy against
premature constitutional decision. Rescue Army v. Municipal Court, 331
U.S. 549, 573, note 41, 67 S.Ct. 1409, 1422, 91 L.Ed. 1666.
13
Insofar as appellants seek to justify the exercise of our declaratory power
by the threat of prosecution, facts which they can no more negative by
complaint and demurrer than they could by stipulation preclude our
determining their appeals on the merits. Cf. Bartemeyer v. State of Iowa,
18 Wall. 129, 134135, 21 L.Ed. 929. It is clear that the mere existence of
a state penal statute would constitute insufficient grounds to support a
Mataidakun|31 |
federal court's adjudication of its constitutionality in proceedings brought

against the State's prosecuting officials if real threat of enforcement is
wanting. See Ex parte La Prade, 289 U.S. 444, 458, 53 S.Ct. 682, 77 L.Ed.
1311. If the prosecutor expressly agrees not to prosecute, a suit against
him for declaratory and injunctive relief is not such an adversary case as
will be reviewed here. C.I.O. v. McAdory, 325 U.S. 472, 475, 65 S.Ct. 1395,
1397, 89 L.Ed. 1741. Eighty years of Connecticut history demonstrate a
similar, albeit tacit agreement. The fact that Connecticut has not chosen
to press the enforcement of this statute deprives these controversies of
the immediacy which is an indispensable condition of constitutional
adjudication. This Court cannot be umpire to debates concerning
harmless, empty shadows. To find it necessary to pass on these statutes
now, in order to protect appellants from the hazards of prosecution, would
be to close our eyes to reality.
14
Nor does the allegation by the Poes and Doe that they are unable to
obtain information concerning contraceptive devices from Dr. Buxto, 'for
the sole reason that the delivery and use of such information and advice
may or will be claimed by the defendant State's Attorney to constitute
offenses,' disclose a necessity for present constitutional decision. It is true
that this Court has several times passed upon criminal statutes challenged
by persons who claimed that the effects of the statutes were to deter
others from maintaining profitable or advantageous relations with the
complainants. See, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed.
131; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed.
1070. But in these cases the deterrent effect complained of was one which
was grounded in a realistic fear of prosecution. We cannot agree that if Dr.
Buxton's compliance with these statutes is uncoerced by the risk of their
enforcement, his patients are entitled to a declaratory judgment
concerning the statutes' validity. And, with due regard to Dr. Buxton's
standing as a physician and to his personal sensitiveness, we cannot
accept, as the basis of constitutional adjudication, other than as
chimerical the fear of enforcement of provisions that have during so many
years gone uniformly and without exception unenforced.
15
Justiciability is of course not a legal concept with a fixed content or
susceptible of scientific verification. Its utilization is the resultant of many
subtle pressures, including the appropriateness of the issues for decision
by this Court and the actual hardship to the litigants of denying them the
relief sought. Both these factors justify withholding adjudication of the
constitutional issue raised under the circumstances and in the manmer in
which they are now before the Court.
16
Dismissed.
Brief Fact Summary. The Appellants, several couples and their physician
(Appellants), brought suit, seeking the overturn of a Connecticut statute
prohibiting the use of contraceptive devices and the giving of medical advice
on the use of such devices.
Synopsis of Rule of Law. A penal statute is not ripe for constitutional
challenge unless it is enforced by the state enacting the statute.
Facts. The Connecticut Supreme Court of Errors construed a state penal
statute as prohibiting the use of contraceptive devices and the giving of
medical advice on their use. Appellants included a couple who had several
pregnancies result with severely abnormal progeny which died shortly after
Mataidakun|32 |
birth, a couple whose wife had experienced a severely traumatic pregnancy

and their physician, who believes the safest course of treatment for the
couples includes using contraceptive devices.
Issue. Is the petitioners claim ripe for judicial review?
Held. No. Judgment affirmed. Connecticut has never attempted to fully
prosecute any case under the statute. Because of this, not only have the
Appellants not suffered injury in fact from the statute, but there is no
evidence that they would be prosecuted for acting in violation of the statute.
Dissent. Justice William Douglas (J. Douglas) argues that the mere threat of
prosecution is injury in fact, that it is not the choice worthy of a civilized
society to require individuals to risk penalty for their behavior to have their
constitutional rights determined.
Discussion. Although ripeness is the central issue in Poe, the Supreme
Court of the United States (Supreme Court) does not articulate any clear
guidelines to evaluate ripeness. Nonetheless, the Supreme Court seems to
articulate that a penal statute that has not been enforced is not ripe for
judicial review.
410 U.S. 113
Roe v. Wade (No. 70-18)
Argued: December 13, 1971
Decided: January 22, 1973
314 F.Supp. 1217, affirmed in part and reversed in part.
Syllabus
Opinion, Blackmun
Concurrence, Stewart
Dissent, Rehnquist
Syllabus
A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe
procuring or attempting an abortion except on medical advice for the
purpose of saving the mother's life. A licensed physician (Hallford), who had
two state abortion prosecutions pending against him, was permitted to
intervene. A childless married couple (the Does), the wife not being
pregnant, separately attacked the laws, basing alleged injury on the future
possibilities of contraceptive failure, pregnancy, unpreparedness for
parenthood, and impairment of the wife's health. A three-judge District
Court, which consolidated the actions, held that Roe and Hallford, and
members of their classes, had standing to sue and presented justiciable
controversies. Ruling that declaratory, though not injunctive, relief was
warranted, the court declared the abortion statutes void as vague and
overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment
rights. The court ruled the Does' complaint not justiciable. Appellants directly
appealed to this Court on the injunctive rulings, and appellee cross-appealed
from the District Court's grant of declaratory relief to Roe and Hallford.
Mataidakun|33 |
Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the
grant or denial of declaratory relief alone, review is not foreclosed when the
case is properly before the Court on appeal from specific denial of injunctive
relief and the arguments as to both injunctive and declaratory relief are
necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's
pregnancy did not moot her suit. Litigation involving pregnancy, which is
"capable of repetition, yet evading review," is an exception to the usual
federal rule that an actual controversy [p114] must exist at review stages,
and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting
declaratory, relief to Hallford, who alleged no federally protected right not
assertable as a defense against the good faith state prosecutions pending
against him.Samuels v. Mackell, 401 U.S. 66. Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of
which may not occur, is too speculative to present an actual case or
controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from
criminality only a life-saving procedure on the mother's behalf without regard
to the stage of her pregnancy and other interests involved violate the Due
Process Clause of the Fourteenth Amendment, which protects against state
action the right to privacy, including a woman's qualified right to terminate
her pregnancy. Though the State cannot override that right, it has legitimate
interests in protecting both the pregnant woman's health and the potentiality
of human life, each of which interests grows and reaches a "compelling"
point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related
to maternal health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest in
the potentiality of human life, may, if it chooses, regulate, and even
proscribe, abortion except where necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother. Pp. 163164; 164-165.
4. The State may define the term "physician" to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person
who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue, since the Texas
authorities will doubtless fully recognize the Court's ruling [p115] that the
Texas criminal abortion statutes are unconstitutional. P. 166.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and
DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined.
BURGER, C.J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART,
Mataidakun|34 |
J., post,p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion,
in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting
opinion, post, p. 171. [p116]
Brief Fact Summary. Appellant Jane Roe, a pregnant mother who wished to
obtain an abortion, sued on behalf of all woman similarly situated in an effort
to prevent the enforcement of Texas statutes criminalizing all abortions
except those performed to save the life of the mother.
Synopsis of Rule of Law. Statutes that make criminal all abortions except
when medically advised for the purpose of saving the life of the mother are
an unconstitutional invasion of privacy.
Facts. Texas statutes made it a crime to procure or attempt an abortion
except when medically advised for the purpose of saving the life of the
mother. Appellant Jane Roe sought a declaratory judgment that the statutes
were unconstitutional on their face and an injunction to prevent defendant
Dallas County District Attorney from enforcing the statutes. Appellant alleged
that she was unmarried and pregnant, and that she was unable to receive a
legal abortion by a licensed physician because her life was not threatened by
the continuation of her pregnancy and that she was unable to afford to travel
to another jurisdiction to obtain a legal abortion. Appellant sued on behalf of
herself and all other women similarly situated, claiming that the statutes
were unconstitutionally vague and abridged her right of personal privacy,
protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Issue. Do the Texas statutes improperly invade a right possessed by the
appellant to terminate her pregnancy embodied in the concept of personal
liberty contained in the Fourteenth Amendments Due Process Clause, in the
personal marital, familial, and sexual privacy protected by the Bill of Rights
or its penumbras, or among the rights reserved to the people by the Ninth
Amendment?
Held. The right to personal privacy includes the abortion decision, but the
right is not unqualified and must be considered against important state
interests in regulation.
The abortion laws in effect in the majority of the States are of relatively
recent vintage, deriving from statutory changes generally enacted in the
latter half of the 19th century. At common law abortion performed before
quickening (the first recognizable movement of the fetus in utero) was not an
indictable offense, and it is doubtful that abortion was ever a firmly
established common law crime even when it destroyed a quick fetus.
Three reasons have been advanced for the historical enactment of criminal
abortion laws. The first is that the laws are the product of a Victorian social
concern to discourage illicit sexual conduct, but this argument has been
taken seriously by neither courts nor commentators. The second reason is
that the abortion procedure is hazardous, therefore the States concern is to
protect pregnant women. However, modern medical techniques have altered
the situation, with abortions being relatively safe particularly in the first
trimester. The third reason is the States interest is in protecting the prenatal
life. However, this is somewhat negated by the fact that the pregnant woman
cannot be prosecuted for the act of abortion.
For the stage prior to the approximate end of the first trimester, the abortion
decision must be left to the medical judgment of the pregnant womans
attending physician, and may not be criminalized by statute.
For the stage subsequent to the approximate end of the first trimester, the
State may regulate abortion in ways reasonably related to maternal health
based upon the States interest in promoting the health of the mother.
Mataidakun|35 |
For the stage subsequent to viability, the State may regulate and even
proscribe abortion, except where necessary for the preservation of the
mothers life, based upon the States interest in the potential of the potential
life of the unborn child.
Dissent. Justice Rehnquist. The right to an abortion is not universally
accepted, and the right to privacy is thus not inherently involved in this case.
Discussion. The Court finds that an abortion statute that forbids all
abortions except in the case of a life saving procedure on behalf of the
mother is unconstitutional based upon the right to privacy. However, it does
allow for regulation and proscription of abortion when the statute is narrowly
tailored to uphold a compelling state interest, such as the health of the
mother or the viable fetus. The court declined to address the question of
when life begins.
478 U.S. 186
106 S.Ct. 2841
92 L.Ed.2d 140
Michael J. BOWERS, Attorney General of Georgia, Petitioner
v.
Michael HARDWICK, and John and Mary Doe.
No. 85-140.
Rehearing Denied Sept. 11, 1986.
See 478 U.S. 1039, 107 S.Ct. 29.
Syllabus
After being charged with violating the Georgia statute criminalizing sodomy
by committing that act with another adult male in the bedroom of his home,
respondent Hardwick (respondent) brought suit in Federal District Court,
challenging the constitutionality of the statute insofar as it criminalized
consensual sodomy. The court granted the defendants' motion to dismiss for
failure to state a claim. The Court of Appeals reversed and remanded,
holding that the Georgia statute violated respondent's fundamental rights.
Held: The Georgia statute is constitutional. Pp. 190-196.
(a) The Constitution does not confer a fundamental right upon homosexuals
to engage in sodomy. None of the fundamental rights announced in this
Court's prior cases involving family relationships, marriage, or procreation
bear any resemblance to the right asserted in this case. And any claim that
those cases stand for the proposition that any kind of private sexual conduct
between consenting adults is constitutionally insulated from state
proscription is unsupportable. Pp. 190-191.
(b) Against a background in which many States have criminalized sodomy
and still do, to claim that a right to engage in such conduct is "deeply rooted
in this Nation's history and tradition" or "implicit in the concept of ordered
liberty" is, at best, facetious. Pp. 191-194.
Mataidakun|36 |
(c) There should be great resistance to expand the reach of the Due Process
Clauses to cover new fundamental rights. Otherwise, the Judiciary
necessarily would take upon itself further authority to govern the country
without constitutional authority. The claimed right in this case falls far short
of overcoming this resistance. Pp. 194-195.
(d) The fact that homosexual conduct occurs in the privacy of the home does
not affect the result. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22
L.Ed.2d 542, distinguished. Pp. 195-196.
(e) Sodomy laws should not be invalidated on the asserted basis that
majority belief that sodomy is immoral is an inadequate rationale to support
the laws. P. 196.
760 F.2d 1202 (C.A.11 1985), reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and
POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C.J., post, p. 196,
and POWELL, J.,post, p. 197, filed concurring opinions. BLACKMUN, J., filed a
dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ.,
joined, post, p. 199. STEVENS, J., filed a dissenting opinion, in which
BRENNAN and MARSHALL, JJ., joined, post, p. 214.
Michael E. Hobbs, Atlanta, Ga., for petitioner.
Laurence Tribe, Cambridge, Mass., for respondents.
Justice WHITE delivered the opinion of the Court.
1
In August 1982, respondent Hardwick (hereafter respondent) was charged
with violating the Georgia statute criminalizing sodomy1 by committing
that act with another adult male in the bedroom of respondent's home.
After a preliminary hearing, the District Attorney decided not to present
the matter to the grand jury unless further evidence developed.
2
Respondent then brought suit in the Federal District Court, challenging the
constitutionality of the statute insofar as it criminalized consensual
sodomy.2 He asserted that he was a practicing homosexual, that the
Georgia sodomy statute, as administered by the defendants, placed him in
imminent danger of arrest, and that the statute for several reasons
violates the Federal Constitution. The District Court granted the
defendants' motion to dismiss for failure to state a claim, relying on Doe v.
Commonwealth's Attorney for the City of Richmond, 403 F.Supp. 1199 (ED
Va.1975), which this Court summarily affirmed, 425 U.S. 901, 96 S.Ct.
1489, 47 L.Ed.2d 751 (1976).
3
A divided panel of the Court of Appeals for the Eleventh Circuit
reversed. 760 F.2d 1202(1985). The court first held that,
because Doe was distinguishable and in any event had been undermined
by later decisions, our summary affirmance in that case did not require
affirmance of the District Court. Relying on our decisions in Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
(1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349
(1972); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542
(1969); and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973), the court went on to hold that the Georgia statute violated
respondent's fundamental rights because his homosexual activity is a
private and intimate association that is beyond the reach of state
Mataidakun|37 |
regulation by reason of the Ninth Amendment and the Due Process Clause
of the Fourteenth Amendment. The case was remanded for trial, at which,
to prevail, the State would have to prove that the statute is supported by
a compelling interest and is the most narrowly drawn means of achieving
that end.
4
Because other Courts of Appeals have arrived at judgments contrary to
that of the Eleventh Circuit in this case,3 we granted the Attorney
General's petition for certiorari questioning the holding that the sodomy
statute violates the fundamental rights of homosexuals. We agree with
petitioner that the Court of Appeals erred, and hence reverse its
judgment.4
5
This case does not require a judgment on whether laws against sodomy
between consenting adults in general, or between homosexuals in
particular, are wise or desirable. It raises no question about the right or
propriety of state legislative decisions to repeal their laws that criminalize
homosexual sodomy, or of state-court decisions invalidating those laws on
state constitutional grounds. The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in
sodomy and hence invalidates the laws of the many States that still make
such conduct illegal and have done so for a very long time. The case also
calls for some judgment about the limits of the Court's role in carrying out
its constitutional mandate.
6
We first register our disagreement with the Court of Appeals and with
respondent that the Court's prior cases have construed the Constitution to
confer a right of privacy that extends to homosexual sodomy and for all
intents and purposes have decided this case. The reach of this line of
cases was sketched in Carey v. Population Services International, 431
U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). Pierce v.
Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925),
and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923),
were described as dealing with child rearing and education;Prince v.
Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), with
family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), with procreation; Loving v.
Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), with
marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird,
supra, with contraception; and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,
35 L.Ed.2d 147 (1973), with abortion. The latter three cases were
interpreted as construing the Due Process Clause of the Fourteenth
Amendment to confer a fundamental individual right to decide whether or
not to beget or bear a child. Carey v. Population Services International,
supra,431 U.S., at 688-689, 97 S.Ct., at 2017-2018.
7
Accepting the decisions in these cases and the above description of them,
we think it evident that none of the rights announced in those cases bears
any resemblance to the claimed constitutional right of homosexuals to
engage in acts of sodomy that is asserted in this case. No connection
between family, marriage, or procreation on the one hand and
homosexual activity on the other has been demonstrated, either by the
Court of Appeals or by respondent. Moreover, any claim that these cases
nevertheless stand for the proposition that any kind of private sexual
conduct between consenting adults is constitutionally insulated from state
proscription is unsupportable. Indeed, the Court's opinion in Carey twice
Mataidakun|38 |
asserted that the privacy right, which the Griswold line of cases found to
be one of the protections provided by the Due Process Clause, did not
reach so far. 431 U.S., at 688, n. 5, 694, n. 17, 97 S.Ct., at 2018, n. 5,
2021, n. 17.
8
Precedent aside, however, respondent would have us announce, as the
Court of Appeals did, a fundamental right to engage in homosexual
sodomy. This we are quite unwilling to do. It is true that despite the
language of the Due Process Clauses of the Fifth and Fourteenth
Amendments, which appears to focus only on the processes by which life,
liberty, or property is taken, the cases are legion in which those Clauses
have been interpreted to have substantive content, subsuming rights that
to a great extent are immune from federal or state regulation or
proscription. Among such cases are those recognizing rights that have
little or no textual support in the constitutional language. Meyer,
Prince, and Pierce fall in this category, as do the privacy cases
from Griswold to Carey.
9
Striving to assure itself and the public that announcing rights not readily
identifiable in the Constitution's text involves much more than the
imposition of the Justices' own choice of values on the States and the
Federal Government, the Court has sought to identify the nature of the
rights qualifying for heightened judicial protection. In Palko v.
Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 151, 152, 82 L.Ed. 288
(1937), it was said that this category includes those fundamental liberties
that are "implicit in the concept of ordered liberty," such that "neither
liberty nor justice would exist if [they] were sacrificed." A different
description of fundamental liberties appeared in Moore v. East
Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531
(1977) (opinion of POWELL, J.), where they are characterized as those
liberties that are "deeply rooted in this Nation's history and
tradition."Id., at 503, 97 S.Ct., at 1938 (POWELL, J.). See also Griswold v.
Connecticut, 381 U.S., at 506, 85 S.Ct., at 1693.
10
It is obvious to us that neither of these formulations would extend a
fundamental right to homosexuals to engage in acts of consensual
sodomy. Proscriptions against that conduct have ancient roots. See
generally, Survey on the Constitutional Right to Privacy in the Context of
Homosexual Activity, 40 U.Miami L.Rev. 521, 525 (1986). Sodomy was a
criminal offense at common law and was forbidden by the laws of the
original thirteen States when they ratified the Bill of Rights.5 In 1868, when
the Fourteenth Amendment was ratified, all but 5 of the 37 States in the
Union had criminal sodomy laws.6 In fact, until 1961,7 all 50 States
outlawed sodomy, and today, 24 States and the District of Columbia
continue to provide criminal penalties for sodomy performed in private
and between consenting adults. See Survey, U.Miami L.Rev., supra, at 524,
n. 9. Against this background, to claim that a right to engage in such
conduct is "deeply rooted in this Nation's history and tradition" or "implicit
in the concept of ordered liberty" is, at best, facetious.
11
Nor are we inclined to take a more expansive view of our authority to
discover new fundamental rights imbedded in the Due Process Clause. The
Court is most vulnerable and comes nearest to illegitimacy when it deals
with judge-made constitutional law having little or no cognizable roots in
the language or design of the Constitution. That this is so was painfully
demonstrated by the face-off between the Executive and the Court in the
1930's, which resulted in the repudiation of much of the substantive gloss
Mataidakun|39 |
that the Court had placed on the Due Process Clauses of the Fifth and
Fourteenth Amendments. There should be, therefore, great resistance to
expand the substantive reach of those Clauses, particularly if it requires
redefining the category of rights deemed to be fundamental. Otherwise,
the Judiciary necessarily takes to itself further authority to govern the
country without express constitutional authority. The claimed right pressed
on us today falls far short of overcoming this resistance.
12
Respondent, however, asserts that the result should be different where the
homosexual conduct occurs in the privacy of the home. He relies
on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542
(1969), where the Court held that the First Amendment prevents
conviction for possessing and reading obscene material in the privacy of
one's home: "If the First Amendment means anything, it means that a
State has no business telling a man, sitting alone in his house, what books
he may read or what films he may watch." Id., at 565, 89 S.Ct., at 1248.
13
Stanley did protect conduct that would not have been protected outside
the home, and it partially prevented the enforcement of state obscenity
laws; but the decision was firmly grounded in the First Amendment. The
right pressed upon us here has no similar support in the text of the
Constitution, and it does not qualify for recognition under the prevailing
principles for construing the Fourteenth Amendment. Its limits are also
difficult to discern. Plainly enough, otherwise illegal conduct is not always
immunized whenever it occurs in the home. Victimless crimes, such as the
possession and use of illegal drugs, do not escape the law where they are
committed at home. Stanley itself recognized that its holding offered no
protection for the possession in the home of drugs, firearms, or stolen
goods. Id., at 568, n. 11, 89 S.Ct., at 1249, n. 11. And if respondent's
submission is limited to the voluntary sexual conduct between consenting
adults, it would be difficult, except by fiat, to limit the claimed right to
homosexual conduct while leaving exposed to prosecution adultery,
incest, and other sexual crimes even though they are committed in the
home. We are unwilling to start down that road.
14
Even if the conduct at issue here is not a fundamental right, respondent
asserts that there must be a rational basis for the law and that there is
none in this case other than the presumed belief of a majority of the
electorate in Georgia that homosexual sodomy is immoral and
unacceptable. This is said to be an inadequate rationale to support the
law. The law, however, is constantly based on notions of morality, and if all
laws representing essentially moral choices are to be invalidated under
the Due Process Clause, the courts will be very busy indeed. Even
respondent makes no such claim, but insists that majority sentiments
about the morality of homosexuality should be declared inadequate. We
do not agree, and are unpersuaded that the sodomy laws of some 25
States should be invalidated on this basis.8
15
Accordingly, the judgment of the Court of Appeals is
16
Reversed.
Brief Fact Summary. A male homosexual was criminally charged for
committing consensual sodomy with another male adult in the bedroom of
his home.
Mataidakun|40 |
Synopsis of Rule of Law. There is no constitutional right to engage in

consensual homosexual sodomy.
Facts. The Respondent, Hardwick (Respondent), brought suit in a federal
district court challenging the constitutionality of a Georgia statute insofar as
it criminalized consensual sodomy. The Respondent asserted that he was a
practicing homosexual, that the Georgia statute placed him in imminent
danger of arrest and that the statute violated his constitutional rights. The
District Court granted a motion to dismiss the case for failure to state a
claim. The Eleventh Circuit reversed the decision ruling that the statute
violated the Respondents fundamental rights because his homosexual
activity was a private and intimate association . . . . The Eleventh Circuit
remanded the decision for trial ruling that the Georgia statute must pass
strict scrutiny before it can be upheld.
Issue. Whether the act of consensual homosexual sodomy is protected
under the fundamental right to privacy.
Held. Justice Byron White (J. White). No. The act of consensual sodomy is not
protected under the fundamental right to privacy or any right protected
under the United States Constitution (Constitution). There is no precedent to
support the Respondents claimed constitutional right to commit sodomy.
Fundamental liberty interests recognized by the Supreme Court of the United
States (Supreme Court) throughout history and through its traditions have in
no way set any foundation to include a case such as this under the
Constitutional umbrella of protection. The Court is most vulnerable and
comes nearest to illegitimacy when it deals with judge-made constitutional
law having little or no cognizable roots in the language or design of the
Constitution. . . . There should be, therefore, great resistance to expand the
substantive reach of those Clauses, particularly if it requires redefining the
category of rights deemed to be fundamental. The judgment of the Eleventh
Circuit is reversed.
Dissent. The dissenting opinions are as follows:
Justice Harry Blackmun (J. Blackmun). [T]he right of an individual to conduct
intimate relationships in the intimacy of his or her own home [as seen in this
case] seems . . . to be the heart of the Constitutions protection of privacy.
Justice John Paul Stevens (J. Stevens). The Court orders the dismissal of
respondents complaint even though the States statute prohibits all sodomy;
even though that prohibition is concededly unconstitutional with respect to
heterosexuals; and even though the States post hoc explanations for
selective application are belied by the States own actions. At the very
least, . . . it [is] clear at this early stage of the litigation that respondent has
alleged a constitutional claim sufficient to withstand a motion to dismiss.
Concurrence. The concurring opinions are as follows:
Chief Justice Warren Burger (J. Burger). I find nothing in the Constitution
depriving a State of the power to enact the statute challenged here.
Justice Lewis Powell (J. Powell). Even though the Respondent has no
fundamental right to engage in consensual sodomy, he may be protected
by the Eight Amendment of the Constitution because the Respondent may
be imprisoned for his homosexual acts for up to 20 years for a single
private, consensual act of sodomy.
Discussion. The Supreme Court does not link this case with other right to
privacy cases because even though consensual homosexual sodomy may be
committed within the privacy of ones home, [p]roscriptions against that
conduct have ancient roots. . . . Sodomy was a criminal offense at common
Mataidakun|41 |
law and was forbidden by the laws of the original thirteen States when they
ratified the Bill of Rights. Also, the Supreme Court states that sodomy is not
immune from being criminalized because it may occur in the home. The
Supreme Court has held other acts that may take place within the home,
such as illegal possession and/or use of drugs, as criminal.
539 U.S. 558
LAWRENCE et al.
v.
TEXAS
No. 02-102.
Supreme Court of United States.
Responding to a reported weapons disturbance in a private residence,
Houston police entered petitioner Lawrence's apartment and saw him and
another adult man, petitioner Garner, engaging in a private, consensual
sexual act. Petitioners were arrested and convicted of deviate sexual
intercourse in violation of a Texas statute forbidding two persons of the same
sex to engage in certain intimate sexual conduct. In affirming, the State
Court of Appeals held, inter alia, that the statute was not unconstitutional
under the Due Process Clause of the Fourteenth Amendment. The court
considered Bowers v.Hardwick, 478 U. S. 186, controlling on that point.
Held: The Texas statute making it a crime for two persons of the same sex to
engage in certain intimate sexual conduct violates the Due Process Clause.
Pp. 564-579.
(a) Resolution of this case depends on whether petitioners were free as
adults to engage in private conduct in the exercise of their liberty under the
Due Process Clause. For this inquiry the Court deems it necessary to
reconsider its Bowers holding. The Bowers Court's initial substantive
statement"The issue presented is whether the Federal Constitution confers
a fundamental right upon homosexuals to engage in sodomy . . .," 478 U. S.,
at 190discloses the Court's failure to appreciate the extent of the liberty at
stake. To say that the issue in Bowers was simply the right to engage in
certain sexual conduct demeans the claim the individual put forward, just as
it would demean a married couple were it said that marriage is just about the
right to have sexual intercourse. Although the laws involved inBowers and
here purport to do no more than prohibit a particular sexual act, their
penalties and purposes have more far-reaching consequences, touching upon
the most private human conduct, sexual behavior, and in the most private of
places, the home. They seek to control a personal relationship that, whether
or not entitled to formal recognition in the law, is within the liberty of persons
to choose without being punished as criminals. The liberty protected by the
Constitution allows homosexual persons the right to choose to enter upon
relationships in the confines of their homes and their own private lives and
still retain their dignity as free persons. Pp. 564-567.
(b) Having misapprehended the liberty claim presented to it,
the Bowers Court stated that proscriptions against sodomy have ancient
roots. 478 U. S., at 192. It should be noted, however, that there is no
longstanding history in this country of laws directed at homosexual conduct
as a distinct matter. Early American sodomy laws were not directed at
homosexuals as such but instead sought to prohibit nonprocreative sexual
activity more generally, whether between men and women or men and men.
Mataidakun|42 |
Moreover, early sodomy laws seem not to have been enforced against
consenting adults acting in private. Instead, sodomy prosecutions often
involved predatory acts against those who could not or did not consent:
relations between men and minor girls or boys, between adults involving
force, between adults implicating disparity in status, or between men and
animals. The longstanding criminal prohibition of homosexual sodomy upon
which Bowers placed such reliance is as consistent with a general
condemnation of nonprocreative sex as it is with an established tradition of
prosecuting acts because of their homosexual character. Far from possessing
"ancient roots," ibid., American laws targeting same-sex couples did not
develop until the last third of the 20th century. Even now, only nine States
have singled out same-sex relations for criminal prosecution. Thus, the
historical grounds relied upon inBowers are more complex than the majority
opinion and the concurring opinion by Chief Justice Burger there indicated.
They are not without doubt and, at the very least, are overstated.
The Bowers Court was, of course, making the broader point that for centuries
there have been powerful voices to condemn homosexual conduct as
immoral, but this Court's obligation is to define the liberty of all, not to
mandate its own moral code, Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past
half century are most relevant here. They show an emerging awareness that
liberty gives substantial protection to adult persons in deciding how to
conduct their private lives in matters pertaining to sex. See County of
Sacramento v. Lewis,523 U. S. 833, 857. Pp. 567-573.
(c) Bowers' deficiencies became even more apparent in the years following
its announcement. The 25 States with laws prohibiting the conduct
referenced in Bowers are reduced now to 13, of which 4 enforce their laws
only against homosexual conduct. In those States, including Texas, that still
proscribe sodomy (whether for same-sex or heterosexual conduct), there is a
pattern of nonenforcement with respect to consenting adults acting in
private. Casey, supra, at 851which confirmed that the Due Process Clause
protects personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and educationand Romer v. Evans, 517
U. S. 620, 624which struck down class-based legislation directed at
homosexualscast Bowers' holding into even more doubt. The stigma the
Texas criminal statute imposes, moreover, is not trivial. Although the offense
is but a minor misdemeanor, it remains a criminal offense with all that
imports for the dignity of the persons charged, including notation of
convictions on their records and on job application forms, and registration as
sex offenders under state law. Where a case's foundations have sustained
serious erosion, criticism from other sources is of greater significance. In the
United States, criticism of Bowers has been substantial and continuing,
disapproving of its reasoning in all respects, not just as to its historical
assumptions. And, to the extent Bowers relied on values shared with a wider
civilization, the case's reasoning and holding have been rejected by the
European Court of Human Rights, and that other nations have taken action
consistent with an affirmation of the protected right of homosexual adults to
engage in intimate, consensual conduct. There has been no showing that in
this country the governmental interest in circumscribing personal choice is
somehow more legitimate or urgent. Stare decisis is not an inexorable
command. Payne v.Tennessee, 501 U. S. 808, 828. Bowers' holding has not
induced detrimental reliance of the sort that could counsel against
overturning it once there are compelling reasons to do so.Casey, supra, at
855-856. Bowers causes uncertainty, for the precedents before and after it
contradict its central holding. Pp. 573-577.
(d) Bowers' rationale does not withstand careful analysis. In his dissenting
opinion in BowersJustice Stevens concluded that (1) the fact that a State's
Mataidakun|43 |
governing majority has traditionally viewed a particular practice as immoral

is not a sufficient reason for upholding a law prohibiting the practice, and (2)
individual decisions concerning the intimacies of physical relationships, even
when not intended to produce offspring, are a form of "liberty" protected by
due process. That analysis should have controlled Bowers, and it controls
here. Bowers was not correct when it was decided, is not correct today, and
is hereby overruled. This case does not involve minors, persons who might
be injured or coerced, those who might not easily refuse consent, or public
conduct or prostitution. It does involve two adults who, with full and mutual
consent, engaged in sexual practices common to a homosexual lifestyle.
Petitioners' right to liberty under the Due Process Clause gives them the full
right to engage in private conduct without government intervention. Casey,
supra, at 847. The Texas statute furthers no legitimate state interest which
can justify its intrusion into the individual's personal and private life. Pp. 577579.
41 S. W. 3d 349, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER,
GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring
in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which
REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a
dissenting opinion, post, p. 605.
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
Paul M. Smith argued the cause for petitioners. With him on the briefs
were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow,
Patricia M. Logue, and Susan L. Sommer.
Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the
brief wereWilliam J. Delmore III and Scott A. Durfee.*
JUSTICE KENNEDY delivered the opinion of the Court.
1
Liberty protects the person from unwarranted government intrusions into
a dwelling or other private places. In our tradition the State is not
omnipresent in the home. And there are other spheres of our lives and
existence, outside the home, where the State should not be a dominant
presence. Freedom extends beyond spatial bounds. Liberty presumes an
autonomy of self that includes freedom of thought, belief, expression, and
certain intimate conduct. The instant case involves liberty of the person
both in its spatial and in its more transcendent dimensions.
2
* The question before the Court is the validity of a Texas statute making it
a crime for two persons of the same sex to engage in certain intimate
sexual conduct.
3
In Houston, Texas, officers of the Harris County Police Department were
dispatched to a private residence in response to a reported weapons
disturbance. They entered an apartment where one of the petitioners,
John Geddes Lawrence, resided. The right of the police to enter does not
seem to have been questioned. The officers observed Lawrence and
another man, Tyron Garner, engaging in a sexual act. The two petitioners
were arrested, held in custody overnight, and charged and convicted
before a Justice of the Peace.
4
Mataidakun|44 |
The complaints described their crime as "deviate sexual intercourse,

namely anal sex, with a member of the same sex (man)." App. to Pet. for
Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann.
21.06(a) (2003). It provides: "A person commits an offense if he engages
in deviate sexual intercourse with another individual of the same sex." The
statute defines "[d]eviate sexual intercourse" as follows:
5
"(A) any contact between any part of the genitals of one person and the
mouth or anus of another person; or
6
"(B) the penetration of the genitals or the anus of another person with an
object." 21.01(1).
7
The petitioners exercised their right to a trial de novo in Harris County
Criminal Court. They challenged the statute as a violation of the Equal
Protection Clause of the Fourteenth Amendment and of a like provision of
the Texas Constitution. Tex. Const., Art. 1, 3a. Those contentions were
rejected. The petitioners, having entered a plea of nolo contendere,were
each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert.
107a-110a.
8
The Court of Appeals for the Texas Fourteenth District considered the
petitioners' federal constitutional arguments under both the Equal
Protection and Due Process Clauses of the Fourteenth Amendment. After
hearing the case en banc the court, in a divided opinion, rejected the
constitutional arguments and affirmed the convictions. 41 S. W. 3d 349
(2001). The majority opinion indicates that the Court of Appeals
considered our decision in Bowersv. Hardwick, 478 U. S. 186 (1986), to
be controlling on the federal due process aspect of the case. Bowers then
being authoritative, this was proper.
9
We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:
10
1. Whether petitioners' criminal convictions under the Texas "Homosexual
Conduct" lawwhich criminalizes sexual intimacy by same-sex couples,
but not identical behavior by different-sex couplesviolate the Fourteenth
Amendment guarantee of equal protection of the laws.
11
2. Whether petitioners' criminal convictions for adult consensual sexual
intimacy in the home violate their vital interests in liberty and privacy
protected by the Due Process Clause of the Fourteenth Amendment.
12
3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for
Cert. i.
13
The petitioners were adults at the time of the alleged offense. Their
conduct was in private and consensual.
II
14
Mataidakun|45 |
We conclude the case should be resolved by determining whether the

petitioners were free as adults to engage in the private conduct in the
exercise of their liberty under the Due Process Clause of the Fourteenth
Amendment to the Constitution. For this inquiry we deem it necessary to
reconsider the Court's holding in Bowers.
15
There are broad statements of the substantive reach of liberty under the
Due Process Clause in earlier cases, including Pierce v. Society of
Sisters, 268 U. S. 510 (1925), andMeyer v. Nebraska, 262 U. S.
390 (1923); but the most pertinent beginning point is our decision
in Griswold v. Connecticut, 381 U. S. 479 (1965).
16
In Griswold the Court invalidated a state law prohibiting the use of drugs
or devices of contraception and counseling or aiding and abetting the use
of contraceptives. The Court described the protected interest as a right to
privacy and placed emphasis on the marriage relation and the protected
space of the marital bedroom. Id., at 485.
17
After Griswold it was established that the right to make certain decisions
regarding sexual conduct extends beyond the marital relationship.
In Eisenstadt v. Baird, 405 U. S. 438(1972), the Court invalidated a law
prohibiting the distribution of contraceptives to unmarried persons. The
case was decided under the Equal Protection Clause, id., at 454; but with
respect to unmarried persons, the Court went on to state the fundamental
proposition that the law impaired the exercise of their personal
rights, ibid. It quoted from the statement of the Court of Appeals finding
the law to be in conflict with fundamental human rights, and it followed
with this statement of its own:
18
"It is true that in Griswold the right of privacy in question inhered in the
marital relationship. . . . 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." Id., at 453.
19
The opinions in Griswold and Eisenstadt were part of the background for
the decision in Roev. Wade, 410 U. S. 113 (1973). As is well known, the
case involved a challenge to the Texas law prohibiting abortions, but the
laws of other States were affected as well. Although the Court held the
woman's rights were not absolute, her right to elect an abortion did have
real and substantial protection as an exercise of her liberty under the Due
Process Clause. The Court cited cases that protect spatial freedom and
cases that go well beyond it. Roerecognized the right of a woman to make
certain fundamental decisions affecting her destiny and confirmed once
more that the protection of liberty under the Due Process Clause has a
substantive dimension of fundamental significance in defining the rights of
the person.
20
In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court
confronted a New York law forbidding sale or distribution of contraceptive
devices to persons under 16 years of age. Although there was no single
opinion for the Court, the law was invalidated.
Both Eisenstadtand Carey, as well as the holding and rationale
in Roe, confirmed that the reasoning ofGriswold could not be confined to
the protection of rights of married adults. This was the state of the law
with respect to some of the most relevant cases when the Court
consideredBowers v. Hardwick.
Mataidakun|46 |
21
The facts in Bowers had some similarities to the instant case. A police
officer, whose right to enter seems not to have been in question, observed
Hardwick, in his own bedroom, engaging in intimate sexual conduct with
another adult male. The conduct was in violation of a Georgia statute
making it a criminal offense to engage in sodomy. One difference between
the two cases is that the Georgia statute prohibited the conduct whether
or not the participants were of the same sex, while the Texas statute, as
we have seen, applies only to participants of the same sex. Hardwick was
not prosecuted, but he brought an action in federal court to declare the
state statute invalid. He alleged he was a practicing homosexual and that
the criminal prohibition violated rights guaranteed to him by the
Constitution. The Court, in an opinion by Justice White, sustained the
Georgia law. Chief Justice Burger and Justice Powell joined the opinion of
the Court and filed separate, concurring opinions. Four Justices dissented.
478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall,
and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and
Marshall, JJ.).
22
The Court began its substantive discussion in Bowers as follows: "The
issue presented is whether the Federal Constitution confers a fundamental
right upon homosexuals to engage in sodomy and hence invalidates the
laws of the many States that still make such conduct illegal and have done
so for a very long time." Id., at 190. That statement, we now conclude,
discloses the Court's own failure to appreciate the extent of the liberty at
stake. To say that the issue in Bowers was simply the right to engage in
certain sexual conduct demeans the claim the individual put forward, just
as it would demean a married couple were it to be said marriage is simply
about the right to have sexual intercourse. The laws involved
in Bowersand here are, to be sure, statutes that purport to do no more
than prohibit a particular sexual act. Their penalties and purposes, though,
have more far-reaching consequences, touching upon the most private
human conduct, sexual behavior, and in the most private of places, the
home. The statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is within the
liberty of persons to choose without being punished as criminals.
23
This, as a general rule, should counsel against attempts by the State, or a
court, to define the meaning of the relationship or to set its boundaries
absent injury to a person or abuse of an institution the law protects. It
suffices for us to acknowledge that adults may choose to enter upon this
relationship in the confines of their homes and their own private lives and
still retain their dignity as free persons. When sexuality finds overt
expression in intimate conduct with another person, the conduct can be
but one element in a personal bond that is more enduring. The liberty
protected by the Constitution allows homosexual persons the right to
make this choice.
24
Having misapprehended the claim of liberty there presented to it, and thus
stating the claim to be whether there is a fundamental right to engage in
consensual sodomy, the BowersCourt said: "Proscriptions against that
conduct have ancient roots." Id., at 192. In academic writings, and in
many of the scholarly amicus briefs filed to assist the Court in this case,
there are fundamental criticisms of the historical premises relied upon by
the majority and concurring opinions in Bowers. Brief for Cato Institute
as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al.
Mataidakun|47 |
as Amici Curiae 15-21; Brief for Professors of History et al. as Amici

Curiae 3-10. We need not enter this debate in the attempt to reach a
definitive historical judgment, but the following considerations counsel
against adopting the definitive conclusions upon which Bowers placed
such reliance.
25
At the outset it should be noted that there is no longstanding history in
this country of laws directed at homosexual conduct as a distinct matter.
Beginning in colonial times there were prohibitions of sodomy derived
from the English criminal laws passed in the first instance by the
Reformation Parliament of 1533. The English prohibition was understood to
include relations between men and women as well as relations between
men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B.
1718) (interpreting "mankind" in Act of 1533 as including women and
girls). Nineteenth-century commentators similarly read American sodomy,
buggery, and crime-against-nature statutes as criminalizing certain
relations between men and women and between men and men. See, e.
g., 2 J. Bishop, Criminal Law 1028 (1858); 2 J. Chitty, Criminal Law 47-50
(5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law
143 (1882); J. May, The Law of Crimes 203 (2d ed. 1893). The absence of
legal prohibitions focusing on homosexual conduct may be explained in
part by noting that according to some scholars the concept of the
homosexual as a distinct category of person did not emerge until the late
19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10
(1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality
in America 121 (2d ed. 1997) ("The modern
terms homosexuality andheterosexuality do not apply to an era that had
not yet articulated these distinctions"). Thus early American sodomy laws
were not directed at homosexuals as such but instead sought to prohibit
nonprocreative sexual activity more generally. This does not suggest
approval of homosexual conduct. It does tend to show that this particular
form of conduct was not thought of as a separate category from like
conduct between heterosexual persons.
26
Laws prohibiting sodomy do not seem to have been enforced against
consenting adults acting in private. A substantial number of sodomy
prosecutions and convictions for which there are surviving records were
for predatory acts against those who could not or did not consent, as in
the case of a minor or the victim of an assault. As to these, one purpose
for the prohibitions was to ensure there would be no lack of coverage if a
predator committed a sexual assault that did not constitute rape as
defined by the criminal law. Thus the model sodomy indictments
presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed
the predatory acts of an adult man against a minor girl or minor boy.
Instead of targeting relations between consenting adults in private, 19thcentury sodomy prosecutions typically involved relations between men
and minor girls or minor boys, relations between adults involving force,
relations between adults implicating disparity in status, or relations
between men and animals.
27
To the extent that there were any prosecutions for the acts in question,
19th-century evidence rules imposed a burden that would make a
conviction more difficult to obtain even taking into account the problems
always inherent in prosecuting consensual acts committed in private.
Under then-prevailing standards, a man could not be convicted of sodomy
based upon testimony of a consenting partner, because the partner was
considered an accomplice. A partner's testimony, however, was admissible
Mataidakun|48 |
if he or she had not consented to the act or was a minor, and therefore
incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed.
1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may
explain in part the infrequency of these prosecutions. In all events that
infrequency makes it difficult to say that society approved of a rigorous
and systematic punishment of the consensual acts committed in private
and by adults. The longstanding criminal prohibition of homosexual
sodomy upon which the Bowers decision placed such reliance is as
consistent with a general condemnation of nonprocreative sex as it is with
an established tradition of prosecuting acts because of their homosexual
character.
28
The policy of punishing consenting adults for private acts was not much
discussed in the early legal literature. We can infer that one reason for this
was the very private nature of the conduct. Despite the absence of
prosecutions, there may have been periods in which there was public
criticism of homosexuals as such and an insistence that the criminal laws
be enforced to discourage their practices. But far from possessing "ancient
roots," Bowers, 478 U. S., at 192, American laws targeting same-sex
couples did not develop until the last third of the 20th century. The
reported decisions concerning the prosecution of consensual, homosexual
sodomy between adults for the years 1880-1995 are not always clear in
the details, but a significant number involved conduct in a public place.
See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15,
and n. 18.
29
It was not until the 1970's that any State singled out same-sex relations
for criminal prosecution, and only nine States have done so. See 1977 Ark.
Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847;
1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632;
1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see
also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law
invalidated as applied to different-sex couples). Post-Bowers even some of
these States did not adhere to the policy of suppressing homosexual
conduct. Over the course of the last decades, States with same-sex
prohibitions have moved toward abolishing them. See, e. g.,
Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332
(2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112
(1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App.
1996);Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also
1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. 201.193).
30
In summary, the historical grounds relied upon in Bowers are more
complex than the majority opinion and the concurring opinion by Chief
Justice Burger indicate. Their historical premises are not without doubt
and, at the very least, are overstated.
31
It must be acknowledged, of course, that the Court in Bowers was making
the broader point that for centuries there have been powerful voices to
condemn homosexual conduct as immoral. The condemnation has been
shaped by religious beliefs, conceptions of right and acceptable behavior,
and respect for the traditional family. For many persons these are not
trivial concerns but profound and deep convictions accepted as ethical
and moral principles to which they aspire and which thus determine the
course of their lives. These considerations do not answer the question
before us, however. The issue is whether the majority may use the power
of the State to enforce these views on the whole society through operation
Mataidakun|49 |
of the criminal law. "Our obligation is to define the liberty of all, not to
mandate our own moral code." Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833, 850 (1992).
32
Chief Justice Burger joined the opinion for the Court in Bowers and further
explained his views as follows: "Decisions of individuals relating to
homosexual conduct have been subject to state intervention throughout
the history of Western civilization. Condemnation of those practices is
firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S.,
at 196. As with Justice White's assumptions about history, scholarship
casts some doubt on the sweeping nature of the statement by Chief
Justice Burger as it pertains to private homosexual conduct between
consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999
U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in
the past half century are of most relevance here. These references show
an emerging awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters
pertaining to sex. "[H]istory and tradition are the starting point but not in
all cases the ending point of the substantive due process inquiry."County
of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J.,
concurring).
33
This emerging recognition should have been apparent when Bowers was
decided. In 1955 the American Law Institute promulgated the Model Penal
Code and made clear that it did not recommend or provide for "criminal
penalties for consensual sexual relations conducted in private." ALI, Model
Penal Code 213.2, Comment 2, p. 372 (1980). It justified its decision on
three grounds: (1) The prohibitions undermined respect for the law by
penalizing conduct many people engaged in; (2) the statutes regulated
private conduct not harmful to others; and (3) the laws were arbitrarily
enforced and thus invited the danger of blackmail. ALI, Model Penal Code,
Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its
laws to conform to the Model Penal Code. Other States soon followed. Brief
for Cato Institute as Amicus Curiae 15-16.
34
In Bowers the Court referred to the fact that before 1961 all 50 States had
outlawed sodomy, and that at the time of the Court's decision 24 States
and the District of Columbia had sodomy laws. 478 U. S., at 192-193.
Justice Powell pointed out that these prohibitions often were being
ignored, however. Georgia, for instance, had not sought to enforce its law
for decades. Id., at 197-198, n. 2 ("The history of nonenforcement
suggests the moribund character today of laws criminalizing this type of
private, consensual conduct").
35
The sweeping references by Chief Justice Burger to the history of Western
civilization and to Judeo-Christian moral and ethical standards did not take
account of other authorities pointing in an opposite direction. A committee
advising the British Parliament recommended in 1957 repeal of laws
punishing homosexual conduct. The Wolfenden Report: Report of the
Committee on Homosexual Offenses and Prostitution (1963). Parliament
enacted the substance of those recommendations 10 years later. Sexual
Offences Act 1967, 1.
36
Of even more importance, almost five years before Bowers was decided
the European Court of Human Rights considered a case with parallels
to Bowers and to today's case. An adult male resident in Northern Ireland
Mataidakun|50 |
alleged he was a practicing homosexual who desired to engage in

consensual homosexual conduct. The laws of Northern Ireland forbade him
that right. He alleged that he had been questioned, his home had been
searched, and he feared criminal prosecution. The court held that the laws
proscribing the conduct were invalid under the European Convention on
Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) 52.
Authoritative in all countries that are members of the Council of Europe
(21 nations then, 45 nations now), the decision is at odds with the premise
in Bowers that the claim put forward was insubstantial in our Western
civilization.
37
In our own constitutional system the deficiencies in Bowers became even
more apparent in the years following its announcement. The 25 States
with laws prohibiting the relevant conduct referenced in
the Bowers decision are reduced now to 13, of which 4 enforce their laws
only against homosexual conduct. In those States where sodomy is still
proscribed, whether for same-sex or heterosexual conduct, there is a
pattern of nonenforcement with respect to consenting adults acting in
private. The State of Texas admitted in 1994 that as of that date it had not
prosecuted anyone under those circumstances. State v. Morales, 869 S. W.
2d 941, 943.
38
Two principal cases decided after Bowers cast its holding into even more
doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), the Court reaffirmed the substantive force of the liberty
protected by the Due Process Clause. The Casey decision again confirmed
that our laws and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Id., at 851. In explaining the
respect the Constitution demands for the autonomy of the person in
making these choices, we stated as follows:
39
"These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State." Ibid.
40
Persons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do. The decision in Bowers would
deny them this right.
41
The second post-Bowers case of principal relevance
is Romer v. Evans, 517 U. S. 620(1996). There the Court struck down
class-based legislation directed at homosexuals as a violation of the Equal
Protection Clause. Romer invalidated an amendment to Colorado's
Constitution which named as a solitary class persons who were
homosexuals, lesbians, or bisexual either by "orientation, conduct,
practices or relationships," id., at 624 (internal quotation marks omitted),
and deprived them of protection under state antidiscrimination laws. We
concluded that the provision was "born of animosity toward the class of
persons affected" and further that it had no rational relation to a
legitimate governmental purpose. Id.,at 634.
42
Mataidakun|51 |
As an alternative argument in this case, counsel for the petitioners and

some amici contend that Romer provides the basis for declaring the Texas
statute invalid under the Equal Protection Clause. That is a tenable
argument, but we conclude the instant case requires us to address
whether Bowers itself has continuing validity. Were we to hold the statute
invalid under the Equal Protection Clause some might question whether a
prohibition would be valid if drawn differently, say, to prohibit the conduct
both between same-sex and different-sex participants.
43
Equality of treatment and the due process right to demand respect for
conduct protected by the substantive guarantee of liberty are linked in
important respects, and a decision on the latter point advances both
interests. If protected conduct is made criminal and the law which does so
remains unexamined for its substantive validity, its stigma might remain
even if it were not enforceable as drawn for equal protection reasons.
When homosexual conduct is made criminal by the law of the State, that
declaration in and of itself is an invitation to subject homosexual persons
to discrimination both in the public and in the private spheres. The central
holding of Bowers has been brought in question by this case, and it should
be addressed. Its continuance as precedent demeans the lives of
homosexual persons.
44
The stigma this criminal statute imposes, moreover, is not trivial. The
offense, to be sure, is but a class C misdemeanor, a minor offense in the
Texas legal system. Still, it remains a criminal offense with all that imports
for the dignity of the persons charged. The petitioners will bear on their
record the history of their criminal convictions. Just this Term we rejected
various challenges to state laws requiring the registration of sex
offenders. Smith v. Doe,538 U. S. 84 (2003); Connecticut Dept. of Public
Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted
an adult for private, consensual homosexual conduct under the statute
here in question the convicted person would come within the registration
laws of at least four States were he or she to be subject to their
jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code 18-8301 to
18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. 15:540-15:549
(West 2003); Miss. Code Ann. 45-33-21 to 45-33-57 (Lexis 2003); S. C.
Code Ann. 23-3-400 to 23-3-490 (West 2002)). This underscores the
consequential nature of the punishment and the state-sponsored
condemnation attendant to the criminal prohibition. Furthermore, the
Texas criminal conviction carries with it the other collateral consequences
always following a conviction, such as notations on job application forms,
to mention but one example.
45
The foundations of Bowers have sustained serious erosion from our recent
decisions inCasey and Romer. When our precedent has been thus
weakened, criticism from other sources is of greater significance. In the
United States criticism of Bowers has been substantial and continuing,
disapproving of its reasoning in all respects, not just as to its historical
assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan
RevolutionA Firsthand Account 81-84 (1991); R. Posner, Sex and Reason
341-350 (1992). The courts of five different States have declined to follow
it in interpreting provisions in their own state constitutions parallel to the
Due Process Clause of the Fourteenth Amendment,
see Jegleyv. Picado, 349 Ark. 600, 80 S. W. 3d 332
(2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24
(1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112
Mataidakun|52 |
(1997); Campbell v.Sundquist, 926 S. W. 2d 250 (Tenn. App.

1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
46
To the extent Bowers relied on values we share with a wider civilization, it
should be noted that the reasoning and holding in Bowers have been
rejected elsewhere. The European Court of Human Rights has followed
not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G.
& J. H. v. United Kingdom, App. No. 00044787/98, 56 (Eur. Ct. H. R., Sept.
25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R.
(1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have
taken action consistent with an affirmation of the protected right of
homosexual adults to engage in intimate, consensual conduct. See Brief
for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners
seek in this case has been accepted as an integral part of human freedom
in many other countries. There has been no showing that in this country
the governmental interest in circumscribing personal choice is somehow
more legitimate or urgent.
47
The doctrine of stare decisis is essential to the respect accorded to the
judgments of the Court and to the stability of the law. It is not, however,
an inexorable command. Payne v.Tennessee, 501 U. S. 808, 828 (1991)
("Stare decisis is not an inexorable command; rather, it `is a principle of
policy and not a mechanical formula of adherence to the latest decision' "
(quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we
noted that when a court is asked to overrule a precedent recognizing a
constitutional liberty interest, individual or societal reliance on the
existence of that liberty cautions with particular strength against reversing
course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge
in a jurisprudence of doubt"). The holding in Bowers, however, has not
induced detrimental reliance comparable to some instances where
recognized individual rights are involved. Indeed, there has been no
individual or societal reliance on Bowers of the sort that could counsel
against overturning its holding once there are compelling reasons to do
so. Bowersitself causes uncertainty, for the precedents before and after its
issuance contradict its central holding.
48
The rationale of Bowers does not withstand careful analysis. In his
dissenting opinion inBowers Justice Stevens came to these conclusions:
49
"Our prior cases make two propositions abundantly clear. First, the fact
that the governing majority in a State has traditionally viewed a particular
practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice; neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack. Second, individual
decisions by married persons, concerning the intimacies of their physical
relationship, even when not intended to produce offspring, are a form of
`liberty' protected by the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to intimate choices by
unmarried as well as married persons." 478 U. S., at 216 (footnotes and
citations omitted).
50
JUSTICE STEVENS' analysis, in our view, should have been controlling
in Bowers and should control here.
51
Mataidakun|53 |
Bowers was not correct when it was decided, and it is not correct today. It
ought not to remain binding precedent. Bowers v. Hardwick should be and
now is overruled.
52
The present case does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where
consent might not easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. The
case does involve two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle. The
petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making their private
sexual conduct a crime. Their right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without intervention of
the government. "It is a promise of the Constitution that there is a realm of
personal liberty which the government may not enter." Casey, supra, at
847. The Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the individual.
53
Had those who drew and ratified the Due Process Clauses of the Fifth
Amendment or the Fourteenth Amendment known the components of
liberty in its manifold possibilities, they might have been more specific.
They did not presume to have this insight. They knew times can blind us
to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress. As the Constitution
endures, persons in every generation can invoke its principles in their own
search for greater freedom.
54
The judgment of the Court of Appeals for the Texas Fourteenth District is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
55
It is so ordered.
Brief Fact Summary. Police found two men engaged in sexual conduct, in
their home, and they were arrested under a Texas statute that prohibited
such conduct between two men.
Synopsis of Rule of Law. While homosexual conduct is not a fundamental

right, intimate sexual relationships between consenting adults are protected
by the Fourteenth Amendment.
Facts. In Houston, Texas, Harris County Police officers were dispatched to a

private home in response to a reported weapons disturbance. They entered
(the right to enter does seem to have been questioned) the home where John
Geddes resided, and observed Lawrence and another man, Tyron Garner,
engaging in a sex act. The men were arrested, held over night and charged
Mataidakun|54 |
with violating a Texas statute making it a crime for two persons of the same
sex to engage in certain intimate sexual conduct. Specifically the statute
provided A person commits and offense if he engaged in deviate sexual
intercourse with another individual of the same sex and goes on to define
deviate sexual intercourse as follows: any contact between any part of the
genitals of one person and the mouth or anus of another person or the
penetration of the genitals or the anus of another person with an object.
The two men were then convicted before a Justice of the Pease.
Issue. The issue is whether a statute prohibiting specific sex acts violates
liberty under the Due Process Clause of the Fourteenth Amendment.
Held. Yes, intimate sexual conduct, between consenting adults, is a liberty

protected under the Due Process Clause of the Fourteenth Amendment.
Dissent. Justice Scalia: He believes that since the court does not find
homosexual sodomy to be a fundamental right, and merely describes it as an
exercise in liberty, a rational basis scrutiny should be applied, and in doing
so, the law would be upheld. In addition, the courts willingness to overturn
Bowers rather than use stare decicis, is inconsistent with other case law such
as Planned Parenthood, and thus, feels the court should be consistent and
stable rather than being manipulative in invoking the doctrine. Since all
laws, by definition (as example, prostitution, using heroin, etc) affect liberty,
they would all be unconstitutional under this courts ruling.
Concurrence.
Justice OConnor: She does not join the court in overturning Bowers, but
rather, reaches her conclusion based on equal protection, rather than any
due process clause. She states that even using a rational basis review we
have consistently held that some objectives, such as a bare desire to harm a
politically unpopular group, are not legitimate state interests. She comes
to this conclusion based on the fact that sodomy is not prohibited between
opposite sex partners, thus unfairly targets same sex partners and makes
them unequal in the eyes of the law. Since this law brands homosexuals as
criminals, it makes it more difficult for them to be treated like everyone else,
thus violating equal protection and legally sanctioning discrimination.
Discussion. (Written by Justice Kennedy) The court does not focus on

protecting sodomy specifically, but rather, personal relationships. It explains
that despite the fact that the statutes in questions purport to only prohibit
sex, Their penalties and purposes, though, have more far-reaching
consequences, touching upon the most private human conduct, sexual
behavior, and in the most private of places, the home. The court found it
alarming that the statute in question sought to control a personal
Mataidakun|55 |
relationship, stating that forming personal relationships is one of the liberties

we have, and should be able to choose such relationships without fear of
being punished or classified as criminals.
The court focuses on the fact that the laws should not target relations
between consenting adults in private, as this is what liberty hinges on. The
court states that adults are entitled to respect for their private lives, and
Their right to liberty under the Due Process Clause gives them the full right
to engage in their conduct without intervention of the government. The
court ultimately applies a rational basis review, stating that the Texas statute
in question furthers no legitimate state interest which can justify an intrusion
into a personal and private life of an individual.
This case overrules Bowers v Hardwick, which had held that there is no
fundamental right to engage in sodomy, or homosexual activities. Bowers
was based on the fact that historically sodomy has been outlawed, but this
court finds that historically it was only outlawed to protect individuals from
sexual predators, and that rationale should not be used when consenting
adults are involved, specifically stating "The present case does not involve
minors. It does not involve persons who might be injured or coerced or who
are situated in relationships where consent might not easily be refused. It
does not involve public conduct or prostitution. It does not involve whether
the government must give formal recognition to any relationship that
homosexual persons seek to enter."
PHILIPPINE CASES
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127685 July 23, 1998

BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA,
CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR
SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION
ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F.
Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Justice Brandeis considered as "the most comprehensive of rights and the
right most valued by civilized men." 1 Petitioner Ople prays that we invalidate
Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional
Mataidakun|56 |
grounds, viz: one, it is a usurpation of the power of Congress to legislate, and

two, it impermissibly intrudes on our citizenry's protected zone of privacy. We
grant the petition for the rights sought to be vindicated by the petitioner
need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996
and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign
residents with the facility to conveniently transact business with
basic service and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system to properly
and efficiently identify persons seeking basic services on social
security and reduce, if not totally eradicate fraudulent
transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the
various basic services and social security providing agencies and
other government intrumentalities is required to achieve such a
system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic
of the Philippines, by virtue of the powers vested in me by law,
do hereby direct the following:
Sec. 1. Establishment of a National Compoterized Identification
Reference System. A decentralized Identification Reference
System among the key basic services and social security
providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency
Coordinating Committee (IACC) to draw-up the implementing
guidelines and oversee the implementation of the System is
hereby created, chaired by the Executive Secretary, with the
following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Mataidakun|57 |
Sec. 3. Secretariat. The National Computer Center (NCC) is

hereby designated as secretariat to the IACC and as such shall
provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference
Number (PRN) generated by the NSO shall serve as the common
reference number to establish a linkage among concerned
agencies. The IACC Secretariat shall coordinate with the different
Social Security and Services Agencies to establish the standards
in the use of Biometrics Technology and in computer application
designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The
Office of the Press Secretary, in coordination with the National
Statistics Office, the GSIS and SSS as lead agencies and other
concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise public
awareness on the importance and use of the PRN and the Social
Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of
the system shall be sourced from the respective budgets of the
concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS
shall submit regular reports to the Office of the President through
the IACC, on the status of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the
year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed
the instant petition against respondents, then Executive Secretary Ruben
Torres and the heads of the government agencies, who as members of the
Inter-Agency Coordinating Committee, are charged with the implementation
of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT
FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
Mataidakun|58 |
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM
THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN
PRIVACY. 3
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues
relating to the standing to sue of the petitioner and the justiciability of the
case at bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308 have yet
to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of
the requisite standing to bring suit raising the issue that the issuance of A.O.
No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS funds to
implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact
that the implementing rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its
face. His action is not premature for the rules yet to be promulgated cannot
cure its fatal defects. Moreover, the respondents themselves have started
the implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of the National
Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have completed
the guidelines for the national identification system. 7 All signals from the
respondents show their unswerving will to implement A.O. No. 308 and we
need not wait for the formality of the rules to pass judgment on its
constitutionality. In this light, the dissenters insistence that we tighten the
rule on standing is not a commendable stance as its result would be to
throttle an important constitutional principle and a fundamental right.
II
Mataidakun|59 |
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates
their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by
this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and
to alter and repeal them." 8 The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. 9 The grant of legislative power to Congress is
broad, general and comprehensive. 10 The legislative body possesses plenary
power for all purposes of civil government. 11 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. 12 In fine, except as limited
by the Constitution, either expressly or impliedly, legislative power embraces
all subjects and extends to matters of general concern or common
interest. 13
While Congress is vested with the power to enact laws, the President
executes the laws. 14 The executive power is vested in the Presidents. 15 It is
generally defined as the power to enforce and administer the laws. 16 It is the
power of carrying the laws into practical operation and enforcing their due
observance. 17
As head of the Executive Department, the President is the Chief Executive.
He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. 18 He has control
over the executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive department,
bureau and office or interfere with the discretion of its officials. 19 Corollary to
the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his
control to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. 21 It enables
the President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. 22 To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An
administrative order is:
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspects of governmental operation in
Mataidakun|60 |
pursuance of his duties as administrative head shall be

promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for the
sole purpose of implementing the law and carrying out the legislative
policy. 24 We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a
general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance." 25 and
"embodies changes in administrative structure and procedures
designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with
Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of
the President, Book IV on the Executive Branch, Book V on
Constitutional Commissions, Book VI on National Government
Budgeting, and Book VII on Administrative Procedure. These Books
contain provisions on the organization, powers and general
administration of the executive, legislative and judicial branches of
government, the organization and administration of departments,
bureaus and offices under the executive branch, the organization and
functions of the Constitutional Commissions and other constitutional
bodies, the rules on the national government budget, as well as
guideline for the exercise by administrative agencies of quasilegislative and quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel and
recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties
outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law
because it confers no right, imposes no duty, affords no proctection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus
clear as daylight that without the ID, a citizen will have difficulty exercising
his rights and enjoying his privileges. Given this reality, the contention that
A.O. No. 308 gives no right and imposes no duty cannot stand.
Mataidakun|61 |
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining
the traditional limits of administrative legislation. As well stated by Fisher: ". .
. Many regulations however, bear directly on the public. It is here that
administrative legislation must he restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policymaking that Congress enacts in the form of a public law. Although
administrative regulations are entitled to respect, the authority to prescribe
rules and regulations is not an independent source of power to make
laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still
it cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to
be let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United
States Supreme Court gave more substance to the right of privacy when it
ruled that the right has a constitutional foundation. It held that there is a
right of privacy which can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras formed
by emanations from these guarantees that help give them life
and substance . . . various guarantees create zones of privacy.
The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in
its prohibition against the quartering of soldiers "in any house" in
time of peace without the consent of the owner is another facet
of that privacy. The Fourth Amendment explicitly affirms the
''right of the people to be secure in their persons, houses and
effects, against unreasonable searches and seizures." The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: "The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr. Justice,
later Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made
the use of contraceptives a criminal offence on the ground of its
amounting to an unconstitutional invasion of the right of privacy
of married persons; rightfully it stressed "a relationship lying
within the zone of privacy created by several fundamental
constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The concept of
Mataidakun|62 |
limited government has always included the idea that

governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the
individual has become increasingly important as modern
society has developed. All the forces of a technological age
industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a
totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions
of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Mataidakun|63 |
Sec. 17. No person shall be compelled to be a witness against

himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts by a person of meddling and prying into the
privacy of another. 35 It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of
another person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the
Intellectual Property Code. 43 The Rules of Court on privileged communication
likewise recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy
is a fundamental right guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is justified by some
compelling state interest and that it is narrowly drawn. A.O. No. 308 is
predicated on two considerations: (1) the need to provides our citizens and
foreigners with the facility to conveniently transact business with basic
service and social security providers and other government instrumentalities
and (2) the need to reduce, if not totally eradicate, fraudulent transactions
and misrepresentations by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant the issuance of
A.O. No. 308. But what is not arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will put our people's right
to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a
linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods
to biological facts; a mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of technologies which provide
precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics. 46 A
physiological characteristic is a relatively stable physical characteristic such
as a fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke. 47 Most biometric idenfication systems use a
card or personal identificatin number (PIN) for initial identification. The
biometric measurement is used to verify that the individual holding the card
or entering the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of identifying an individual
using a service. This technology requires one's fingertip to be scanned every
time service or access is provided. 50 Another method is the retinal scan.
Retinal scan technology employs optical technology to map the capillary
pattern of the retina of the eye. This technology produces a unique print
Mataidakun|64 |
similar to a finger print. 51 Another biometric method is known as the

"artificial nose." This device chemically analyzes the unique combination of
substances excreted from the skin of people. 52 The latest on the list of
biometric achievements is the thermogram. Scientists have found that by
taking pictures of a face using infra-red cameras, a unique heat distribution
pattern is seen. The different densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited
to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state
what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage.
Considering the banquest of options available to the implementors of A.O.
No. 308, the fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the
"generation of population data for development planning." 54 This is an
admission that the PRN will not be used solely for identification but the
generation of other data with remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government
the roving authority to store and retrieve information for a purpose other
than the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be undarplayed as the dissenters do. Pursuant to said administrative
order, an individual must present his PRN everytime he deals with a
government agency to avail of basic services and security. His transactions
with the government agency will necessarily be recorded whether it be in
the computer or in the documentary file of the agency. The individual's file
may include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the better the
chance of building a huge formidable informatin base through the electronic
linkage of the files. 55 The data may be gathered for gainful and useful
government purposes; but the existence of this vast reservoir of personal
information constitutes a covert invitation to misuse, a temptation that may
be too great for some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to
the name, address and other basic personal infomation about the
individual. 57 Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and
categorical terms how these information gathered shall he handled. It does
not provide who shall control and access the data, under what circumstances
and for what purpose. These factors are essential to safeguard the privacy
and guaranty the integrity of the information. 58 Well to note, the computer
linkage gives other government agencies access to the information. Yet,
there are no controls to guard against leakage of information. When the
access code of the control programs of the particular computer system is
Mataidakun|65 |
broken, an intruder, without fear of sanction or penalty, can make use of the
data for whatever purpose, or worse, manipulate the data stored within the
system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes. 60 The lack of proper safeguards in this
regard of A.O. No. 308 may interfere with the individual's liberty of abode
and travel by enabling authorities to track down his movement; it may also
enable unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures. 61 The possibilities of abuse and misuse
of the PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or placed on
his ID, much less verify the correctness of the data encoded. 62 They threaten
the very abuses that the Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradleto-grave dossier on an individual and transmit it over a national network is
one of the most graphic threats of the computer revolution. 64 The computer
is capable of producing a comprehensive dossier on individuals out of
information given at different times and for varied purposes. 65 It can
continue adding to the stored data and keeping the information up to date.
Retrieval of stored date is simple. When information of a privileged character
finds its way into the computer, it can be extracted together with other data
on the subject. 66 Once extracted, the information is putty in the hands of
any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's
liberty if it would not immediately smother the sparks that endanger their
rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the Natioal ID and the use
of biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by
his conduct, the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as reasonable.67 The
factual circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to create or
diminish this expectation. 69 The use of biometrics and computer technology
in A.O. No. 308 does not assure the individual of a reasonable expectation of
privacy. 70 As technology advances, the level of reasonably expected privacy
decreases. 71 The measure of protection granted by the reasonable
expectation diminishes as relevant technology becomes more widely
accepted. 72 The security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in hardware and
software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.
Mataidakun|66 |
The rules and regulations to be by the IACC cannot remedy this fatal defect.
Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. gives the IACC virtually infettered discretion to determine the
metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure
by any person of data furnished by the individual to the NSO with
imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure
of SSS employment records and reports. 74These laws, however, apply to
records and data with the NSO and the SSS. It is not clear whether they may
be applied to data with the other government agencies forming part of the
National ID System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of
the right of privacy by using the rational relationship test. 75 He stressed that
the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate population data for
development planning. He cocludes that these purposes justify the
incursions into the right to privacy for the means are rationally related to the
end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a
valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his
sources of income and expenses, did not infringe on the individual's right to
privacy. The law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019
is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. IN the case at bar,
A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hod that
when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It
will not do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to prove
that their act is not irrational for a basic right can be diminished, if not
defeated, even when the government does not act irrationally. They must
satisfactorily show the presence of compelling state interests and that the
law, rule or regulation is narrowly drawn to preclude abuses. This approach is
demanded by the 1987 Constitution whose entire matrix is designed to
protect human rights and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not put in danger the
rights protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In
Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of
the names and addresses of all persons who obtained certain drugs pursuant
to a doctor's prescription. The New York State Controlled Substance Act of
Mataidakun|67 |
1972 required physicians to identify parties obtaining prescription drugs

enumerated in the statute, i.e., drugs with a recognized medical use but with
a potential for abuse, so that the names and addresses of the patients can
be recorded in a centralized computer file of the State Department of Health.
The plaintiffs, who were patients and doctors, claimed that some people
might decline necessary medication because of their fear that the
computerized data may be readily available and open to public disclosure;
and that once disclosed, it may stigmatize them as drug addicts. 80 The
plaintiffs alleged that the statute invaded a constitutionally protected zone of
privacy, i.e., the individual interest in avoiding disclosure of personal
matters, and the interest in independence in making certain kinds of
important decisions. The U.S. Supreme Court held that while an individual's
interest in avoiding disclosuer of personal matter is an aspect of the right to
privacy, the statute did not pose a grievous threat to establish a
constitutional violation. The Court found that the statute was necessary to
aid in the enforcement of laws designed to minimize the misuse of
dangerous drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommmendation by a
specially appointed commission which held extensive hearings on the matter.
Moreover, the statute was narrowly drawn and contained numerous
safeguards against indiscriminate disclosure. The statute laid down the
procedure and requirements for the gathering, storage and retrieval of the
informatin. It ebumerated who were authorized to access the data. It also
prohibited public disclosure of the data by imposing penalties for its
violation. In view of these safeguards, the infringement of the patients' right
to privacy was justified by a valid exercise of police power. As we discussed
above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court
is not per se agains the use of computers to accumulate, store, process,
retvieve and transmit data to improve our bureaucracy. Computers work
wonders to achieve the efficiency which both government and private
industry seek. Many information system in different countries make use of
the computer to facilitate important social objective, such as better law
enforcement, faster delivery of public services, more efficient management
of credit and insurance programs, improvement of telecommunications and
streamlining of financial activities. 81 Used wisely, data stored in the
computer could help good administration by making accurate and
comprehensive information for those who have to frame policy and make key
decisions. 82 The benefits of the computer has revolutionized information
technology. It developed the internet, 83 introduced the concept of
cyberspace 84 and the information superhighway where the individual, armed
only with his personal computer, may surf and search all kinds and classes of
information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and
the common good. It merely requires that the law be narrowly focused 85 and
a compelling interest justify such intrusions. 86 Intrusions into the right must
be accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades
individual privacy will be subjected by this Court to strict scrutiny. The reason
for this stance was laid down in Morfe v. Mutuc, to wit:
Mataidakun|68 |
The concept of limited government has always included the idea

that governmental powers stop short of certain intrusions into
the personal life of the citizen. This is indeed one of the basic
disctinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the
individual has become increasingly important as modern
society has developed. All the forces of a technological age
industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a
totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources governments,
journalists, employers, social scientists, etc. 88 In th case at bar, the threat
comes from the executive branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy by giving information
about themselves on the pretext that it will facilitate delivery of basic
services. Given the record-keeping power of the computer, only the
indifferent fail to perceive the danger that A.O. No. 308 gives the government
the power to compile a devastating dossier against unsuspecting citizens. It
is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing
result could be that everyone will live burdened by an unerasable record of
his past and his limitations. In a way, the threat is that because of its recordkeeping, the society will have lost its benign capacity to forget." 89 Oblivious
to this counsel, the dissents still say we should not be too quick in labelling
the right to privacy as a fundamental right. We close with the statement that
the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference
System" declared null and void for being unconstitutional.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167798
April 19, 2006
KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONSKILUSANG MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P.
DAPULANG, SALVADOR T. CARRANZA, MARTIN T. CUSTODIO, JR. and
ROQUE M. TAN, Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT
Mataidakun|69 |
AUTHORITY, and THE SECRETARY, DEPARTMENT OF BUDGET and

MANAGEMENT, Respondents.
x-----------------------------------x
G.R. No. 167930
April 19, 2006
BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A.

CASIO, and JOEL G. VIRADOR, GABRIELA WOMENS PARTY
Representative LIZA L. MAZA, ANAKPAWIS Representatives RAFAEL
V. MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G. ESCUDERO,
Rep. EDUARDO C. ZIALCITA, Rep. LORENZO R. TAADA III, DR. CAROL
PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN, MARIE
HILAO-ENRIQUEZ of KARAPATAN, ANTONIO L. TINIO of ACT,
FERDINAND GAITE of COURAGE, GIOVANNI A. TAPANG of AGHAM,
WILFREDO MARBELLA GARCIA, of KMP, LANA LINABAN of GABRIELA,
AMADO GAT INCIONG, RENATO CONSTANTINO, JR., DEAN PACIFICO H.
AGABIN, SHARON R. DUREMDES of the NATIONAL COUNCIL OF
CHURCHES IN THE PHILIPPINES, and BRO. EDMUNDO L. FERNANDEZ
(FSC) of the ASSOCIATION OF MAJOR RELIGIOUS SUPERIORS OF THE
PHILIPPINES (AMRSP), Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO
NERI, in his capacity as Director-General of the NATIONAL
ECONOMIC and DEVELOPMENT AUTHORITY (NEDA) and the
Administrator of the NATIONAL STATISTICS OFFICE
(NSO), Respondents.
DECISION
CARPIO, J.:
This case involves two consolidated petitions for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005,
reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND
CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR
IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE
DIRECTOR-GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY
TO IMPLEMENT THE SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have
created unnecessary and costly redundancies and higher costs to
government, while making it inconvenient for individuals to be holding
several identification cards;
WHEREAS, there is urgent need to streamline and integrate the processes
and issuance of identification cards in government to reduce costs and to
provide greater convenience for those transacting business with
government;
Mataidakun|70 |
WHEREAS, a unified identification system will facilitate private businesses,

enhance the integrity and reliability of government-issued identification
cards in private transactions, and prevent violations of laws involving false
names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines by virtue of the powers vested in me by law, do
hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID)
system for government.1avvphil.net All government agencies,
including government-owned and controlled corporations, are hereby
directed to adopt a unified multi-purpose ID system to ensure the attainment
of the following objectives:
a. To reduce costs and thereby lessen the financial burden on both the
government and the public brought about by the use of multiple ID
cards and the maintenance of redundant database containing the
same or related information;
b. To ensure greater convenience for those transacting business with
the government and those availing of government services;
c. To facilitate private businesses and promote the wider use of the
unified ID card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued ID
cards; and
e. To facilitate access to and delivery of quality and effective
government service.
Section 2. Coverage All government agencies and government-owned
and controlled corporations issuing ID cards to their members or constituents
shall be covered by this executive order.
Section 3. Data requirement for the unified ID system The data to be
collected and recorded by the participating agencies shall be limited to the
following:
Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
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Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating agency
and a common reference number shall form part of the stored ID data and,
together with at least the first five items listed above, including the print of
the right thumbmark, or any of the fingerprints as collected and stored, shall
appear on the face or back of the ID card for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic and
Development Authority, to Harmonize All Government Identification
Systems. The Director-General, National Economic Development Authority,
is hereby authorized to streamline and harmonize all government ID
systems.
Section 5. Functions and responsibilities of the Director-General,
National Economic and Development Authority. In addition to his
organic functions and responsibilities, the Director-General, National
Economic and Development Authority, shall have the following functions and
responsibilities:
a. Adopt within sixty (60) days from the effectivity of this executive
order a unified government ID system containing only such data and
features, as indicated in Section 3 above, to validly establish the
identity of the card holder:
b. Enter into agreements with local governments, through their
respective leagues of governors or mayors, the Commission on
Elections (COMELEC), and with other branches or instrumentalities of
the government, for the purpose of ensuring government-wide
adoption of and support to this effort to streamline the ID systems in
government;
b. Call on any other government agency or institution, or create sub
committees or technical working groups, to provide such assistance as
may be necessary or required for the effective performance of its
functions; and
d. Promulgate such rules or regulations as may be necessary in
pursuance of the objectives of this executive order.
Section 6. Safeguards. The Director-General, National Economic and
Development Authority, and the pertinent agencies shall adopt such
safeguard as may be necessary and adequate to ensure that the right to
privacy of an individual takes precedence over efficient public service
delivery. Such safeguards shall, as a minimum, include the following:
a. The data to be recorded and stored, which shall be used only for
purposes of establishing the identity of a person, shall be limited to
those specified in Section 3 of this executive order;
Mataidakun|72 |
b. In no case shall the collection or compilation of other data in

violation of a persons right to privacy shall be allowed or tolerated
under this order;
c. Stringent systems of access control to data in the identification
system shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated
as strictly confidential and a personal or written authorization of the
Owner shall be required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced
security features and cryptographic technology; and
f. A written request by the Owner of the identification card shall be
required for any correction or revision of relevant data, or under such
conditions as the participating agency issuing the identification card
shall prescribe.
Section 7. Funding. Such funds as may be recommended by the
Department of Budget and Management shall be provided to carry out the
objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or
portions thereof, which are inconsistent with this executive order, are hereby
revoked, amended or modified accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15)
days after its publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two
Thousand and Five.
Thus, under EO 420, the President directs all government agencies and
government-owned and controlled corporations to adopt a uniform data
collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because
it constitutes usurpation of legislative functions by the executive branch of
the government. Furthermore, they allege that EO 420 infringes on the
citizens right to privacy.1
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the
following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the
decision of this Honorable Court inOple v. Torres et al., G.R. No.
127685, July 23, 1998. It also violates RA 8282 otherwise known as the
Social Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as she
has no power to issue EO 420. Furthermore, the implementation of the
EO will use public funds not appropriated by Congress for that purpose.
3. EO 420 violates the constitutional provisions on the right to privacy
(i) It allows access to personal confidential data without the
owners consent.
Mataidakun|73 |
(ii) EO 420 is vague and without adequate safeguards or

penalties for any violation of its provisions.
(iii) There are no compelling reasons that will legitimize the
necessity of EO 420.
4. Granting without conceding that the President may issue EO 420,
the Executive Order was issued without public hearing.
5. EO 420 violates the Constitutional provision on equal protection of
laws and results in the discriminatory treatment of and penalizes those
without ID.2
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO 420
is a usurpation of legislative power by the President. Second, petitioners
claim that EO 420 infringes on the citizens right to privacy.
Respondents question the legal standing of petitioners and the ripeness of
the petitions. Even assuming that petitioners are bereft of legal standing, the
Court considers the issues raised under the circumstances of paramount
public concern or of transcendental significance to the people. The petitions
also present a justiciable controversy ripe for judicial determination because
all government entities currently issuing identification cards are mandated to
implement EO 420, which petitioners claim is patently unconstitutional.
Hence, the Court takes cognizance of the petitions.
The Courts Ruling
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, "Coverage. All government agencies and
government-owned and controlled corporations issuing ID cards to their
members or constituents shall be covered by this executive order." EO 420
applies only to government entities that issue ID cards as part of their
functions under existing laws. These government entities have already been
issuing ID cards even prior to EO 420. Examples of these government entities
are the GSIS,3 SSS,4 Philhealth,5 Mayors Office,6 LTO,7 PRC,8 and similar
government entities.
Section 1 of EO 420 directs these government entities to "adopt a unified
multi-purpose ID system." Thus, all government entities that issue IDs as
part of their functions under existing laws are required to adopt a uniform
data collection and format for their IDs. Section 1 of EO 420 enumerates the
purposes of the uniform data collection and format, namely:
a. To reduce costs and thereby lessen the financial burden on both the
government and the public brought about by the use of multiple ID
cards and the maintenance of redundant database containing the
same or related information;
b. To ensure greater convenience for those transacting business with
the government and those availing of government services;
Mataidakun|74 |
c. To facilitate private businesses and promote the wider use of the

unified ID card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued ID
cards; and
e. To facilitate access to and delivery of quality and effective
government service.
In short, the purposes of the uniform ID data collection and ID format are to
reduce costs, achieve efficiency and reliability, insure compatibility, and
provide convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the
uniform ID system to only 14 specific items, namely: (1) Name; (2) Home
Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7) Place of
Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12)
Two index fingers and two thumbmarks; (13) Any prominent distinguishing
features like moles or others; and (14) Tax Identification Number.
These limited and specific data are the usual data required for personal
identification by government entities, and even by the private sector. Any
one who applies for or renews a drivers license provides to the LTO all these
14 specific data.
At present, government entities like LTO require considerably more data from
applicants for identification purposes. EO 420 will reduce the data required to
be collected and recorded in the ID databases of the government entities.
Government entities cannot collect or record data, for identification
purposes, other than the 14 specific data.
Various laws allow several government entities to collect and record data for
their ID systems, either expressly or impliedly by the nature of the functions
of these government entities. Under their existing ID systems, some
government entities collect and record more data than what EO 420 allows.
At present, the data collected and recorded by government entities are
disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,9 the IDs that the Court issues to all its
employees, including the Justices, contain 15 specific data, namely: (1)
Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6)
Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11)
Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number;
(14) Name and Address of Person to be Notified in Case of Emergency; and
(15) Signature. If we consider that the picture in the ID can generally also
show the sex of the employee, the Courts ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only
"the first five items listed" in Section 3, plus the fingerprint, agency number
and the common reference number, or only eight specific data. Thus, at
present, the Supreme Courts ID contains far more data than the proposed
uniform ID for government entities under EO 420. The nature of the data
contained in the Supreme Court ID is also far more financially sensitive,
specifically the Tax Identification Number.
Making the data collection and recording of government entities unified, and
making their ID formats uniform, will admittedly achieve substantial benefits.
Mataidakun|75 |
These benefits are savings in terms of procurement of equipment and

supplies, compatibility in systems as to hardware and software, ease of
verification and thus increased reliability of data, and the user-friendliness of
a single ID format for all government entities.
There is no dispute that government entities can individually limit the
collection and recording of their data to the 14 specific items in Section 3 of
EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such an
act is certainly within the authority of the heads or governing boards of the
government entities that are already authorized under existing laws to issue
IDs.
A unified ID system for all these government entities can be achieved in
either of two ways. First, the heads of these existing government entities can
enter into a memorandum of agreement making their systems uniform. If the
government entities can individually adopt a format for their own ID pursuant
to their regular functions under existing laws, they can also adopt by mutual
agreement a uniform ID format, especially if the uniform format will result in
substantial savings, greater efficiency, and optimum compatibility. This is
purely an administrative matter, and does not involve the exercise of
legislative power.
Second, the President may by executive or administrative order direct the
government entities under the Executive department to adopt a uniform ID
data collection and format. Section 17, Article VII of the 1987 Constitution
provides that the "President shall have control of all executive departments,
bureaus and offices." The same Section also mandates the President to
"ensure that the laws be faithfully executed."
Certainly, under this constitutional power of control the President can direct
all government entities, in the exercise of their functions under existing laws,
to adopt a uniform ID data collection and ID format to achieve savings,
efficiency, reliability, compatibility, and convenience to the public. The
Presidents constitutional power of control is self-executing and does not
need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch
of government and does not extend to the Judiciary or to the independent
constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or
to the COMELEC which under existing laws is also authorized to issue voters
ID cards.10 This only shows that EO 420 does not establish a national ID
system because legislation is needed to establish a single ID system that is
compulsory for all branches of government.
The Constitution also mandates the President to ensure that the laws are
faithfully executed. There are several laws mandating government entities to
reduce costs, increase efficiency, and in general, improve public
services.11 The adoption of a uniform ID data collection and format under EO
420 is designed to reduce costs, increase efficiency, and in general, improve
public services. Thus, in issuing EO 420, the President is simply performing
the constitutional duty to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to
promulgate. The President has not usurped legislative power in issuing EO
420. EO 420 is an exercise of Executive power the Presidents constitutional
power of control over the Executive department. EO 420 is also compliance
Mataidakun|76 |
by the President of the constitutional duty to ensure that the laws are
faithfully executed.
Legislative power is the authority to make laws and to alter or repeal them.
In issuing EO 420, the President did not make, alter or repeal any law but
merely implemented and executed existing laws. EO 420 reduces costs, as
well as insures efficiency, reliability, compatibility and user-friendliness in the
implementation of current ID systems of government entities under existing
laws. Thus, EO 420 is simply an executive issuance and not an act of
legislation.
The act of issuing ID cards and collecting the necessary personal data for
imprinting on the ID card does not require legislation. Private employers
routinely issue ID cards to their employees. Private and public schools also
routinely issue ID cards to their students. Even private clubs and associations
issue ID cards to their members. The purpose of all these ID cards is simply
to insure the proper identification of a person as an employee, student, or
member of a club. These ID cards, although imposed as a condition for
exercising a privilege, are voluntary because a person is not compelled to be
an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID
card system. First, when the implementation of an ID card system requires a
special appropriation because there is no existing appropriation for such
purpose. Second, when the ID card system is compulsory on all branches of
government, including the independent constitutional commissions, as well
as compulsory on all citizens whether they have a use for the ID card or not.
Third, when the ID card system requires the collection and recording of
personal data beyond what is routinely or usually required for such purpose,
such that the citizens right to privacy is infringed.
In the present case, EO 420 does not require any special appropriation
because the existing ID card systems of government entities covered by EO
420 have the proper appropriation or funding. EO 420 is not compulsory on
all branches of government and is not compulsory on all citizens. EO 420
requires a very narrow and focused collection and recording of personal data
while safeguarding the confidentiality of such data. In fact, the data collected
and recorded under EO 420 are far less than the data collected and recorded
under the ID systems existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not
compel all citizens to have an ID card. EO 420 applies only to government
entities that under existing laws are already collecting data and issuing ID
cards as part of their governmental functions. Every government entity that
presently issues an ID card will still issue its own ID card under its own name.
The only difference is that the ID card will contain only the five data specified
in Section 3 of EO 420, plus the fingerprint, the agency ID number, and the
common reference number which is needed for cross-verification to ensure
integrity and reliability of identification.
This Court should not interfere how government entities under the Executive
department should undertake cost savings, achieve efficiency in operations,
insure compatibility of equipment and systems, and provide user-friendly
service to the public. The collection of ID data and issuance of ID cards are
day-to-day functions of many government entities under existing laws. Even
the Supreme Court has its own ID system for employees of the Court and all
first and second level courts. The Court is even trying to unify its ID system
Mataidakun|77 |
with those of the appellate courts, namely the Court of Appeals,

Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts
within the Judiciary. The same is true for government entities under the
Executive department. If government entities under the Executive
department decide to unify their existing ID data collection and ID card
issuance systems to achieve savings, efficiency, compatibility and
convenience, such act does not involve the exercise of any legislative power.
Thus, the issuance of EO 420 does not constitute usurpation of legislative
power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government entities
have been issuing ID cards in the performance of their governmental
functions. There have been no complaints from citizens that the ID cards of
these government entities violate their right to privacy. There have also been
no complaints of abuse by these government entities in the collection and
recording of personal identification data.
In fact, petitioners in the present cases do not claim that the ID systems of
government entities prior to EO 420 violate their right to privacy. Since
petitioners do not make such claim, they even have less basis to complain
against the unified ID system under EO 420. The data collected and stored
for the unified ID system under EO 420 will be limited to only 14 specific
data, and the ID card itself will show only eight specific data. The data
collection, recording and ID card system under EO 420 will even require less
data collected, stored and revealed than under the disparate systems prior
to EO 420.
Prior to EO 420, government entities had a free hand in determining the kind,
nature and extent of data to be collected and stored for their ID systems.
Under EO 420, government entities can collect and record only the 14
specific data mentioned in Section 3 of EO 420. In addition, government
entities can show in their ID cards only eight of these specific data, seven
less data than what the Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to government
entities prescribing safeguards on the collection, recording, and disclosure of
personal identification data to protect the right to privacy. Now, under
Section 5 of EO 420, the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only for
purposes of establishing the identity of a person, shall be limited to
those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in
violation of a persons right to privacy be allowed or tolerated under
this order;
c. Stringent systems of access control to data in the identification
system shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated
as strictly confidential and a personal or written authorization of the
Owner shall be required for access and disclosure of data;
Mataidakun|78 |
e. The identification card to be issued shall be protected by advanced

security features and cryptographic technology;
f. A written request by the Owner of the identification card shall be
required for any correction or revision of relevant data, or under such
conditions as the participating agency issuing the identification card
shall prescribe.
On its face, EO 420 shows no constitutional infirmity because it even
narrowly limits the data that can be collected, recorded and shown compared
to the existing ID systems of government entities. EO 420 further provides
strict safeguards to protect the confidentiality of the data collected, in
contrast to the prior ID systems which are bereft of strict administrative
safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by
government entities. Some one hundred countries have compulsory national
ID systems, including democracies such as Spain, France, Germany, Belgium,
Greece, Luxembourg, and Portugal. Other countries which do not have
national ID systems, like the United States, Canada, Australia, New Zealand,
Ireland, the Nordic Countries and Sweden, have sectoral cards for health,
social or other public services.12 Even with EO 420, the Philippines will still
fall under the countries that do not have compulsory national ID systems but
allow only sectoral cards for social security, health services, and other
specific purposes.
Without a reliable ID system, government entities like GSIS, SSS, Philhealth,
and LTO cannot perform effectively and efficiently their mandated functions
under existing laws. Without a reliable ID system, GSIS, SSS, Philhealth and
similar government entities stand to suffer substantial losses arising from
false names and identities. The integrity of the LTOs licensing system will
suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy,
namely, Griswold v. Connecticut,13U.S. Justice Department v. Reporters
Committee for Freedom of the Press,14 and Whalen v. Roe.15 The last two
decisions actually support the validity of EO 420, while the first is
inapplicable to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law
that prohibited the use and distribution of contraceptives because
enforcement of the law would allow the police entry into the bedrooms of
married couples. Declared the U.S. Supreme Court: "Would we allow the
police to search the sacred precincts of the marital bedrooms for telltale
signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship." Because the facts and the
issue involved in Griswold are materially different from the present case,
Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect
and store information on individuals from public records nationwide but
whether the State could withhold such information from the press. The
premise of the issue in U.S. Justice Department is that the State can collect
and store in a central database information on citizens gathered from public
records across the country. In fact, the law authorized the Department of
Justice to collect and preserve fingerprints and other criminal identification
records nationwide. The law also authorized the Department of Justice to
Mataidakun|79 |
exchange such information with "officials of States, cities and other

institutions." The Department of Justice treated such information as
confidential. A CBS news correspondent and the Reporters Committee
demanded the criminal records of four members of a family pursuant to the
Freedom of Information Act. The U.S. Supreme Court ruled that the Freedom
of Information Act expressly exempts release of information that would
"constitute an unwarranted invasion of personal privacy," and the
information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal
data collected and recorded under EO 420 are treated as "strictly
confidential" under Section 6(d) of EO 420. These data are not only strictly
confidential but also personal matters. Section 7, Article III of the 1987
Constitution grants the "right of the people to information on matters of
public concern." Personal matters are exempt or outside the coverage of the
peoples right to information on matters of public concern. The data treated
as "strictly confidential" under EO 420 being private matters and not matters
of public concern, these data cannot be released to the public or the press.
Thus, the ruling in U.S. Justice Department does not collide with EO 420 but
actually supports the validity EO 420.
Whalen v. Roe is the leading American case on the constitutional protection
for control over information. In Whalen, the U.S. Supreme Court upheld the
validity of a New York law that required doctors to furnish the government
reports identifying patients who received prescription drugs that have a
potential for abuse. The government maintained a central computerized
database containing the names and addresses of the patients, as well as the
identity of the prescribing doctors. The law was assailed because the
database allegedly infringed the right to privacy of individuals who want to
keep their personal matters confidential. The U.S. Supreme Court rejected
the privacy claim, and declared:
Disclosures of private medical information to doctors, to hospital personnel,
to insurance companies, and to public health agencies are often an essential
part of modern medical practice even when the disclosure may reflect
unfavorably on the character of the patient. Requiring such disclosures to
representatives of the State having responsibility for the health of the
community does not automatically amount to an impermissible invasion of
privacy. (Emphasis supplied)
Compared to the personal medical data required for disclosure to the New
York State in Whalen, the 14 specific data required for disclosure to the
Philippine government under EO 420 are far less sensitive and far less
personal. In fact, the 14 specific data required under EO 420 are routine data
for ID systems, unlike the sensitive and potentially embarrassing medical
records of patients taking prescription drugs. Whalen, therefore, carries
persuasive force for upholding the constitutionality of EO 420 as nonviolative of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In
Planned Parenthood of Central Missouri v. Danforth,16 the U.S. Supreme Court
upheld the validity of a law that required doctors performing abortions to fill
up forms, maintain records for seven years, and allow the inspection of such
records by public health officials. The U.S. Supreme Court ruled that
"recordkeeping and reporting requirements that are reasonably directed to
the preservation of maternal health and that properly respect a patients
confidentiality and privacy are permissible."
Mataidakun|80 |
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the

U.S. Supreme Court upheld a law that required doctors performing an
abortion to file a report to the government that included the doctors name,
the womans age, the number of prior pregnancies and abortions that the
woman had, the medical complications from the abortion, the weight of the
fetus, and the marital status of the woman. In case of state-funded
institutions, the law made such information publicly available. In Casey, the
U.S. Supreme Court stated: "The collection of information with respect to
actual patients is a vital element of medical research, and so it cannot be
said that the requirements serve no purpose other than to make abortion
more difficult."
Compared to the disclosure requirements of personal data that the U.S.
Supreme Court have upheld in Whalen, Danforth and Casey as not violative
of the right to privacy, the disclosure requirements under EO 420 are far
benign and cannot therefore constitute violation of the right to privacy. EO
420 requires disclosure of 14 personal data that are routine for ID purposes,
data that cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to privacy.
Petitioners cannot show such violation by a mere facial examination of EO
420 because EO 420 narrowly draws the data collection, recording and
exhibition while prescribing comprehensive safeguards. Ople v. Torres18 is not
authority to hold that EO 420 violates the right to privacy because in that
case the assailed executive issuance, broadly drawn and devoid of
safeguards, was annulled solely on the ground that the subject matter
required legislation. As then Associate Justice, now Chief Justice Artemio V.
Panganiban noted in his concurring opinion in Ople v. Torres, "The voting is
decisive only on the need for appropriate legislation, and it is only on this
ground that the petition is granted by this Court."
EO 420 applies only to government entities that already maintain ID systems
and issue ID cards pursuant to their regular functions under existing laws. EO
420 does not grant such government entities any power that they do not
already possess under existing laws. In contrast, the assailed executive
issuance in Ople v. Torres sought to establish a "National Computerized
Identification Reference System,"19 a national ID system that did not exist
prior to the assailed executive issuance. Obviously, a national ID card system
requires legislation because it creates a new national data collection and
card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but
makes the existing sectoral card systems of government entities like GSIS,
SSS, Philhealth and LTO less costly, more efficient, reliable and user-friendly
to the public. Hence, EO 420 is a proper subject of executive issuance under
the Presidents constitutional power of control over government entities in
the Executive department, as well as under the Presidents constitutional
duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is
declared VALID.
SO ORDERED.
epublic of the Philippines
SUPREME COURT
Manila
Mataidakun|81 |
SECOND DIVISION
G.R. No. 162994
September 17, 2004
DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A.

TECSON, petitioners,
vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.
RESOLUTION
TINGA, J.:
Confronting the Court in this petition is a novel question, with constitutional
overtones, involving the validity of the policy of a pharmaceutical company
prohibiting its employees from marrying employees of any competitor
company.
This is a Petition for Review on Certiorari assailing the Decision1 dated May
19, 2003 and the Resolution dated March 26, 2004 of the Court of Appeals in
CA-G.R. SP No. 62434.2
Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome
Philippines, Inc. (Glaxo) as medical representative on October 24, 1995, after
Tecson had undergone training and orientation.
Thereafter, Tecson signed a contract of employment which stipulates, among
others, that he agrees to study and abide by existing company rules; to
disclose to management any existing or future relationship by consanguinity
or affinity with co-employees or employees of competing drug companies
and should management find that such relationship poses a possible conflict
of interest, to resign from the company.
The Employee Code of Conduct of Glaxo similarly provides that an employee
is expected to inform management of any existing or future relationship by
consanguinity or affinity with co-employees or employees of competing drug
companies. If management perceives a conflict of interest or a potential
conflict between such relationship and the employees employment with the
company, the management and the employee will explore the possibility of a
"transfer to another department in a non-counterchecking position" or
preparation for employment outside the company after six months.
Tecson was initially assigned to market Glaxos products in the Camarines
Sur-Camarines Norte sales area.
Subsequently, Tecson entered into a romantic relationship with Bettsy, an
employee of Astra Pharmaceuticals3(Astra), a competitor of Glaxo. Bettsy
was Astras Branch Coordinator in Albay. She supervised the district
managers and medical representatives of her company and prepared
marketing strategies for Astra in that area.
Even before they got married, Tecson received several reminders from his
District Manager regarding the conflict of interest which his relationship with
Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in
September 1998.
In January 1999, Tecsons superiors informed him that his marriage to Bettsy
gave rise to a conflict of interest. Tecsons superiors reminded him that he
Mataidakun|82 |
and Bettsy should decide which one of them would resign from their jobs,
although they told him that they wanted to retain him as much as possible
because he was performing his job well.
Tecson requested for time to comply with the company policy against
entering into a relationship with an employee of a competitor company. He
explained that Astra, Bettsys employer, was planning to merge with Zeneca,
another drug company; and Bettsy was planning to avail of the redundancy
package to be offered by Astra. With Bettsys separation from her company,
the potential conflict of interest would be eliminated. At the same time, they
would be able to avail of the attractive redundancy package from Astra.
In August 1999, Tecson again requested for more time resolve the problem.
In September 1999, Tecson applied for a transfer in Glaxos milk division,
thinking that since Astra did not have a milk division, the potential conflict of
interest would be eliminated. His application was denied in view of Glaxos
"least-movement-possible" policy.
In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao CityAgusan del Sur sales area. Tecson asked Glaxo to reconsider its decision, but
his request was denied.
Tecson sought Glaxos reconsideration regarding his transfer and brought the
matter to Glaxos Grievance Committee. Glaxo, however, remained firm in its
decision and gave Tescon until February 7, 2000 to comply with the transfer
order. Tecson defied the transfer order and continued acting as medical
representative in the Camarines Sur-Camarines Norte sales area.
During the pendency of the grievance proceedings, Tecson was paid his
salary, but was not issued samples of products which were competing with
similar products manufactured by Astra. He was also not included in product
conferences regarding such products.
Because the parties failed to resolve the issue at the grievance machinery
level, they submitted the matter for voluntary arbitration. Glaxo offered
Tecson a separation pay of one-half () month pay for every year of service,
or a total of P50,000.00 but he declined the offer. On November 15, 2000,
the National Conciliation and Mediation Board (NCMB) rendered
its Decision declaring as valid Glaxos policy on relationships between its
employees and persons employed with competitor companies, and affirming
Glaxos right to transfer Tecson to another sales territory.
Aggrieved, Tecson filed a Petition for Review with the Court of Appeals
assailing the NCMB Decision.
On May 19, 2003, the Court of Appeals promulgated its Decision denying
the Petition for Review on the ground that the NCMB did not err in rendering
its Decision. The appellate court held that Glaxos policy prohibiting its
employees from having personal relationships with employees of competitor
companies is a valid exercise of its management prerogatives.4
Tecson filed a Motion for Reconsideration of the appellate
courts Decision, but the motion was denied by the appellate court in
its Resolution dated March 26, 2004.5
Petitioners filed the instant petition, arguing therein that (i) the Court of
Appeals erred in affirming the NCMBs finding that the Glaxos policy
Mataidakun|83 |
prohibiting its employees from marrying an employee of a competitor

company is valid; and (ii) the Court of Appeals also erred in not finding that
Tecson was constructively dismissed when he was transferred to a new sales
territory, and deprived of the opportunity to attend products seminars and
training sessions.6
Petitioners contend that Glaxos policy against employees marrying
employees of competitor companies violates the equal protection clause of
the Constitution because it creates invalid distinctions among employees on
account only of marriage. They claim that the policy restricts the employees
right to marry.7
They also argue that Tecson was constructively dismissed as shown by the
following circumstances: (1) he was transferred from the Camarines SurCamarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he
suffered a diminution in pay, (3) he was excluded from attending seminars
and training sessions for medical representatives, and (4) he was prohibited
from promoting respondents products which were competing with Astras
products.8
In its Comment on the petition, Glaxo argues that the company policy
prohibiting its employees from having a relationship with and/or marrying an
employee of a competitor company is a valid exercise of its management
prerogatives and does not violate the equal protection clause; and that
Tecsons reassignment from the Camarines Norte-Camarines Sur sales area
to the Butuan City-Surigao City and Agusan del Sur sales area does not
amount to constructive dismissal.9
Glaxo insists that as a company engaged in the promotion and sale of
pharmaceutical products, it has a genuine interest in ensuring that its
employees avoid any activity, relationship or interest that may conflict with
their responsibilities to the company. Thus, it expects its employees to avoid
having personal or family interests in any competitor company which may
influence their actions and decisions and consequently deprive Glaxo of
legitimate profits. The policy is also aimed at preventing a competitor
company from gaining access to its secrets, procedures and policies.10
It likewise asserts that the policy does not prohibit marriage per se but only
proscribes existing or future relationships with employees of competitor
companies, and is therefore not violative of the equal protection clause. It
maintains that considering the nature of its business, the prohibition is based
on valid grounds.11
According to Glaxo, Tecsons marriage to Bettsy, an employee of Astra, posed
a real and potential conflict of interest. Astras products were in direct
competition with 67% of the products sold by Glaxo. Hence, Glaxos
enforcement of the foregoing policy in Tecsons case was a valid exercise of
its management prerogatives.12 In any case, Tecson was given several
months to remedy the situation, and was even encouraged not to resign but
to ask his wife to resign form Astra instead.13
Glaxo also points out that Tecson can no longer question the assailed
company policy because when he signed his contract of employment, he was
aware that such policy was stipulated therein. In said contract, he also
agreed to resign from respondent if the management finds that his
relationship with an employee of a competitor company would be
detrimental to the interests of Glaxo.14
Mataidakun|84 |
Glaxo likewise insists that Tecsons reassignment to another sales area and
his exclusion from seminars regarding respondents new products did not
amount to constructive dismissal.
It claims that in view of Tecsons refusal to resign, he was relocated from the
Camarines Sur-Camarines Norte sales area to the Butuan City-Surigao City
and Agusan del Sur sales area. Glaxo asserts that in effecting the
reassignment, it also considered the welfare of Tecsons family. Since
Tecsons hometown was in Agusan del Sur and his wife traces her roots to
Butuan City, Glaxo assumed that his transfer from the Bicol region to the
Butuan City sales area would be favorable to him and his family as he would
be relocating to a familiar territory and minimizing his travel expenses.15
In addition, Glaxo avers that Tecsons exclusion from the seminar concerning
the new anti-asthma drug was due to the fact that said product was in direct
competition with a drug which was soon to be sold by Astra, and hence,
would pose a potential conflict of interest for him. Lastly, the delay in
Tecsons receipt of his sales paraphernalia was due to the mix-up created by
his refusal to transfer to the Butuan City sales area (his paraphernalia was
delivered to his new sales area instead of Naga City because the supplier
thought he already transferred to Butuan).16
The Court is tasked to resolve the following issues: (1) Whether the Court of
Appeals erred in ruling that Glaxos policy against its employees marrying
employees from competitor companies is valid, and in not holding that said
policy violates the equal protection clause of the Constitution; (2) Whether
Tecson was constructively dismissed.
The Court finds no merit in the petition.
The stipulation in Tecsons contract of employment with Glaxo being
questioned by petitioners provides:
10. You agree to disclose to management any existing or future

relationship you may have, either by consanguinity or affinity with coemployees or employees of competing drug companies. Should it pose
a possible conflict of interest in management discretion, you agree to
resign voluntarily from the Company as a matter of Company policy.
17
The same contract also stipulates that Tescon agrees to abide by the existing
company rules of Glaxo, and to study and become acquainted with such
policies.18 In this regard, the Employee Handbook of Glaxo expressly informs
its employees of its rules regarding conflict of interest:
1. Conflict of Interest
Employees should avoid any activity, investment relationship, or
interest that may run counter to the responsibilities which they owe
Glaxo Wellcome.
Specifically, this means that employees are expected:
a. To avoid having personal or family interest, financial or
otherwise, in any competitor supplier or other businesses which
Mataidakun|85 |
may consciously or unconsciously influence their actions or

decisions and thus deprive Glaxo Wellcome of legitimate profit.
b. To refrain from using their position in Glaxo Wellcome or
knowledge of Company plans to advance their outside personal
interests, that of their relatives, friends and other businesses.
c. To avoid outside employment or other interests for income
which would impair their effective job performance.
d. To consult with Management on such activities or relationships
that may lead to conflict of interest.
1.1. Employee Relationships
Employees with existing or future relationships either by consanguinity
or affinity with co-employees of competing drug companies are
expected to disclose such relationship to the Management. If
management perceives a conflict or potential conflict of interest, every
effort shall be made, together by management and the employee, to
arrive at a solution within six (6) months, either by transfer to another
department in a non-counter checking position, or by career
preparation toward outside employment after Glaxo Wellcome.
Employees must be prepared for possible resignation within six (6)
months, if no other solution is feasible.19
No reversible error can be ascribed to the Court of Appeals when it ruled that
Glaxos policy prohibiting an employee from having a relationship with an
employee of a competitor company is a valid exercise of management
prerogative.
Glaxo has a right to guard its trade secrets, manufacturing formulas,
marketing strategies and other confidential programs and information from
competitors, especially so that it and Astra are rival companies in the highly
competitive pharmaceutical industry.
The prohibition against personal or marital relationships with employees of
competitor companies upon Glaxos employees is reasonable under the
circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo
only aims to protect its interests against the possibility that a competitor
company will gain access to its secrets and procedures.
That Glaxo possesses the right to protect its economic interests cannot be
denied. No less than the Constitution recognizes the right of enterprises to
adopt and enforce such a policy to protect its right to reasonable returns on
investments and to expansion and growth.20 Indeed, while our laws endeavor
to give life to the constitutional policy on social justice and the protection of
labor, it does not mean that every labor dispute will be decided in favor of
the workers. The law also recognizes that management has rights which are
also entitled to respect and enforcement in the interest of fair play.21
As held in a Georgia, U.S.A case,22 it is a legitimate business practice to
guard business confidentiality and protect a competitive position by evenhandedly disqualifying from jobs male and female applicants or employees
who are married to a competitor. Consequently, the court ruled than an
employer that discharged an employee who was married to an employee of
Mataidakun|86 |
an active competitor did not violate Title VII of the Civil Rights Act of
1964.23The Court pointed out that the policy was applied to men and women
equally, and noted that the employers business was highly competitive and
that gaining inside information would constitute a competitive advantage.
The challenged company policy does not violate the equal protection clause
of the Constitution as petitioners erroneously suggest. It is a settled principle
that the commands of the equal protection clause are addressed only to the
state or those acting under color of its authority.24 Corollarily, it has been
held in a long array of U.S. Supreme Court decisions that the equal
protection clause erects no shield against merely private conduct, however,
discriminatory or wrongful.25 The only exception occurs when the state29 in
any of its manifestations or actions has been found to have become
entwined or involved in the wrongful private conduct.27 Obviously, however,
the exception is not present in this case. Significantly, the company actually
enforced the policy after repeated requests to the employee to comply with
the policy. Indeed, the application of the policy was made in an impartial and
even-handed manner, with due regard for the lot of the employee.
In any event, from the wordings of the contractual provision and the policy in
its employee handbook, it is clear that Glaxo does not impose an absolute
prohibition against relationships between its employees and those of
competitor companies. Its employees are free to cultivate relationships with
and marry persons of their own choosing. What the company merely seeks to
avoid is a conflict of interest between the employee and the company that
may arise out of such relationships. As succinctly explained by the appellate
court, thus:
The policy being questioned is not a policy against marriage. An
employee of the company remains free to marry anyone of his or her
choosing. The policy is not aimed at restricting a personal prerogative
that belongs only to the individual. However, an employees personal
decision does not detract the employer from exercising management
prerogatives to ensure maximum profit and business success. . .28
The Court of Appeals also correctly noted that the assailed company policy
which forms part of respondents Employee Code of Conduct and of its
contracts with its employees, such as that signed by Tescon, was made
known to him prior to his employment. Tecson, therefore, was aware of that
restriction when he signed his employment contract and when he entered
into a relationship with Bettsy. Since Tecson knowingly and voluntarily
entered into a contract of employment with Glaxo, the stipulations therein
have the force of law between them and, thus, should be complied with in
good faith."29 He is therefore estopped from questioning said policy.
The Court finds no merit in petitioners contention that Tescon was
constructively dismissed when he was transferred from the Camarines NorteCamarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur
sales area, and when he was excluded from attending the companys
seminar on new products which were directly competing with similar
products manufactured by Astra. Constructive dismissal is defined as a
quitting, an involuntary resignation resorted to when continued employment
becomes impossible, unreasonable, or unlikely; when there is a demotion in
rank or diminution in pay; or when a clear discrimination, insensibility or
disdain by an employer becomes unbearable to the employee. 30 None of
these conditions are present in the instant case. The record does not show
that Tescon was demoted or unduly discriminated upon by reason of such
Mataidakun|87 |
transfer. As found by the appellate court, Glaxo properly exercised its

management prerogative in reassigning Tecson to the Butuan City sales area:
. . . In this case, petitioners transfer to another place of assignment
was merely in keeping with the policy of the company in avoidance of
conflict of interest, and thus validNote that [Tecsons] wife holds a
sensitive supervisory position as Branch Coordinator in her employercompany which requires her to work in close coordination with District
Managers and Medical Representatives. Her duties include monitoring
sales of Astra products, conducting sales drives, establishing and
furthering relationship with customers, collection, monitoring and
managing Astras inventoryshe therefore takes an active
participation in the market war characterized as it is by stiff
competition among pharmaceutical companies. Moreover, and this is
significant, petitioners sales territory covers Camarines Sur and
Camarines Norte while his wife is supervising a branch of her employer
in Albay. The proximity of their areas of responsibility, all in the same
Bicol Region, renders the conflict of interest not only possible, but
actual, as learning by one spouse of the others market strategies in
the region would be inevitable. [Managements] appreciation of a
conflict of interest is therefore not merely illusory and wanting in
factual basis31
In Abbott Laboratories (Phils.), Inc. v. National Labor Relations
Commission,32 which involved a complaint filed by a medical representative
against his employer drug company for illegal dismissal for allegedly
terminating his employment when he refused to accept his reassignment to
a new area, the Court upheld the right of the drug company to transfer or
reassign its employee in accordance with its operational demands and
requirements. The ruling of the Court therein, quoted hereunder, also finds
application in the instant case:
By the very nature of his employment, a drug salesman or medical
representative is expected to travel. He should anticipate reassignment
according to the demands of their business. It would be a poor drug
corporation which cannot even assign its representatives or detail men
to new markets calling for opening or expansion or to areas where the
need for pushing its products is great. More so if such reassignments
are part of the employment contract.33
As noted earlier, the challenged policy has been implemented by Glaxo
impartially and disinterestedly for a long period of time. In the case at bar,
the record shows that Glaxo gave Tecson several chances to eliminate the
conflict of interest brought about by his relationship with Bettsy. When their
relationship was still in its initial stage, Tecsons supervisors at Glaxo
constantly reminded him about its effects on his employment with the
company and on the companys interests. After Tecson married Bettsy, Glaxo
gave him time to resolve the conflict by either resigning from the company
or asking his wife to resign from Astra. Glaxo even expressed its desire to
retain Tecson in its employ because of his satisfactory performance and
suggested that he ask Bettsy to resign from her company instead. Glaxo
likewise acceded to his repeated requests for more time to resolve the
conflict of interest. When the problem could not be resolved after several
years of waiting, Glaxo was constrained to reassign Tecson to a sales area
different from that handled by his wife for Astra. Notably, the Court did not
terminate Tecson from employment but only reassigned him to another area
Mataidakun|88 |
where his home province, Agusan del Sur, was included. In effecting Tecsons
transfer, Glaxo even considered the welfare of Tecsons family. Clearly, the
foregoing dispels any suspicion of unfairness and bad faith on the part of
Glaxo.34
WHEREFORE, the Petition is DENIED for lack of merit. Costs against
petitioners.
SO ORDERED.
David v Arroyo
GR No. 171396, May 3, 2006
Facts:
As the nation celebrated EDSAs 20th anniversary, President Arroyo issued PP
1017 declaring a state of national emergency and thereby commanded the
AFP and PNP to immediately carry out necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.
This declaration led to cancellation of all programs and activities related to
the EDSA People Power I celebration. Rally permits were revoked and
warrantless arrests and take-over of facilities, including the media, were
implemented. Assemblies and rallyists were dispersed. Along with the
dispersal, petitioner was arrested without warrant.
A week after PP 1017, PP1021 was issued lifting the state of emergency.
Issue:
Whether or not there is an actual controversy or case subject for judicial
review.
Whether or not there petition is with legal standing particularly on his
qualification to sue.
Ratio Decidendi:
The Solicitor Generals refute that the case has been moot and academic was
not upheld by the Court. According to the Supreme Court, courts will decide
cases otherwise found moot and academic if: there is grave Constitutional
violation, the situations exceptional character and paramount public interest
involved, issue raised requires formulation of controlling principles to guide
the bench, bar and public, and lastly it is capable of repetition yet evading
review.
Petitioner was found to be of legal standing on the grounds that his personal
rights were involved. The petitioner qualifies under the direct injury test. The
personal and substantial interest in the case such that he has sustained, or
will sustain direct injury qualifies him to impugn the validity of the statute. To
wit some of these direct injuries he sustained are the illegal arrest and
unlawful search he experienced. Given this fact, the court entertained his
petition as he has adequately shown that he entitled to judicial protection.
However, the court does not liberally declare statutes as invalid although
they may be abused and misabused and may afford an opportunity for abuse
in the manner of application. The validity of a statute or ordinance is to be
determined from its general purpose and its efficiency to accomplish the end
desired, not from its effects in a particular case.
The Court ruled that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate decrees, taking into
consideration that legislative power is vested only in congress.
The Court partly grants the petitions. PP 1017 is constitutional insofar as it
allows the President to call the AFP to prevent or suppress lawless violence.
Mataidakun|89 |
However, commanding the AFP to enforce laws not related to lawless

violence are declared unconstitutional. Such proclamation does not also
authorize the President to take over privately-owned public utilities or
business affected with public interest without prior legislation. General Order
No. 5 is constitutional as it is a standard on how the AFP and PNP would
implement PP1017, but portion where acts of terrorism has not been
defined and punishable by congress is held unconstitutional.
Furthermore, the following acts of the government were held
unconstitutional: warrantless arrest of the petitioner, dispersal and
warrantless arrests of rallyists in the absence of proof that said petitioners
were committing acts constituting lawless violence, invasion or rebellion, or
violating BP 800; imposition of media standards and any form of prior
restraint on the press, as well as warrantless search of the Tribune Offices
and whimsical seizure of its articles for publication and other materials.
Mataidakun|90 |

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Mr. Justice BRANDEIS (dissenting).

are circumstances of aggravation; but any forcible and compulsory extortion

Brief Fact Summary. The conversations of various individuals involved in

Issue. [W]hether the use of evidence of private telephone conversations

that in future it will pay for the fruits

316 U.S. 535

not prevent the legislture from recognizing 'degrees of evil' (Truax v.

offenses. In terms of fines and imprisonment the crimes of larceny and

Held. No. Supreme Court of Oklahoma ruling reversed.

The statutes whose constitutionality is involved in this appeal are 53

cannot stand in light of the familiar principle, so often applied by this

amendments is to give the 9th Amendment no effect.

(a) The deterrence of fornication, a 90-day misdemeanor under

pregnancy or conception. (And a) registered pharmacist actually engaged

Massachusetts, unlike the users of contraceptives in Connecticut, are not

different dimensions and proportions, requiring different remedies,'

Second. Section 21A was added to the Massachusetts General Laws by

Held. The dissimilar treatment of similarly situated married and unmarried

Discussion. The right of privacy is the right of the individual, married or

Paul POE et al., Appellants,

federal court's adjudication of its constitutionality in proceedings brought

birth, a couple whose wife had experienced a severely traumatic pregnancy

Synopsis of Rule of Law. There is no constitutional right to engage in

governing majority has traditionally viewed a particular practice as immoral

The complaints described their crime as "deviate sexual intercourse,

We conclude the case should be resolved by determining whether the

as Amici Curiae 15-21; Brief for Professors of History et al. as Amici

alleged he was a practicing homosexual who desired to engage in

As an alternative argument in this case, counsel for the petitioners and

(1997); Campbell v.Sundquist, 926 S. W. 2d 250 (Tenn. App.

Synopsis of Rule of Law. While homosexual conduct is not a fundamental

Facts. In Houston, Texas, Harris County Police officers were dispatched to a

Held. Yes, intimate sexual conduct, between consenting adults, is a liberty

Discussion. (Written by Justice Kennedy) The court does not focus on

relationship, stating that forming personal relationships is one of the liberties

G.R. No. 127685 July 23, 1998

grounds, viz: one, it is a usurpation of the power of Congress to legislate, and

Sec. 3. Secretariat. The National Computer Center (NCC) is

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

pursuance of his duties as administrative head shall be

limited government has always included the idea that

Sec. 17. No person shall be compelled to be a witness against

similar to a finger print. 51 Another biometric method is known as the

1972 required physicians to identify parties obtaining prescription drugs

The concept of limited government has always included the idea

April 19, 2006

AUTHORITY, and THE SECRETARY, DEPARTMENT OF BUDGET and

April 19, 2006

BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A.

WHEREAS, a unified identification system will facilitate private businesses,

b. In no case shall the collection or compilation of other data in

(ii) EO 420 is vague and without adequate safeguards or

c. To facilitate private businesses and promote the wider use of the

These benefits are savings in terms of procurement of equipment and

with those of the appellate courts, namely the Court of Appeals,

e. The identification card to be issued shall be protected by advanced

exchange such information with "officials of States, cities and other

Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the

September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A.

prohibiting its employees from marrying an employee of a competitor

10. You agree to disclose to management any existing or future

may consciously or unconsciously influence their actions or