Poe v. Ullman

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Poe v. Ullman

Supreme Court of the United States

Argued March 1 – 2, 1961
Decided June 19, 1961


Full case name:	Poe et al. v. Ullman, State's Attorney

Citations:	367 U.S. 497
Prior history:	Appeal from the Supreme Court of Errors of Connecticut

Subsequent history:	147 Conn. 48, 156 A. 2d 508, appeal dismissed.

Holding

Connecticut law barring possession of birth control not ripe for constitutional challenge because of lack of enforcement.

Court membership

Chief Justice: Earl Warren
Associate Justices: Hugo Black, Felix Frankfurter, William O. Douglas, Tom C. Clark, John Marshall Harlan II, William J. Brennan, Charles Evans Whittaker, Potter Stewart

Case opinions

Majority by: Frankfurter
Joined by: Warren, Clark, Whitaker
Concurrence by: Brennan (in the judgement of the court only)
Dissent by: Douglas
Dissent by: Harlan
Dissent by: Stewart
Dissent by: Black

Poe v. Ullman, 367 U.S. 497 (1961)^[1], was a United States Supreme Court case that held that plaintiffs lacked standing to challenge a Connecticut law that banned the use of contraceptives, and banned doctors from advising their use, because the law had never been enforced. Therefore, any challenge to the law was deemed unripe, because there was no actual threat of injury to anyone who disobeyed the law. The same statute would later be challenged yet again (successfully) in Griswold v. Connecticut (1965).

Justice Harlan dissented and, reaching the merits, took a broad view of the "liberty" protected by the Fourteenth Amendment Due Process to include not merely state violations of one of the first eight amendments which had been held to be "incorporated" in the Fourteenth, but against any law which imposed on "liberty" unjustifiably. Harlan described the "liberty" protected by that clause as "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

It's interesting to note however, that Justice Harlan specifically noted that laws regulating homosexuality, forncation, and adultery would be permitted under this analysis:

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, [367 U.S. 497, 546] but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420 . Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

Justice Harlan's general view has had enormous influence on the modern Supreme Court; Justice David Souter endorsed the general reasoning behind Justice Harlan's test in his concurrence in 1997's Washington v. Glucksburg. Souter wrote that Harlan's dissent used substantive due process, and recent cases demonstrated the "legitimacy of the modern justification" for that apporach. However, the Court radically departed from the moderation Justice Harlan espoused in his due process analysis, with Lawrence v. Texas.