89 Yale L.J. 624 (1979-1980)
The Freedom of Intimate Association

handle is hein.journals/ylr89 and id is 646 raw text is: The Freedom of Intimate Association
Kenneth L. Karst*
The last words of Justice Douglas's remarkable opinion for the
Court in Griswold v. Connecticut1 were these:
Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an asso-
ciation 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 in-
volved in our prior decisions.2
At first reading, these comments seemed not so much a peroration as
an afterthought, an effort to draw additional support for the Court's
decision from a series of precedents protecting the freedom of po-
litical association.3 Characteristically, Justice Douglas was content to
be suggestive, and to leave to others the task of doctrinal elaboration.
Before Griswold was decided, the notion of constitutional protec-
tion of the freedom of association was a First Amendment doctrine
and little more.4 Yet Griswold's focus was not someone's right to give
or receive information about contraception, but the right of a mar-
ried couple to use devices that would accomplish it. The Court's opin-
ion located that right within a generalized zone of privacy, created
in part by the First Amendment, but by the Third, Fourth, and Fifth
* Professor of Law, University of California, Los Angeles. I am grateful to a small
regiment of my UCLA colleagues, and to the members of Yale's Legal Theory Workshop,
for their valuable comments on a draft of this Article. In particular, I want to thank
my colleague Steven Shiffrin for long hours of discussion, for helpful analysis, and for
unfailing encouragement.
1. 381 U.S. 479 (1965).
2. Id. at 486.
3. The cases Justice Douglas cited were NAACP v. Button, 371 U.S. 415 (1963); NAACP
v. Alabama, 357 U.S. 449 (1958); and Schware v. Board of Bar Examiners, 353 U.S. 232
4. See, e.g., Emerson, Freedom of Association and Freedom of Expression, 74 YALE
L.J. 1, 20-21 (1964) (fleeting reference to personal associations); Fellman, Constitutional
Rights of Association, 1961 Sup. CT. REv. 74. But cf. C. Rica, FREEDOM oF ASSOCIATION
(1962) (including chapter on labor organizations); Wechsler, Toward Neutral Principles
of Constitutional Law, 73 HARv. L. REv. 1, 34 (1959) (explaining school desegregation as
problem of conflicting associational freedoms). See generally Raggi, An Independent Right
to Freedom of Association, 12 HARv. C.R.-C.L. L. REv. 1, 2-11 (1977).


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