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Under the old common law, judges insisted that a husband had a legal prerogative to beat his wife. This changed during the Reconstruction Era, when judges instead spoke of a "curtain" protecting marital privacy, that should not disturbed by the courts except in extreme cases. Reva Siegel notes, "Jurists reasoning in this discourse of 'affective privacy' progressively abandoned tropes of hierarchy and began to employ tropes of interiority to describe the marriage relationship, justifying the new regime of common law immunity rules in languages that invoked the feelings and spaces of domesticity."
In State v. Oliver, for example, the court ruled, "If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." Likewise, in State v. Rhodes, the court found:
Our conclusion is that family government is recognized by law as being as complete in itself as the State government is in itself, and yet subordinate to it; and that we will not interfere with or attempt to control it, in favor of either husband or wife, unless in cases where permanent or malicious injury is inflicted or threatened, or the condition of the party is intolerable. For, however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber.
Marital privacy was recognized in Justice Harlan's dissent in Poe v. Ullman, arguing against "the intrusion of the whole machinery of the criminal law into the very heart of marital privacy requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy". These views were accepted by the majority in Griswold v. Connecticut, in which Justice Douglas wrote, "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." Justice Goldberg's concurrence expressed similar sentiments.
According to Robert P. George and David L. Tubbs of the National Review, after Griswold, "the Supreme Court soon transformed the 'right to privacy' (the reference to marriage quickly disappeared) into a powerful tool for making public policy." In contrast to the earlier opinions, in Eisenstadt v. Baird, Roe v. Wade, Doe v. Bolton, and Planned Parenthood of Missouri v. Danforth, the privacy rights of the individual woman were emphasized. However, in Doe v. Commonwealth's Attorney and Cotner v. Henry, heterosexual married couples were held to have the right to engage in sodomy that homosexuals, or unmarried couples, respectively, were prohibited from having. (Homosexual sodomy was legalized, though, in 2003 by Lawrence v. Texas.)
- O'Reilly, James (1 April 1977). "Marital Privacy and Family Law". 66 (261). Studies: An Irish Quarterly Review: 8–24. Cite journal requires
- Siegel, Reva B. (June 1996). ""The rule of love": wife beating as prerogative and privacy". Yale Law Journal. 105 (8): 2117–2207.
- https://la.utexas.edu/users/jmciver/357L/61NC453.html This article incorporates text from this source, which is in the public domain.