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 outthe publicgaze, and leave the parties to forget and forgive." Likewise, in State v. Rhodes, the court found: 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' 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. In Roe v. Wade, the court ruled that the Loving v. Virginia case made clear that personal privacy rights have some extension to activities related to marriage.
