Fundamental
Rights
The presence of a fundamental right will invoke strict scrutiny through both the EPC & DPC
Assertion of a New Fundamental Right
State laws matter;
foreign laws do not
matter (different
culture)
" Traditional" Approach
Glucksberg - Fund. Rights are "deeply rooted in our traditions."
(1) Look to AMERICAN history and traditions on the practice;
(2) Define the practice at most specific level
----------------------------------------Michael H. v. Gerald D. - Scalia's Famous Footnote 6.
Look to history and the most specific tradition available
protecting this right. (ie "right to fatherhood of adulterous
offspring; as opposed to right to parentood")
OR
Remember: Thurgood Sliding
Scale also recognizes new
fundamental rights.
Obergefell Method - "Liberty includes specific rights... to
define and express their identity"
->"The identification of these rights has not been reduced to
any formula"
State laws irrelevant &
insufficient alone; foreign
laws can expose our own
culture
- Individual automony; - Personal Significance
- Safeguarding of children; - Social Order Keystone
Fundamental Rights as a Matter of Law
General Rights
Family Rights
Sexual Autonomy Rights
Medical Autonomy Rights
(Remember: These rights are fundamental, but they are not absolute. These may always be infringed if the government can meet strict scrutiny)
General Freedoms per Meyer v.
Nebraska
- Engage in common occupations
of life
-Establish a home and rear
children
-To worship God per own dictates
-Enjoy privileges recognized at
common law
Right to Marriage (Heterosexual)
Loving v. Virginia - People of different
races have fundamental right to marry
Right to Marriage (Homosexual)
Obergfell v. Hodges
Right to Legitimate Offspring
Right to Self-Defense
DC v. Heller
Bodily Integrity
Cruzan v. Director, Missouri Dept
Health
Common law fundamental right right to be free of unwanted
bodily intrusion
Freedom to Contract
Lochner Era
Meyer v. Nebraska (reiterated in
dicta)
Economic Substantive Due
Process is Dead.
------------------------------Since 1937, not a single
economic restriction has been
defeated by a substantive due
process challenge
Michael H. v. Gerald D.
Scalia - Adulterous, Illegitimate
fatherhood not recognized by our
traditions - not fndmtl.
Right to Parenthood (Broadly)
Michale H. Dissent, Brennan
Unwed fathers have a right to their
children, per
Right of Parents to Control
Upbringing
Meyer v. Nebraska
Right to marry, establish home, raise
children.
Pierce v. Society of Sisters
Right to Select a Family Surrogate
Ability for healthcare power of atty
O'Connor Concurring - Cruzan.
Right to Privacy
Broad right rooted in freedom from unreasonable searches and seizures, among
other things.
Privacy right between patients and their doctors.
Griswold v. Connecticut
Right to Procreation
Buck v. Bell - Invol. sterlization needs
strict scrutiny aka fund right
Skinner v. Oklahoma - Right given far
more value
Right to Contraceptives
Married Couples - Griswold v. Conn.
(right of married couple)
FUNDAMENTAL - Eisenstadt v. Baird
(right of individual)
"to be free from unwarranted
governmental intrusion into matters so
fundamentally afecting a person as the
decision whether to bear or beget a
child"
Right to Full Sexual Act Autonomy
Lawrence v. Texas - Government
cannot regulate consensual intimate
contacts
Dissent - No right to any kind of sexual
guarantees beyond procreation
Concurrence - Outlawing homosexual
acts fine so long as straight people
have same restrictions
Right to Refuse Treatment
Cruzan v. Director, Missouri Dept Health
(Competent People)
People have right to refuse "death
prolonging procedures" or the
administration of medication
Right to Determine Specific
Treatment
O'Connor - Cruzan Concurrence
"Requiring comptent adult to endure
procedures against her will burdens
Right to Die with Dignity
Brennan - Cruzan Dissent
Highly fundamental individual right
which cannot be outweighed by any
societal concerns of the state
-------------------------------Breyer - Glucksberg Concurrence
Right to Select a Family Surrogate
Ability for healthcare power of atty
O'Connor Concurring - Cruzan.
Bodily Integrity
Cruzan v. Director, Missouri Dept Health
Common law fundamental right - right to
be free of unwanted bodily intrusion
Equal Protection Under Law
14th Am.
KEY
Economic Rights in All States
(US Citizens Only)
Priv & Imm Clause
Fully Recognized
Rights
Imperfectly
Recognized Rights