Substantive due process
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In the next few classes, we will consider
which fundamental rights/liberties the
Supreme Court has recognized under the
due process clause
The text of the due process clause provides
little guidance, but we know that there
must be some unenumerated rights that
the Constitution protects
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The right to marry
The right to have children
The right to travel from one state to another
1
Substantive due process
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How does the Court decide which asserted
rights merit constitutional protection?
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The justices do not want the matter to be
decided simply by the preferences of the Court’s
majority (or at least do not want to leave that
impression)
Hence, they look for some “objective” theory
that will distinguish protected rights/liberties
from unprotected interests.
2
J. Goldberg on an objective theory
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“In determining which rights are fundamental,
judges are not left at large to decide cases in light
of their personal and private notions.
“Rather, they must look to the ‘traditions and
[collective] conscience of our people’ to determine
whether a principle is ‘so rooted [there] . . . as to be
ranked as fundamental.’
“The inquiry is whether a right involved ‘is of such
character that it cannot be denied without violating
those “fundamental principles of liberty and justice
which lie at the base of all our civil and political
institutions.”. . .’” (page 834)
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But of course, there is no “gadget which the Court
can use to determine what traditions are rooted in
the ‘[collective] conscience of our people.’” (page 839)
3
The right to privacy
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While the Supreme Court did not firmly
establish a right to privacy until the
1970’s, it began its development of the
right in the 1920’s
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The key cases were Meyer v. Nebraska and
Pierce v. Society of Sisters
In recent years, the Court has curbed the
right to privacy, as illustrated by the
changes in abortion law between Roe and
Planned Parenthood/Carhart
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Also, the Court characterizes the right as one of
liberty rather than privacy, which ties the right
to the text of the 5th and 14th Amendments
4
Meyer v. Nebraska
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The Court reviewed a Nebraska law that prohibited
the teaching of any “modern” language other than
English before the eighth grade in any school
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You could teach Latin and Greek at any time, and you
could teach French, German and Spanish in high schools,
but you could not teach French, German and Spanish in
the primary years.
Mr. Meyer taught German in a parochial school and was
convicted of unlawfully teaching German to a ten year
old (Misdemeanor--$25 to $100 fine, up to 30 days in jail)
The statute apparently was passed to ensure that
the children of immigrants were becoming
Americanized as quickly as possible and were not
dividing their allegiances between the U.S. and
their families’ native countries
5
Meyer v. Nebraska
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In striking down the law, the Court
identified three important individual
interests at stake
the freedom of modern language teachers
“to engage in any of the common
occupations of life”
 the freedom of children “to acquire useful
knowledge”
 the freedom of parents “to establish a
home and bring up children” (including
control of education)
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page 831
6
Pierce v. Society of Sisters
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The state of Oregon required all children
age 8 to 16 to be educated in public schools
with an exception for children who had
completed the eighth grade
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The law was passed by a voter initiative and was
challenged by a parochial school and a military
academy before it went into effect
In striking down the law, the Court based
its decision solely on the right of parents
“to direct the upbringing and education of
children under their control.”
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page 832
7
Pierce v. Society of Sisters
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The state may not “standardize its
children by forcing them to accept
instruction from public teachers
only. The child is not the mere
creature of the state; those who
nurture him and direct his destiny
have the right, coupled with the high
duty, to recognize and prepare him
for additional obligations.”
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At stake are both the freedom of the
individual and the kind of control that
government can exert
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Substantive due process
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After Meyer and Pierce, the due process
clause was not used to recognize
unenumerated, non-economic, fundamental
rights for forty years
The Court did recognize some non-economic
fundamental rights under the 14th
Amendment between Pierce and Griswold
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As we will see next week, the due process clause
was used to incorporate most of the rights in the
Bill of Rights against the states.
Also, recall that the Court used the equal
protection clause in 1942 to protect reproductive
rights in Skinner v. Oklahoma.
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Griswold
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What were the facts (page 832)?
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At issue was a Connecticut statute that made it
a misdemeanor to use drugs or devices for the
purpose of preventing contraception and that
also made it a misdemeanor to assist another
person in the use of drugs or devices for the
purpose of preventing contraception.
Our two appellants were Griswold, executive
director of Planned Parenthood of Connecticut,
and Buxton, the medical director of the New
Haven Planned Parenthood clinic. They were
convicted for unlawfully assisting married
couples to use contraception and were fined
$100 each.
10
Griswold
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The nature of the right at stake
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Note how the Court distinguished this case
from prior decisions involving economic or
social interests (page 832):
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“This law . . . operates directly on an intimate relation
of husband and wife and their physician’s role in one
aspect of that relation.”
The Court then cited other cases in which it
protected the privacy of people who were
involved in important relationships (rights of
association)
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Parents and children in the educational context
Speakers and listeners
Members of private organizations
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Griswold
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What was the important right of association at
stake in this case?
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The right to marry
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“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.”
Was this really about a privacy right? Would it
have been okay to prohibit the sale of
contraceptives rather than their use? And was it
really about marriage?
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Isn’t this case really about the right to control
reproduction? To be able to have sexual relations without
having children? Is that right mentioned at all in the
case?
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The meaning of Griswold
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How do later cases tell us that Griswold really
was about sexual freedom?
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In Eisenstadt, page 855, the Court extended Griswold to
single persons. Moreover, it did so under an equal
protection theory. State could not treat married and
unmarried persons differently. But if Griswold rested on
marital privacy, states could treat unmarried persons
differently.
In both Eisenstadt and Carey, page 856, the Court
struck down limits on distribution rather than simply
use of contraceptives. No need to invade the privacy of
the marital bedroom to enforce either of the laws being
challenged.
Not surprisingly, we will see that Griswold is now
characterized as having established a general right of
access to contraception.
13
Theories in Griswold
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Note how the Court struggled to explain
how the Constitution supported the right
to use contraception
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The penumbras of the Bill of Rights (Douglas)
(pages 832-833)
14th A. “liberty” with analogy to the 9th A.
(Goldberg) (so rooted in tradition and the
collective conscience as to be ranked as
fundamental) (page 834)
14th A. due process (Harlan) (implicit in the
concept of ordered liberty) (page 835)
Roe and later cases make clear that the
right rests in the due process clause’s
protection of liberty
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Family rights
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In our discussion of substantive due
process so far, we have seen that the 5th
and 14th Amendments protect rights
revolving around the family
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Marriage (Loving)
Contraception (Griswold)
Child rearing and education (Meyer and Pierce)
We will now look at some additional cases
dealing with family rights
15
Ordinance in Moore
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What’s going on in this case (page 899)?
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This case involved a zoning ordinance that
limited occupancy of any dwelling unit to
members of the same family, where the
ordinance defined family to exclude many
extended families of related persons.
Ms. Inez Moore lived with her unmarried son,
Dale, Dale’s son, Dale, Jr., and another
grandson, John, Jr., whose father, John, lived
elsewhere
16
Moore
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Under the ordinance, a household could
include the head of the household alone or
with any of the following
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Spouse
Parents of the head or the head’s spouse
Unmarried children of either the head or the
head’s spouse (but not children of the
unmarried children)
Not more than one dependent married or
unmarried child of the head or head’s spouse
and the child’s spouse and children.
Who was excluded by this definition?
17
Right at stake in Moore
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Freedom of personal choice in matters of
marriage and family life is one of the
liberties protected by the due process
clause of the 14th Amendment (page 899)
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Choices about family living arrangements are
part of this liberty
Due process rests on “respect for the
teachings of history [and] solid recognition
of the basic values that underlie our
society”
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“[T]he institution of the family is deeply rooted
in this Nation’s history and tradition”
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pages 899-900
18
Standard of review in Moore
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“This Court must examine carefully the
importance of the governmental interests
advanced and the extent to which they are
served by the challenged regulation” (page
899)
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The city invoked concern about “overcrowding,
minimizing traffic and parking congestion, and
avoiding an undue financial burden on [the]
school system.”
Why couldn’t the statute be justified on the
basis of these concerns?
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Standard of review in Moore
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The Court didn’t talk about a narrowly
tailored statute serving a compelling
interest
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Was it because the Court was still sorting out
the standard of review?
Or maybe it had to do with the nature of the
right of parents “concerning the care,
custody, and control of their children” (page
907)
20
Standard of review for family rights
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Troxel v. Granville (note 7, page 907), the trial court
granted visitation rights to grandparents under a state
statute that allowed any person to petition for visitation
rights at any time and authorized courts to grant
visitation rights whenever doing so would serve the
child’s best interests.
The Supreme Court found the trial court’s order
unconstitutional on the grounds that (1) the statute was
too sweeping when it allowed any person to petition for
visitation, and (2) the trial court did not give any special
weight to the mother’s judgment about the child’s best
interests
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Only Justice Thomas in his concurrence mentioned strict scrutiny
Lyng and Gilliard, note 4, pages 901-902, also show that
family rights are not always protected by strict scrutiny,
despite Moore’s recognition of a right to for “choices
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about family living arrangements”
Moore
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The Court acknowledged an earlier decision, Village
of Belle Terre v. Boraas, where family was defined
as either one or more persons related by blood,
marriage or adoption, or two persons not related by
blood, marriage or adoption (page 899)
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That statute was challenged by six college students
(Stony Brook)
Was Belle Terre consistent with Moore?
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It sounds like the Court will prohibit the government
from imposing too constraining a definition of family,
but the Court still relies on some very traditional notion
of family
Was Belle Terre consistent with Roberts (page 910)?
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The Court in Roberts emphasized that the Constitution
favors groups that are small, highly selective in
choosing members, and that operate in seclusion from
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others
Family rights and equal protection
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The Court sometimes uses the equal protection
clause to protect family rights
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In Zablocki v. Redhail, page 902, the Court invoked the
fundamental rights wing of equal protection rather than
due process
In Zablocki, persons who had support obligations to noncustodial children could not marry without a judicial
determination that they were meeting their support
obligations and that their children were not then or likely
to become public charges. For some people, it would have
been impossible to get married.
The Court could have found an infringement on the due
process right to marry. In fact, the opinion reads more
like a DP opinion, and Stewart argued in his concurring
opinion that the case should be treated as a DP case.
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Zablocki
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Why not decide Zablocki as a suspect class,
equal protection case?
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If marriage is a fundamental right, consider
the hypotheticals in note 5, page 906
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Non-custodial parents are not a suspect class
Marriage between two first cousins
Marriage between two men
Marriage among two men and one woman
Just as Belle Terre and Moore tell us that the
state has leeway to define “family,” so does
the state have leeway to define “marriage.”
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We’ll consider how much in two weeks
24
Family rights
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As the different outcomes in Moore and
Belle Terre illustrated, biological ties matter
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In Reno v. Flores, Court found no right for a noncitizen child to be released to the custody of an
unrelated adult
In Stanley v. Illinois , Court held that states
could not automatically deprive unwed fathers of
their parental rights
But see Michael H. v. Gerald D. (page 906),
where the Court gave priority to the rights
of the husband of the mother over the rights
of the biological father of the child
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Tradition
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Should we rely on tradition?
At what level of generality should we
locate the tradition?
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Can one simply invoke a right to make
important personal decisions?
How do we identify the relevant
tradition? (e.g., right of adulterous
fathers vs. right of biological fathers)
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Consider a challenge to a ban on doctors
prescribing a lethal dose of drugs to terminally
ill adults
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