CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 36: Fundamental Rights Under Due
Process and Equal Protection: Family Autonomy
1. Central Theme: substantive limits on government provided by the
Equal Protection Clause in XIV Amendment and Due Process
Clause in V and XIV Amendments with respect to rights of family
autonomy
2. Some liberties are so important that they are deemed
“fundamental rights.” If so, the government can’t infringe on
them unless strict scrutiny is met, no matter whether the Court
uses the Equal Protection Clause or one of the Due Process
Clauses as the basis for protection of the right.
 See United States v. Carolene Products, footnote 4 [C p. 543]
(Class 31)
 Is there any difference between due process and equal protection
as the basis for protecting a fundamental right?
3. Some fundamental rights mentioned in the text of the
Constitution: freedom of speech, religious freedom, criminal
procedure protections under Amendment IV, assurance of speedy
trial in Amendment VI, prohibition of cruel and unusual
punishment in Amendment VIII
4. Some fundamental rights are not in the text: e.g. family
autonomy, the right we will look at today.
 What is the role of Amendment IX in protecting such non-textual
rights? Amendment XI states: The enumeration in the
Constittuion of certain rights, shall not be construed to disparage
others retained by the people.
 Should the Court protect unenumerated rights as fundamental
rights? Why or why not? If so, how should the Court decide
when a right is fundamental?
5. Basic Model in Claims Alleging Violations of Fundamental
Liberty Interests
i. Is the protected liberty interest one that qualifies as a
fundamental right?
ii. Does the challenged law infringe the right, i.e.
interfere with the fundamental liberty in a serious
enough way to impinge on or unduly burden that
liberty, thereby triggering strict scrutiny?
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 If the answer to i and ii are both yes, then the
court will apply strict scrutiny. Otherwise, it will
apply rational basis scrutiny.
6. Fundamental rights of family autonomy
i. The right to marry
 Major issue: when does a law impinge on or
unduly burden the right to marry? (See basic
model above at ii). Loving v. Virginia (1967) [C
p. 821] and Zablocki v. Rehail (1978) [C p. 822]
 Does the regulation “significantly interfere with
decisions to enter into the marital
relationship”? Zablocki (1978), supra.
 Since marriage has been traditionally governed
by the States, it may be harder to establish that
a law has impinged upon or unduly burdened the
right to marry than for other fundamental
liberties. Examples: minimum age
requirements for marriage, waiting periods for
divorce, laws against bigamy, laws against
incest
 Scope of constitutional right to marry: does this
include polygamy?
 United States v. Reynolds, 98 U.S. 145 (1878)
(Court rejected First Amendment Free Exercise
Clause challenge to federal anti-bigamy act)
 State of Utah v. Holm, 137 P.3d 726 (2006), cert.
denied, Holm v. Utah, 2007 U.S. LEXIS 2679
(U.S., Feb. 26, 2007) (holding conviction under
Utah anti-bigamy statute did not violate
substantive due process or equal protection)
 Bronson v. Swensen, 500 F.3d 1099(10th Cir.
2007) (holding that plaintiffs lacked standing to
challenge Utah’s prohibition on polygamy)
 Scope of constitutional right to marry: does this
include same-sex marriage? Court has not
answered this question.
 Even if the scope of the constitutional
fundamental right to marry does not include
same-sex marriage, will laws limiting marriage
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to one man and one woman survive rational
basis scrutiny? See Goodridge v. Dep’t of Public
Health, 440 Mass. 309 (Massachusetts Supreme
Judicial Court 2003) (finding the answer was
no); Hernandez v. Robles, 7 N.Y.3d 338 (New
York Court of Appeals 2006), (finding the
answer was yes); Citizens for Equal Protection v.
Bruning, 455 F.3d 859 (8th Cir. 2006) (finding the
answer was yes)
ii. The right to custody of one’s children: rights of
unmarried fathers
 Stanley v. Illinois (1972) [C p. 827]
 Lehr v. Robertson (1983) [C p. 829]
 Michael H. v. Gerald D. (1989) [C p. 829]
iii. The right to maintain the integrity of the family
 What is a family? Are blood ties necessary?
Compare Moore v. City of East Cleveland (1977)
[C p. 835] (challenging city ordinance that
prohibited a grandmother, her son, and two
grandsons who were cousins, not brothers, from
living together in the same home) and Village of
Belle Terre v. Boraas (1974) [C p. 838] (zoning
ordinance barring six unrelated college students
from living in the same home)
 In Moore and Belle Terre, did the Court follow
the basic strict scrutiny approach in model set out
above?
 Can anyone related by blood invoke the liberty
interest in maintaining the integrity of the
family? E.g. Michael H. v. Gerald D. (1989)
supra (involving adulterous biological father) ;
Troxel v. Granville (2000) [C p. 842] Consider
the role of tradition: what is the appropriate level
of generality in defining the relevant tradition for
substantive due process purposes?
 A related right: the fundamental freedom of
intimate association : Roberts v. United States
Jaycees (1984)
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iv. The right of parents to control the upbringing of their
children
A. Lochner Era Cases
 Meyer v. Nebraska (1923) [C p. 839]
 Pierce v. Society of Sisters (1925) [C p.
840]
 For a contemporary portrait of Justice
McReynolds by his law clerk, John Knox,
see The Forgotten Memoir of John Knox
(2002) (this work will be appreciated by
anyone who has ever suffered a difficult
boss!)
B. Deference to Parents
 Wisconsin v. Yoder (1972) [C p. 841)
 Troxel v. Granville (2000) [C p. 842]
C. Right not absolute
 Prince v. Massachusetts (1944) [C p. 841]
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