Substantive due process 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 The right to marry The right to have children The right to travel from one state to another 1

Substantive due process How does the Court decide which asserted rights merit constitutional protection? 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 “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) 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 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 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 Also, the Court characterizes the right as one of liberty rather than privacy, which ties the right to the text of the 5 th and 14 th Amendments 4

Meyer v. Nebraska The Court reviewed a Nebraska law that prohibited the teaching of any “modern” language other than English before the eighth grade in any school 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 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) page 831 6

Pierce v. Society of Sisters 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 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.” page 832 7

Pierce v. Society of Sisters 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.” At stake are both the freedom of the individual and the kind of control that government can exert 8

Substantive due process 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 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. 9

Griswold What were the facts (page 832)? 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 The nature of the right at stake Note how the Court distinguished this case from prior decisions involving economic or social interests (page 832): “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) Parents and children in the educational context Speakers and listeners Members of private organizations 11

Griswold What was the important right of association at stake in this case? The right to marry.” “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? 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? 12

The meaning of Griswold How do later cases tell us that Griswold really was about sexual freedom? 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 Note how the Court struggled to explain how the Constitution supported the right to use contraception The penumbras of the Bill of Rights (Douglas) (pages ) 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 14

Family rights In our discussion of substantive due process so far, we have seen that the 5 th and 14 th Amendments protect rights revolving around the family 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 What’s going on in this case (page 899)? 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 Under the ordinance, a household could include the head of the household alone or with any of the following 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 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) 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” “[T]he institution of the family is deeply rooted in this Nation’s history and tradition” pages

Standard of review in Moore “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) 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? 19

Standard of review in Moore The Court didn’t talk about a narrowly tailored statute serving a compelling interest 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 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 Only Justice Thomas in his concurrence mentioned strict scrutiny Lyng and Gilliard, note 4, pages , also show that family rights are not always protected by strict scrutiny, despite Moore ’s recognition of a right to for “choices about family living arrangements” 21

Moore 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) That statute was challenged by six college students (Stony Brook) Was Belle Terre consistent with Moore ? 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)? The Court in Roberts emphasized that the Constitution favors groups that are small, highly selective in choosing members, and that operate in seclusion from others 22

Family rights and equal protection The Court sometimes uses the equal protection clause to protect family rights 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 non- custodial 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. 23

Zablocki Why not decide Zablocki as a suspect class, equal protection case? Non-custodial parents are not a suspect class If marriage is a fundamental right, consider the hypotheticals in note 5, page 906 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.” We’ll consider how much in two weeks 24

Family rights As the different outcomes in Moore and Belle Terre illustrated, biological ties matter In Reno v. Flores, Court found no right for a non- citizen 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 25

Tradition Should we rely on tradition? At what level of generality should we locate the tradition? 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) Consider a challenge to a ban on doctors prescribing a lethal dose of drugs to terminally ill adults 26