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
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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)
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)
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
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
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.
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?
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 Griswoldrested on marital privacy, states could treat unmarried persons differently.
In both Eisenstadtand 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.
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
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 901-902, 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”
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 Terreconsistent 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
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.