Substantive Due Process Flashcards
What are the established rights under SDP?
Fundamental right to family related choices (Meyer & Pierce)
Fundamental right to marriage (Griswold)
Fundamental right to have an intimate relationship (Lawrence)
What are the more specific rights that fall under the right to family related choices?
- Right of parents to control and educate their children (Meyer)
- Right of parents to choose schools where children will receive certain training (Pierce)
- Right of children to influence parents choice of school (Pierce)
What is the test to determine if something is a fundamental right?
1) Is it implicit in our concept of ordered liberty and deeply rooted in history and tradition? (Glucksberg)
2) Is this a right that for some reason related to personhood should not be defined historically by the persons who have exercised it? (Obergefell)
What is the test to determine if the limitation of a SDP is constitutional?
1) No legitimate interest in limiting the right where the end is to limit it
2) SS for classification/discrimination of the right
3) Note: Some cases do not follow this (e.g., sexual orientation)
Why is Lochner so strong as an anti-precedent?
Because Justices do not want to be accused of subverting the political process by reading broad rights into the Due Process Clause (Right to Contract can only be limited by the state in certain circumstances)
West Coast Hotel
Liberty is subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process
There is no right to work
(Min. wage paid to female and minor employees)
Griswold v. Connecticut
Married people have a fundamental right to privacy; 9th A penumbras give the doctor the right to advise married couples on contraceptives
Eisenstadt
Rights held by married couples are individual, and under EPC those rights to contraceptives should extend to unmarried people
Roe v. Wade
Before viability, state has inadequate interest in preserving fetal life to prohibit abortions
Before the end of the 1st trimester, the state can’t regulate for health and safety (abortion is as safe to the mother as carrying to term)
Planned Parenthood v. Casey
Viability line stays with regards to state’s interest in prohibiting abortion but eliminates the trimester line
Before viability, the state can’t place an undue burden on abortion for health and safety
(must have exception for life and health of the mother)
Dobbs
Test to determine if a right is fundamental:
- Rooted in our history and tradition of ordered liberty
- If it is not, then Rational Basis
Abortion is not a fundamental SDP right
Romer v. Evans
What is important is that sexual orientation is not a suspect class, but animus will result in RB +
Lawrence v. Texas
Rejects the status/conduct distinction
The right to have an intimate relationship is protected, and if the conduct is necessary to or part of the relationship the conduct is also protected
Windsor v. United States
Animus is not a legitimate governmental interest
Obergefell v. Hodges
If there are classifications and exclusions from marriage, gets strict scrutiny
Marriage is inherent to personhood, so Glucksberg will not be the outer limit
Start from the relationship (marriage) and work outward
- Effect of the discrimination here is complete deprivation towards the right
- Sexual orientation is immutable
