Substantive Due Process

Question 1

Standards of Review

Answer 1

General - both substantive due process and equal protection have same three standards

Note - though all three availabe for both substantive and equal prot claims, intermediate scrutiny has only ever been used to decide cases based on equal protection

1. Strict Scrutiny - is the law necessary for a compelling interest?

• implicit is the requirement for the least restrictive means
• when strict scrutiny applies, the government bears the burden of proof; government must show that the itnerest is compelling and the law is necssary to that interest
• applies when there is a suspect classification or a fundamental right

2. Intermediate Scrutiny - is the law substantially related to an important interest?
   * applies to classifications based on legitamcy and gender
3. Rational Basis - is the law rationally related to a legitamate interest?

• the challenger bears the burden of proof
• applies to all other cases (residual test)

Question 2

Fundamental Rights - Due Process versus Equal Protection

Answer 2

Fundamental Rights - triggers strict scrutiny under both due process and equal protection

Due Process v. Equal Protection

• Due Process Problem - if a law denies a fundamental right to everyone
• Equal Protection Problem - if a law denies a fundamental right to only some

Question 3

Fundamental Rights - Travel

Answer 3

General - all have fundamental right of interstate travel and settlemnt

Limits - states can impose reasonable residency requirements for political participation and government benefits for 30-90 days and one year is too much for everything except in state tuition and jurisdiction to divorce

Long Term Residence - all residents have a right to be treated equally; a state cannot have a tax scheme that favors long term residents over recently arrived residents

Question 4

Fundamental Rights - Voting and Ballot Access

Answer 4

General - voting a fundamental right to all citizen age 18 and over

Poll Tax - there are unconstitutional becaues they burden the fundaemntal right to vote

Residency Req - short term is permitted (30 days); congress controls resdiency req for presidential elections, state control reqs for all other elections

Ballot Access - states can impose reqs for candidtates to be listed on ballot, such as longer residency and filing fees, nomination petitons, so long as a serious candidate can reasonbly comply

Question 5

Fundamental Rights - Privacy - Marriage, Contraception, Intimacy

Answer 5

a. Marriage - all sorts of reqs for marriage (e.g., age, relatives) but substnatial interference with marriage of an age qualified man and woman is unconstitutional
b. Contraception - fundamental right for everyone, whether married or not, to purchase contraceptives
c. Sexual Intimacy - not technically a fundamental right, but SCOTUS found government has no legitamate interst in regulating non-commercial sexual intimacy between consenting adults, including same sex couples

Question 6

Fundamental Rights - Privacy - Abortion

Answer 6

d. Abortion - woman has a right to terminate her pregnancy until viability of the fetus, after then, restrictions apply so long as there are expections to preserve the health and life of mother

• states can regulate abortion but cannot impose an undue burden on womans right to terminate
• Requirements:
  
  • informed consent requirements are allowed
  • 24 hour watiing periods are allowed
  • parental notification requirements (for minors) are allowed
  • parental consent requirements are not allowed except for requirement of acquiring consent of parent or judge but judge must approve if underage female understands nature of the act (mature minor doctrine)
• spousal requirements are not permissible
• government financing of abortions is not required

Question 7

Fundamental Rights - Privacy - Parental, Family, Obscene, Medical Treatment

Answer 7

e. Parental Rights - parents have fundamental right to raise their children as they see fit, including choice of religious or private schools but can lose their rights through abandonment, abuse, neglect
f. Family Relations - includes the right to live together with close relatives
g. Obscene Material - fundamental right to read obscene material in privacy of one’s own home, but no fundamental right to purchase, sell, import or distribute such material; does not apply to illegal materials
h. Refusal of Medical Treatment - not clear whether this a fundamental right, but there is a liberty intersts in refusing medical treatment; no right to commit suicide