Determining Noneconomic Substantive Due Process Rights.

More so than other areas of law, noneconomic substan-tive due process seems to have started with few fixed precepts. Were the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties? What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of “privacy” relate to protecting physical spaces such as one’s home, or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the “privacy” of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? Although many of these issues have been resolved, others remain.

One of the earliest formulations of noneconomic substantive due process was the right to privacy. This right was first proposed by Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article538 as a unifying theme to various common law protections of the “right to be left alone,” including the developing laws of nuisance, libel, search and seizure, and copyright. According to the authors, “the right to life has come to mean the right to enjoy life,—the right to be let alone . . . . This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.”

The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment.539 Then, in the 1920s, at the heyday of economic substantive due process, the Court ruled in two cases that, although nominally involving the protection of property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska,540 the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Two years later, in Pierce v. Society of Sisters,541 the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties.542 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of “liberty.”

“Without doubt,” Justice McReynolds said in Meyer, liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”543 The right of the parents to have their children instructed in a foreign language was “within the liberty of the [Fourteenth] Amendment.”544 Meyer was then relied on in Pierce to assert that the statute there “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . 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.”545

Although the Supreme Court continued to define noneconomic liberty broadly in dicta,546 this new concept was to have little impact for decades.547 Finally, in 1967, in Loving v. Virginia,548 the Court held that a statute prohibiting interracial marriage denied substantive due process. Marriage was termed “one of the ‘basic civil rights of man’ ” and a “fundamental freedom.” “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and the classification of marriage rights on a racial basis was “unsupportable.” Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies.549

Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court would use to review infringements on “fundamental freedoms” were not always clear. In Poe v. Ullman,550 for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have applied to test economic legislation.551 Applying a lengthy analysis, Justice Harlan concluded that the statute in question infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court in Griswold v. Connecticut,552 a majority of the Justices rejected reliance on substantive due process553 and instead decided it on another basis—that the statute was an invasion of privacy, which was a non-textual “penumbral” ri554 ght protected by a matrix of constitutional provisions. Not only was this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom.

The apparent lack of deference to state interests in Griswold was borne out in the early abortion cases, discussed in detail below, which required the showing of a “compelling state interest” to interfere with a woman’s right to terminate a pregnancy.555 Yet, in other contexts, the Court appears to have continued to use a “reasonableness” standard.556 More recently, the Court has complicated the issue further (again in the abortion context) by the addition of yet another standard, “undue burden.”557

A further problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike.558 However, in Bowers v. Hardwick,559 the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.560 Then, in Lawrence v. Texas,561 the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.

More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and “restrain” a court’s determination of the scope of substantive due process rights, held that the concept of “liberty” protected under the Due Process Clause should first be understood to protect only those rights that are “deeply rooted in this Nation’s history and tradition.”562 Moreover, the Court in Glucksberg required a “careful description” of fundamental rights that would be grounded in specific historical practices and traditions that serve as “crucial guideposts for responsible decisionmaking.”563 However, the Court, in Obergefell v. Hodges largely departed from Glucksberg’s formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.564 Instead, the Obergefell Court recognized that fundamental rights do not “come from ancient sources alone” and instead must be viewed in light of evolving social norms and in a “comprehensive” manner.565 For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a “careful description” of the right in question—was “inconsistent” with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as “received practices could serve as their own continued justification and new groups could not invoke rights once denied.”566

Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.567 While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection, arguing that courts should limit consideration to “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”568 Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should “ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’ ”569

Footnotes

538
Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). [Back to text]
539
See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Brandeis wrote: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” 277 U.S. at 478. [Back to text]
540
262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923). [Back to text]
541
268 U.S. 510 (1925). [Back to text]
542
Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 531, 533, 534 (1928). The Court has subsequently made clear that these cases dealt with “a complete prohibition of the right to engage in a calling,” holding that “a brief interruption” did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292 (1999) (search warrant served on attorney prevented attorney from assisting client appearing before a grand jury). [Back to text]
543
262 U.S. at 399. [Back to text]
544
262 U.S. at 400. [Back to text]
545
268 U.S. at 534–35. [Back to text]
546
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and procreation are among “the basic civil rights of man”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of children by the family are within “the private realm of family life which the state cannot enter”). [Back to text]
547
E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922) (allowing compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (allowing sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (allowing institutionalization of habitual sexual offenders as psychopathic personalities). [Back to text]
548
388 U.S. 1, 12 (1967). [Back to text]
549
Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment. Note also that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506–07 (1969), Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on First Amendment grounds. [Back to text]
550
367 U.S. 497, 522, 539–45 (1961). Justice Douglas, also dissenting, relied on a due process analysis, which began with the texts of the first eight Amendments as the basis of fundamental due process and continued into the “emanations” from this as also protected. Id. at 509. [Back to text]
551
According to Justice Harlan, due process is limited neither to procedural guarantees nor to the rights enumerated in the first eight Amendments of the Bill of Rights, but is rather “a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions.” The liberty protected by the clause “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” 367 U.S. at 542, 543. [Back to text]
552
381 U.S. 479 (1965). [Back to text]
553
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 381 U.S. at 482 (opinion of Court by Justice Douglas). [Back to text]
554
The analysis, while reminiscent of the “right to privacy” first suggested by Warren and Brandeis, still approached the matter in reliance on substantive due process cases. It should be noted that the separate concurrences of Justices Harlan and White were specifically based on substantive due process, 381 U.S. at 499, 502, which indicates that the majority’s position was intended to be something different. Justice Goldberg, on the other hand, in concurrence, would have based the decision on the Ninth Amendment. 381 U.S. at 486–97. See analysis under the Ninth Amendment, “Rights Retained By the People,” supra. [Back to text]
555
See Roe v. Wade, 410 U.S. 113 (1973). [Back to text]
556
When the Court began to extend “privacy” rights to unmarried person through the equal protection clause, it seemed to rely upon a view of rationality and reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman. Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. Illinois, 405 U.S. 645 (1972). [Back to text]
557
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). [Back to text]
558
See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U.S. at 453. [Back to text]
559
478 U.S. 186 (1986). [Back to text]
560
The Court upheld the statute only as applied to the plaintiffs, who were homosexuals, 478 U.S. at 188 (1986), and thus rejected an argument that there is a “fundamental right of homosexuals to engage in acts of consensual sodomy.” Id. at 192–93. In a dissent, Justice Blackmun indicated that he would have evaluated the statute as applied to both homosexual and heterosexual conduct, and thus would have resolved the broader issue not addressed by the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. Id. at 199–203 (Justice Blackmun dissenting, joined by Justices Brennan, Marshall and Stevens). [Back to text]
561
539 U.S. 558 (2003) (overruling Bowers). [Back to text]
562
See 521 U.S. 702, 720–21 (1997). [Back to text]
563
See id. at 721 (internal citations and quotations omitted). [Back to text]
564
See 576 U.S. ___, No. 14–556, slip op. at 18 (2015). [Back to text]
565
See id. at 18–19. [Back to text]
566
See id. at 18. [Back to text]
567
491 U.S. 110 (1989). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did not unconstitutionally impinge on that interest. [Back to text]
568
491 U.S. at 128 n.6. [Back to text]
569
491 U.S. at 142. [Back to text]