I. Protection of Personal Liberties – Revival of rights that are not specifically mentioned in the Constitution A. Basis For Protection 1. The Fourth Amendment – protects persons, places, and possessions against indiscriminate searches and seizures 2. The Fifth Amendment – protects against self incrimination 3. What about Privacy? – developed from the penumbra of the articles 4. Meyer v. Nebraska – the court said that the liberty protected by due process denoted 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. * Pierce v. Society of Sisters – upheld a trial court injunction against the enforcement of an Oregon Statute requiring parents to send their children to a public school. Parents have an interests in deciding their children’s education. 5. Skinner v. Oklahoma – the court held invalid under equal protection a statute providing for compulsory sterilization of criminals convicted two or more times of moral turpitude – The way in which the state defines crimes are discriminatory because it is defined as “moral turpitude” a. “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race” 6. Griswald v. Connecticut – the Court invalidated a state law that made it a crime for any person to use contraceptives, including married persons. (moral purity campaign) This infringed on the constitutionally protected right to marital privacy ~ the constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state. Struck down on Privacy Grounds. The court does not want to revive the issue of Due Process. a. Williamson v. Lee Optical Test (refer to Carter’s Section) – the use of contraceptives is immoral because the purpose of sex is to procreate
Rights not specifically enumerated are viewed as fundamental rights entitled to constitutional protection
b. Penumbra – “The 1st, 3rd, 4th, and 5th amendments have penumbras formed by emancipations from those guarantees that help give them life and substance” The 9th amendment provides other rights and this is where they get these rights from. i. courts previous to these were reluctant to use the 9th amendment because they did not want to make up rights c. Victorian Compromise – moral legislation was not usually enforced - - - society wanted to have this public face of virtue, but realized that these things would take place and it was ridiculous for society to actually enforce this. This is what happened in Griswald, the statute was never enforced. d. How far does this right of privacy go? What about unmarried people? i. Bowers (next semester) – rejects the notion that the right to privacy extend to Homosexuals ii. many states make various sexual acts illegal ~ MD – adultery and oral sex are illegal iii. later extended to unmarried couples as well B. Family and Marital Relationships 1. Moore v. City of East Cleveland, Ohio – “The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment” ~ The court here stuck down a housing ordinance making it illegal for a family member, not son . . . to live with the grandmother. (related persons may live together) a. the court recognizes the revival of Lochner type Due Process claims, they explicitly say they do this because it deals with issues involving a family 2. Zablocki v. Redhail - The Court held invalid a law forbidding marriage by person not complying with the court order to support minor children. Laws that interfere directly and substantially with the fundamental right to marry, violates the Equal Protection Clause unless they can withstand rigorous scrutiny. a. arbitrarily denied a fundamental liberty b. the right to marry is one of the fundamental rights of privacy and is the foundation to family in our society does this mean that states cannot do things that make it more difficult to get marry? c. Test: limits are allowed as long as; i. they do not significantly interfere with the fundamental right; ii. the state has a legitimate interest; and
iii. it must be closely tailored to the interest (here, there is no out for poor people – therefore the statute is not narrowly tailored to serve the state interest – too broad)
[some say that the equal protection clause does not add anything to the constitution] 3. Michael H. v. Gerald D. – A California Law made a child born to a married woman living with her husband to be a child of the marriage. Here, Michael was the father and tried to claim parental rights, but under the law he was not the legal father. The statute was upheld and the Court emphasized that Michael was an adulterous natural father which has not been traditionally protected by our society . . . a. the plurality frames the argument in terms of whether an outsider can challenged the validity on the parental rights of a married couple. “this is not the stuff of which fundamental rights qualifying as liberty interests are made” i. concurring opinion does not agree – they basically generalize whether the law has offered rights to biological parents (rather than the specific rights of adulterous men). They do not think that the court should focus on tradition and history because time change b. in the Dissent, the Justices assert that he has a liberty interest entitled to protection under the Due Process Clause of the Fourteenth Amendment – natural father should have protected rights and no that “deeply rooted historical” ideas are had to determine 4. Troxel v. Granville (Renita’s section) – grandparents wanted visitation rights