I. Private Family Choices: Constitutional Protection for the Family and Its Members
A. Evolution of the Right to Privacy
Griswold v. Connecticut (1965): ∏s arrested for providing birth control information to married couples. Right to privacy comes from liberty concept in due process clause of 14th amendment. The zone of privacy is broad enough to encompass the right to use contraceptives.
Eisenstadt v. Baird (1972): ∆ convicted of exhibiting and dispensing contraceptive devices. Because the statute treated married and unmarried people different, it violated equal protection. Right to be free from government intrusion into decision to bear child.
Meyer v. Nebraska (1923): ∏ convicted of teaching non-English language. Court says the statute was arbitrary and there was no reasonable relation to the state’s interest. The Court comes to the conclusion that the legislature may not interfere with the ∏’s liberty under the guise of protecting the public interest through arbitrary legislation.
Pierce v. Society of Sisters (1925): Overturned act requiring children to attend public schools. Stands for right to educate and raise one’s children as one sees fit.
Roe v. Wade (1973): Court relied on due process clause and right of privacy in 14th amendment to strike down TX abortion statutes. Established trimester framework that’s no longer used. The right of privacy is qualified and has to be considered against state’s interests which include woman’s health and potential life. Court defined “viability” as potential to live outside womb. Court said the state could regulate abortion so that abortion would be allowed after viability or ban it except when necessary to preserve health and life of mother.
B. The Limits of Privacy
Twin star test for fundamental rights:
1. implicit in ordered liberty
2. whether asserted interest deeply rooted in nation’s history & tradition
Bowers v. Hardwick (1986): ∆ charged with sodomy in Georgia. Issue: whether the Constitution confers fundament right upon homosexuals to engage in sodomy and hence invalidate the laws of many states. Sodomy fails twin star test and is not within the right of privacy.
Stenberg v. Carhart (2000): Nebraska’s partial birth abortion ban was unconstitutional because it didn’t make provision for woman’s health and was unduly burdensome. Doctors will be unwilling to perform procedure therefore women will not be able to get the procedure therefore it’s an undue burden.
Lawrence v. Texas (2003): Criminalizing homosexual sodomy is unconstitutional under due process of the 14th amendment. O’Connor says in concurrence that moral disapproval is not a legitimate government interest.
C. When Privacy Rights Conflict
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): Challenge against PA’s abortion statute that required spousal notification, information regarding state assistance and fetal development, 24-hour waiting period, and parental consent. The Court upheld all restrictions except spousal notification which it found to be an undue burden. The state’s interests are pitted against the woman’s from the beginning of pregnancy (Casey) as opposed to after the first trimester (Roe).
Cruzan v. Director, Missouri Department of Health (1990): Vegetative ∏’s family wanted feeding tube removed. State law required clear and convincing evidence that patient wished tube removed. The Supreme Court affirmed decision not to remove tube because the Constitution doesn’t forbid state’s heightened evidentiary requirement to determine an incompetent’s wishes. Two state interests: (1) preserving human life and (2) guarding against abuses.
Washington v. Glucksberg (1997): Right-to-die case. Draws on Casey, specifically “the right to define one’s own existence.” The majority rejects contention that liberty includes right to assisted suicide. It fails twin star test. The Court applies rational basis test and concludes law was reasonabl
to strict scrutiny when the statute imposes direct and substantial interference.
void marriage – invalid from the beginning. Any party to marriage or third party with interest can challenge validity of marriage at any time and in any proceeding.
voidable marriage – valid until it’s subsequently declared invalid or illegal. The invalidity can only be asserted by one of the parties and only during the marriage (not after it’s been terminated on some other grounds, i.e., death or divorce).
lex loci – (leks loh-sI) when applied to marriage, the validity of the marriage is determined by laws of state in which marriage is executed. A marriage valid where performed is valid everywhere unless contrary to public policy. There are public policy reasons invalidating some marriages in other states.
Zablocki v. Redhail (1978): ∆’s marriage license application denied due to outstanding child support payments. The Court held that statute violated equal protection. The Court cited Loving and stated that right to marry is fundamental right found within right to privacy in 14th Amendment, but the state can impose regulations that don’t significantly interfere with decision to enter marital relationship. Court cited Jobst which listed legal obstacles, significant discouragement, and practical impossibilities as significant interference.
Turner v. Safley (1987): MO statute required permission for inmate to marry. Court reiterated central fundamental nature of marriage and recognized that prisoners maintain certain civil rights including right to marriage. Rational basis applies