Constitutional Law I Outline

Russell K. Robinson – Constitutional Law – Berkeley – Spring 2014

DUE PROCESS

1. Constitutional Protection for Family Autonomy

a. Right to marry

i. “Fundamental to our existence” “Essential to our happiness” – Loving v. Virginia

a. Facts: (SS) Miscegenation statute struck down

b. Policy: Marriage intertwined with procreation, custody of children, identity, citizenship, dependency management

ii. Right to marry is fundamental to privacy – Zablocki v. Redhail

i. Facts: (SS) court struck down state law req’g court approval for someone with minor to be allowed to marry

ii. Policy:

a. Equal application – women can choose to have children out of wedlock, there is an equal right to men as well

b. Consistency of rights framework – K2 childbirth, child rearing, family relationship, being a mother

c. Right of privacy – Griswold

iii. Preventing right to divorce violates right to marry – Boddie v. Connecticut

i. Facts: court struck down state law requiring filing fees and court costs for divorce because law precluded right to marry someone else, k2 due process

ii. Policy: right to not be married is also fundamental

b. Right to custody of one’s children

i. Rights to conceive and raise one’s children are essential rights. – Stanley v. Illinois

i. Facts: (SS) court struck down law that made children of unmarried fathers wards of the state when mother dies. Father challenges law.

ii. Policy:

a. “Integrity of the family unit has found protection in the DP clause of the 14th Amdt”

b. The nature of the family unit doesn’t change the enduring familial bonds that underlie

ii. Right to raise one’s children requires commitment to participate in the rearing of the child – Lehr v. Robertson

i. Facts: Unmarried father did not support two-year-old and did not register interest in paternity in state father’s registry. Father challenged law. Court ruled that “biological link” does not merit protection, distinguishing from Stanley

ii. Policy: interests of the child

iii. Due process only affords those protections so rooted in the traditions and conscience of our people so as to be ranked fundamental. – Michael H. v. Gerald D.

i. Facts: [RB] Biological father does not have parental rights over child born into another married man’s marriage. Court established irrebutable presumption that married woman’s husband is the father of her child.

ii. Policy: Tradition is a key delimiter of how to define the scope of the right. Instead of being at the whim of the bench, the right is defined at the most specific level that tradition has upheld the right.

iii. Dissent (Brennan)

a. Tradition is equally fuzzy

b. We have often broke from tradition (e.g., Eisenstadt, Griswold)

c. Stagnation – rules won’t update for technological changes that make past rules pointless (e.g., paternity tests resolve the question of fatherhood accurately)

d. We live in a plurality where freedom not to conform is a respected principle

c. Right to keep family together

i. Right to define family as different from a nuclear family is fundamental – Moore v. City of East Cleveland, Ohio

a. Facts: [SS] Court strikes down law that limits occupancy of apartments to single family home, but defines single-family as a nuclear family.

b. Policy:

i. Tradition – there are many different extended forms of families living together that we protect.

ii. Choice of family to live with is important – we inculcate and pass down values through the family unit.

2. Constitutional Protection for Procreation

a. Fundamental right to procreate – criminal sterilization is not okay – Skinner v. Oklahoma

i. Facts: [SS] Law that sterilizes multiple felons. Court rules that equal protection clause violated.

ii. Policy:

a. K2 “very existence and survival”

b. Allows dominant group to control and eliminate other groups.

c. Inconsistent – embezzling is worse, but no sterilization

d. This is EP discrimination against felons – either sterilize all criminals or no criminals

b. Right to reproductive freedom

i. Right to marriage is fundamental – Griswold v. Connecticut

i) Facts: Court strikes down § forbidding use of contraceptives

ii) Douglas Majority: [SS – requires