Substantive due process/ Noneconomic fundamental rights

Question 1

Meyer v. Nebraska

Answer 1

can’t prohibit foreign language teaching: interferes w/ fundamental right to pursue a calling

Question 2

Pierce v. Society of Sisters

Answer 2

can’t require kids to go to public school: interferes w/ parents’ rights to direct upbringing of their kids

Question 3

Why are these modern cases substantive rights and not Lochner?

Answer 3

b/c right to K is not deserving of special judicial solicitude

Question 4

Griswold v. Connecticut

Answer 4

right to privacy, personal autonomy, contraceptives, directing marital relationships

Question 5

Where are unenumerated, substantive due process rights found?

Answer 5

in the penumbras of the const. 
1st right of association
3rd no interference on property
4th against search & seisure
5th against self incrimination
9th other rights

Question 6

What does the 9th Amend do?

Answer 6

Rights retained by people. Nontextual rights

Question 7

Eisenstadt v. Baird

Answer 7

discrimination between married and unmarried people under Equal Protection Clause. Right to privacy in bedroom=personal autonomy

Question 8

Roe v. Wade

Answer 8

case hold fundamental right to abortion as a matter of personal autonomy

Question 9

Why did Roe have standing?

Answer 9

1 of 2 exceptions to mootness: capable of repetition yet evading review

Question 10

Why is the right to abortion fundamental?

Answer 10

ct left somewhat ambiguous. It is important and grounded in history, tradition. Privacy, autonomy, etc.

Question 11

What are the state’s interest in abortion cases?

Answer 11

State has compelling interest in the life and health of women and of fetuses.

Question 12

State interest 1st trimester

Answer 12

state cannot regulate. Decision left to woman and physician

Question 13

State interest 2nd trimester

Answer 13

regulation in interest of protecting women’s health

Question 14

State interest 3rd trimester

Answer 14

state may proscribe abortion w/ health/ life exception

Question 15

fundamental right analysis

Answer 15

1. is there a right ?
   a. deeply rooted in ordered scheme of liberty or history and tradition
2. is the law const. via appropriate means-ends analysis?

Question 16

Webster v. Reproductive Health Services

Answer 16

upheld state law prohibiting govt funding for abortion

Question 17

Planned Parenthood v. Casey

Answer 17

changed Roe’s trimester framework

Question 18

stare decisis

Answer 18

rule can only be overturned when certain factors are present

Question 19

factors for overturning rule

Answer 19

1. rule unworkable/ judicially unmanageable
2. no reliance
3. evolution of legal principle
4. significant change in facts

Question 20

Casey doctrinal framework

Answer 20

pre-viability: does it place an undue burden on the women’s right to terminate?

post-viability: same as Roe

Question 21

What is the definition of undue burden for purposes of abortion?

Answer 21

regulation that has the purpose or effect of placing a substantial obstacle in the way of a woman’s choice to terminate

Question 22

government’s legitimate interests in abortion cases

Answer 22

life and health of women

life of fetuses

Question 23

What provisions are ok for states to impose in regards to abortion?

Answer 23

provision information
provider reporting
parental consent w/ judicial bypass
refusal of govt funds

Question 24

What provisions are NOT ok for states to impose in regards to abortion?

Answer 24

spousal notification–> domestic violence

waiting period

Question 25

Why can govt refuse funding for abortion?

Answer 25

abortion is a negative liberty, not a positive one

Question 26

Maher v. Roe

Answer 26

case: govt doesn't have to fund abortions

Question 27

Harris v. McRae

Answer 27

case: govt doesn't have to fund abortions, even if medically necessary except for cases of rape or incest

Question 28

Rust v. Sullivan

Answer 28

it is ok for govt to prohibit funded health care provides from counseling abortion as a family planning method

Question 29

What is the Constitutional basis of the abortion right

Answer 29

due process contains substantive component (14th Amed)

Question 30

When can govt regulate abortion ?

Answer 30

as long as there is some rational connection to promoting a legitimate state interest, as long as the regulation does not place an undue burden

Question 31

Bowers v. Hardwick

Answer 31

upheld state anti-homosexual sodomy statute

Question 32

Why did the ct. uphold the law in Bowers?

Answer 32

ct decided there was no "fundamental right" for homosexuals to engage in sodomy b/c no connection to family, marriage, procreation, and not deeply rooted in scheme of ordered liberty

Question 33

What did the ct in Bowers reject as insufficient to provide a rational basis for legal analysis?

Answer 33

morality alone

Question 34

Lawrence v. TX

Answer 34

overturned Bowers

Question 35

What substantive right did Lawrence v. TX uphold?

Answer 35

right of adults to engage in consenting, non-commercial, private sexual activity regardless of marital status

Question 36

Is the right in Lawrence "fundamental?"

Answer 36

Probably, but ambiguous | It is an element of human dignity and equality

Question 37

What standard of scrutiny did the ct apply in Lawrence?

Answer 37

unclear what standard applied b/c unclear if right was fundamental. Ct. says there is no "legitimate" govt interest=rational basis review

Question 38

What standard of scrutiny SHOULD the ct have applied in Lawrence?

Answer 38

if the right were fundamental= scrict scrutiny

Question 39

Loving v. VA

Answer 39

case invalidated ban on interracial marriage. Freedom to marry as a fundamental part of the due process pursuit of happiness

Question 40

Zablocki

Answer 40

case invalidated the judicial permission requirement for child support obligors to marry

Question 41

Why did the ct. invalidate the judicial requirement for child support obligors to marry in Zablocki?

Answer 41

in this case the means were not narrowly tailored to the state interest

Question 42

Turner case

Answer 42

case invalidated the prohibition of prisoner's right to marry

Question 43

Baker v. Nelson

Answer 43

in 1971 ct failure to recognize homosexual right to marry for lack of a substantial federal question

Question 44

What did DOMA do?

Answer 44

blanket legislation that defined the words "spouse" and "marriage" in all Acts of Congress

Question 45

What harm did Windsor seek redress in Windsor v. US

Answer 45

tax for inheriting her wife's property

Question 46

Windsor v. US

Answer 46

invalidated DOMA

Question 47

Why did the ct. conclude that DOMA was unconstitutional?

Answer 47

1. equal protection 2. born of animosity 3. no state interest

Question 48

Did the ct consider same sex marriage a fundamental right in Windsor?

Answer 48

unclear. The ct mentioned the liberty to be who someone wants to be and the dignity of personal choice

Question 49

What level of scrutiny was applied in Windsor?

Answer 49

unclear. Balancing test like Lawrence

Question 50

What are Windsor's implications?

Answer 50

case held: federalism==states may define who may marry, but state needs legitimate interest to justify the govt's intrusion on the right

Question 51

Bostic v. Rainey

Answer 51

District Ct. held that the right to marry is "fundamental" as a matter of due process. For Const. purposes there is no meaningful difference btwn same sex and opposite sex marriage

Question 52

What level of scrutiny did the Dist. Ct. apply in Bostic?

Answer 52

strict: compelling interest not narrowly tailored

Question 53

What did the Dist Ct say about VA's alleged interest in defining marriage?

Answer 53

tradition--not compelling or legitimate federalism--fed const. rights trumps state law protecting children--just silly