Substantive Due Process

Since 1937 the Court has employed a two-tiered analysis of substantive due process claims. Under the first tier, legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law will be overturned only if it serves no rational government purpose. Under the second tier, legislation concerning fundamental liberties is subject to heightened judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant government purpose.

The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the BILL OF RIGHTS. Through a process known as "selective incorporation," the Supreme Court has interpreted the Due Process Clause of the FOURTEENTH AMENDMENT to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the SECOND AMENDMENT right to bear arms, the THIRD AMENDMENT right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have "selectively incorporated" the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. LEGAL HISTORY. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from ARBITRARY impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination.

These interests often are grouped to form a general right to privacy, which was first recognized in GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where the Supreme Court struck down a state statute forbidding married adults from using BIRTH CONTROL on the ground that the law violated the sanctity of the marital relationship. In Griswold the Supreme Court held that the First, Fourth, Fifth, and Ninth Amendments create a PENUMBRA of privacy, which serves to insulate certain behavior from governmental coercion or intrusion. According to the Court, this penumbra of privacy, though not expressly mentioned in the Bill of Rights, must be protected to establish a buffer zone or breathing space for those freedoms that are constitutionally enumerated.

Seven years later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Supreme Court struck down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons. In striking down this law, the Supreme Court enunciated a broader view of privacy, stating that all persons, married or single, enjoy the liberty to make certain intimate decisions free from government restraint, including the decision of whether to bear or beget a child. Eisenstadt foreshadowed the decision in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an ABORTION during the first trimester of pregnancy without state interference. Roe subsequently was interpreted to prevent state and federal governments from passing laws that unduly burden a woman's right to terminate her pregnancy (WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 [1989]).

The liberty interest protected by the Due Process Clause places other substantive limitations on legislation regulating intimate decisions. For example, the Supreme Court has recognized a due process right of parents to raise their children as they see fit, including the right to educate their children in private schools (Pierce v. Society of the Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 [1925]). Parents may not be compelled by the government to educate their children at public schools without violating principles of substantive due process. The Supreme Court also has ruled that members of extended families, such as grandparents and grandchildren, enjoy a due process right to live under the same roof, despite housing ordinances that limit occupation of particular dwellings to immediate relatives (Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 [1977]).

During the 1990s the Supreme Court was asked to recognize a general right to die under the doctrine of substantive due process. Although the Court stopped short of establishing such a far-reaching right, certain patients may exercise a constitutional liberty to hasten their deaths under a narrow set of circumstances. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that the Due Process Clause guarantees the right of competent adults to make advanced directives for the withdrawal of life-sustaining measures should they become incapacitated by a disability that leaves them in a persistent vegetative state. Once it has been established by clear and convincing evidence that a mentally incompetent and persistently vegetative patient made such a prior directive, a spouse, parent, or other appropriate guardian may seek to terminate any form of artificial hydration or nutrition.

The U.S. Court of Appeals for the Ninth Circuit cited Cruzan in support of its decision establishing the right of competent, but terminally ill, patients to hasten their deaths by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [1996]). In WASHINGTON V. GLUCKSBERG, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), however, the Supreme Court reversed this decision, holding that there is no due process right to assisted suicide.

The liberty interest recognized by the doctrine of substantive due process permits individuals to lead their lives free from unreasonable and arbitrary governmental impositions. Nevertheless, this liberty interest does not require the absence of all governmental restraint. Economic regulations will be upheld under the Due Process Clause so long as they serve a rational purpose, while noneconomic regulations normally will be sustained if they do not impinge on a fundamental liberty and otherwise are reasonable.

The U.S. Supreme Court continues to revisit the concept of substantive due process. In 2003 the Supreme Court was asked to review the constitutionality of a Texas statute criminalizing homosexual SODOMY. The statute made it a misdemeanor for a person to engage in "deviate sexual intercourse" with another individual of the same sex, but did not prohibit such conduct when undertaken with a person of the opposite sex. The defendant, an adult male, was arrested for violating the statute by engaging in consensual homosexual relations in the privacy of his home. The Court found that Texas Penal Code section 21.06 violated substantive due process by creating this double standard governing the legality of oral and anal sex between heterosexual and homosexual partners. LAWRENCE V. TEXAS, 539 U.S.___, 123 S.Ct. 2472, 156 L.Ed. 2d 508 (U.S., Jun 26, 2003). Justice ANTHONY KENNEDY wrote the 6–3 decision.

Overruling a 17-year-old precedent, Kennedy said that history and tradition are the starting point, but not in all cases the ending point, of substantive due process inquiry. In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986), which rejected a claim advocating recognition for an almost identical substantive due process liberty interest, Kennedy maintained that the Court had failed to appreciate the nature and scope of the liberty interest at stake. "To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward [in that case], just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," Justice Kennedy explained. Although "[t]he laws involved in Bowers and here are … statutes that purport to do no more than prohibit a particular sexual act…. [t]heir penalties and purposes … have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home," the Court continued. The statutes in question "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

The deficiencies in Bowers became even more apparent in the years following its announcement, Justice Kennedy observed. The 25 states with laws prohibiting sodomy in Bowers had been reduced to 13 by 2003, and four of those 13 states applied their laws only against homosexual conduct. But even in the states where homosexual sodomy is proscribed, Kennedy emphasized, there is a pattern of nonenforcement with respect to consenting adults acting in private. Thus, the Court concluded that homosexuals enjoy a constitutionally protected liberty under the Due Process Clause and that liberty gives them a right to engage in private consensual sexual activity without intervention of government.