Skinner v. Oklahoma

With Skinner, the Court charted a new course determining what rights are so fundamental to personal liberty that any laws restricting those rights violate the due process guarantee simply because of the activity they affect. Such issues invoke the Fourteenth Amendment's guarantee of "liberty." As a result, laws affecting such fundamental rights as marriage and procreation were subjected to closer scrutiny by the courts and could only be justified by a governmental compelling interest. The decision thus created the "fundamental interest" test for equal protection cases. The scope of constitutional liberties would soon expand to include a list of newly recognized noneconomic fundamental rights. A line of rulings followed over the next half century considering the substance of state laws under the equal protection guarantee by applying the substantive due process doctrine.

In 1964 voting rights were recognized in Reynolds v. Sims. The right to vote, the Court found, bears on the preservation of "other basic civil and political rights." The Court in Griswold v. Connecticut (1965) held that the decision to use contraception was a family right and a right of privacy. Any state prohibitions against contraception deprived married couples of that liberty without due process of law. Justice Douglas noted the "right to privacy" surrounding the marital relationship is "older than the Bill of Rights." Two years later, the Court recognized the constitutional right to a choice in marriage in Loving v. Commonwealth of Virginia (1967) by striking down a state law prohibiting interracial marriages. In finding the law violated equal protection and denied due process, the Court held, "The freedom to marry (is) . . . one of the vital personal rights essential to the orderly pursuit of happiness by free men." As expressed in the Griswold decision, there exists a "realm of family life which the state cannot enter without substantial justification." Through these series of rulings, the Court interpreted the Constitution as placing limits on states' rights to interfere in a person's fundamental decisions concerning family and parenthood. Other fundamental rights identified in the 1960s were an indigent's right to equal access to justice and the right of unhindered interstate travel.

The right to privacy established in Griswold rose to greater prominence in Roe v. Wade (1973) in recognizing the right of a woman to choose abortion. In Roe, the Court found the Fourteenth Amendment's implicit guarantee of personal privacy extended to "activities relating to marriage, procreation, contraception, family relationship, and child rearing and education." The Court further stated only those personal rights determined "fundamental" or "implicit in the concept of ordered liberty" can be included in the guarantee of personal privacy under the Fourteenth Amendment.

Some justices responded they found no right to these liberties expressed or implied anywhere in the Constitution. Justice William Rehnquist in 1972 described such interests "as a judicial superstructure, awkwardly engrafted upon the Constitution itself." Consequently, no further fundamental rights have been identified after the 1960s. The Court denied fundamental rights protection to food, housing, education, and, in the mid-1990s, to sexual orientation in Romer v. Evans (1996).

The Skinner finding continued to be cited in numerous Court decisions for over a half century after it was issued. The "right to control one's person" was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The Court held that,

personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . (were) the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, . . . (and) central to the liberty protected by the Fourteenth Amendment . . . the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

The procreation right became much more complex in the 1980s as artificial reproduction technologies expanded. Procreation issues grew beyond the family to include sperm and egg donors and surrogate mothers, and the rights to frozen sperm and embryos after divorce, or even after the death of a spouse. As highlighted in Kass v. Kass (1998), courts initially resorted to contract law to resolve such disputes. Many believed these issues would ultimately have to be resolved in the realm of human rights.