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he home, held that Stanley did not implicitly create protection for ‘‘voluntary sexual conduct [in the home] between consenting adults.’’ 626 Instead, the Court found Stanley ‘‘firmly grounded in the First Amendment,’’ 627 and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00113 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1784 AMENDMENT 14—RIGHTS GUARANTEED 628 Roe v. Wade, 410 U.S. 113, 152 (1973). 629 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion. 630 ‘‘[N]one of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.’’ 478 U.S. at 190-91. 631 478 U.S. at 191. The Court asserted that Carey v. Population Services Int’l, 431 U.S. 678, 694 n.17 (1977), which had reserved decision on the issue, had established that the privacy right ‘‘did not reach so far.’’ 632 478 U.S. at 191. consenting adults, including adultery, incest, and other sexual crimes. This, said the Court, was a step it was not willing to take. So, what of an expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior. ‘‘The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541–42 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453–54; id. at 460, 463–65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.’’ 628 The limits of this doctrine were amply demonstrated in 1986 by, again, Bowers v. Hardwick, 629 where the Court by 5–4 vote roundly rejected the suggestion that the privacy cases protecting ‘‘family, marriage, or procreation’’ extend protection to private consensual homosexual sodomy, 630 and also rejected the more comprehensive claim that the cases ‘‘stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.’’ 631 Justice White’s opinion for the Court in Hardwick sounded the same opposition to ‘‘announcing rights not readily identifiable in the Constitution’s text’’ that underlay his dissents in the abortion cases. 632 In addition, the Court concluded that rationales relied upon in the earlier VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00114 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1785 633 In the Court’s view, homosexual sodomy is neither a fundamental liberty ‘‘implicit in the concept of ordered liberty’’ nor is it ‘‘deeply rooted in this Nation’s history and tradition.’’ 478 U.S. at 191-92. 634 478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified this theme, concluding that constitutional protection for ‘‘the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.’’ Id. at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not prosecuted, and had initiated the action to have the statute under which he had been charged declared unconstitutional). Id. 635 The Court voiced concern that ‘‘it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.’’ 478 U.S. at 195-96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217– 18) suggested that these crimes are readily distinguishable. 636 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomous acts by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219. 637 478 U.S. at 204-06. 638 478 U.S. at 190. See also Paul v. Davis, 424 U.S. 693, 713 (1976). 639 431 U.S. 678 (1977). privacy cases do not extend ‘‘a fundamental right to homosexuals to engage in acts of consensual sodomy.’’ 633 Heavy reliance was placed on the fact that prohibitions on sodomy have ‘‘ancient roots,’’ and on the fact that half of the states still prohibited the practices. 634 The privacy of the home does not immunize all behavior from state regulation, and the Court was ‘‘unwilling to start down [the] road’’ of immunizing ‘‘voluntary sexual conduct between consenting adults.’’ 635 Interestingly, Justice Blackmun’s dissent in Hardwick was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited. 636 Justice Blackmun would have instead addressed the issue more broadly as to whether the law violated an individual’s privacy right ‘‘to be let alone.’’ The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy. 637 This position was rejected by the majority, however, which held that the thrust of the fundamental right of privacy in this area is one functionally related to ‘‘family, marriage, motherhood, procreation, and child rearing.’’ 638 Even as limited by Roe, the concept of privacy still retains sufficient breadth to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services International, 639 recognition of the ‘‘constitutional protection of individual autonomy in matters of childbearing’’ led the Court to invali- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00115 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1786 AMENDMENT 14—RIGHTS GUARANTEED 640 431 U.S. at 684-91. The opinion of the Court on the general principles drew the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented. The limitation of the number of outlets to adults ‘‘imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so’’ and was unjustified by any interest put forward by the State. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring whether the restrictions serve ‘‘any significant state interest . . . that is not present in the case of an adult.’’ This test is ‘‘apparently less rigorous’’ than the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The attempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors’ sexual activity, the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from engaging in sexual activity. Id. at 691–99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702, 717. 641 The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712. 642 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, 431 U.S. at 684–85. date a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16. 640 The Court significantly extended the Griswold-Baird line of cases so as to make the ‘‘decision whether or not to beget or bear a child’’ a ‘‘constitutionally protected right of privacy’’ interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests. As exemplified by this case, the extent to which governmental regulation of the sexual activities of minors is subject to constitutional scrutiny is of great and continuing importance. 641 Analysis of these questions is hampered, however, because the Court has not told us what about the particular facets of human relationships— marriage, family, procreation—gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships to result in differing constitutional treatment. The Court’s observation in the abortion cases ‘‘that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,’’ occasioning justification by a ‘‘compelling’’ interest, 642 little elucidates the answers inasmuch as in the same Term the Court significantly restricted its equal protection VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00116 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1787 643 San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33–34 (1973). That this restriction is not holding with respect to equal protection analysis or due process analysis can be discerned easily. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring). 644 Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1928). 645 Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Unlike the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are ‘‘intrinsic human rights’’. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). These rights, however, do not extend to all close relationships. Bowers v. Hardwick, 478 U.S. 186 (1986) (same sex relationships). 646 Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978). 647 Zablocki v. Redhail, 434 U.S. 374, 386 (1978). 648 Zablocki v. Redhail, 434 U.S. 374 (1978). The majority of the Court deemed the statute to fail under equal protection, whereas Justices Stewart and Powell found the due process clause to be violated. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977). doctrine of ‘‘fundamental’’ interests—‘‘compelling’’ interest justification by holding that the ‘‘key’’ to discovering whether an interest or a relationship is a ‘‘fundamental’’ one is whether it is ‘‘explicitly or implicitly guaranteed by the Constitution.’’ 643 Whether there still exists an expansive right of ‘‘privacy,’’ as opposed to the limited ‘‘liberty’’ interest of more recent cases, is still unclear. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is now settled to be a ‘‘liberty’’ protected under the due process clauses, however, the analytical validity of denominating the particular right or interest as an element of privacy seems open to question. Family Relationships.—Unlike the shifting definitions of the ‘‘privacy’’ line of case, the Court’s treatment of the ‘‘liberty’’ of familial relationships has a relatively principled doctrinal basis. Starting with Meyer and Pierce, 644 the Court has held that ‘‘the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.’’ 645 For instance, the right to marry is a fundamental right protected by the due process clause, 646 and only ‘‘reasonable regulations’’ of such relationship may be imposed. 647 Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the State already has numerous other means for exacting compliance with support obligations. 648 In fact, any regulation which af- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00117 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1788 AMENDMENT 14—RIGHTS GUARANTEED 649 ‘‘If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’’’ Smith v. Organization of Foster Families, 431 U.S. 816, 862–63 (1977) (Justice Stewart concurring), cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255 (1978). 650 Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). The fifth vote, decisive to the invalidity of the ordinance, was on other grounds. Id. at 513. 651 Smith v. Organization of Foster Families, 431 U.S. 816 (1977). As the Court noted, the rights of a natural family arise independently of statutory law, whereas the ties that develop between a foster parent and a foster child arise as a result of State-ordered arrangement. As these latter liberty interests arise from positive law, they are subject to the limited expectations and entitlements provided under those laws. Further, in some cases, such liberty interests may not be recognized without derogation of the substantive liberty interests of the natural parents. Although Smith does not define the nature of the interest of foster parents, it would appear to be quite limited and attenuated. Id. at 842–47. In a conflict between natural and foster families, a court is likely to defer to a typical state process which makes such decisions based on the best interests of the child. See Quilloin v. Walcott, 434 U.S. 246 (1978). 652 Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no opinion of the Court. A majority of Justices (Brennan, Marshall, Blackmun, Stevens, White) was willing to recognize that the biological father has a liberty interest in a relationship with his child, but Justice Stevens voted with the plurality (Scalia, Rehnquist, O’Connor, Kennedy) because he believed that the statute at issue adequately protected that interest. 653 The clearest conflict to date was presented by state law giving a veto to parents over their minor children’s right to have an abortion. Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Casey, 503 U.S. 833 (1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child for treatment of mental illness). fects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny. There is also a constitutional right to live together as a family, 649 and this right is not limited to the nuclear family. Thus, a neighborhood which is zoned for single family occupancy, and which defines ‘‘family’’ so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the due process clause. 650 And the concept of ‘‘family’’ may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited. 651 On the other hand, the Court has held, the presumption of legitimacy accorded to a child born to a married woman living with her husband is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights. 652 The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights. 653 The Court has, however, imposed limits on the ability of a court to require that VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00118 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1789 654 530 U.S. 57 (2000). 655 530 U.S. at 66. 656 These principles have no application to persons not held in custody by the state. DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189 (1989) (no Due Process violation for failure of state to protect an abused child from his parent, even when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker). 657 Youngberg v. Romeo, 457 U.S. 307, 314–16 (1982). See Jackson v. Indiana, 406 U.S. 715 (1972); O’Connor v. Donaldson, 422 U.S. 563 (1975); Vitek v. Jones, 445 U.S. 480 (1980) Vitek v. Jones, 445 U.S. 480, 491–94 (1980). 658 Youngberg v. Romeo, 457 U.S. 307, 314–316 (1982). Thus, personal security constitutes a ‘‘historic liberty interest’’ protected substantively by the due process clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (liberty interest in being free from undeserved corporal punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Justice Powell concurring) (‘‘Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental actions’’). 659 In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the Court had said that ‘‘due process requires that the nature and duration of commitment bear some reasonable children be made available for visitation with grandparents and other third parties. In Troxel v. Granville, 654 the Court evaluated a Washington State law which allowed ‘‘any person’’ to petition a court ‘‘at any time’’ to obtain visitation rights whenever visitation ‘‘may serve the best interests’’ of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the ‘‘fundamental rights of parents to make decisions concerning the care, custody and control of their children,’’ 655 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child. Liberty Interests of the Retarded, Mentally Ill or Abnormal: Civil Commitment and Treatment.—The recognition of liberty rights for retarded or handicapped individuals who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The States, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for their own protection and for the protection of others. 656 Each individual, on the other hand, has a due process protected interest in freedom from confinement and personal restraint, and a liberty interest in reducing the degree of confinement exists even when individuals are properly committed. 657 Little controversy has attended the gradual accretion of case law in the lower courts, now confirmed by the Supreme Court, that the due process clause guarantees freedom from unsafe conditions of confinement and undue physical restraint. 658 A number of influential lower court decisions have also found a significant right to treatment 659 or ‘‘habili- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00119 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1790 AMENDMENT 14—RIGHTS GUARANTEED relation to the purpose for which the individual is committed.’’ Reasoning that if commitment is for treatment and betterment of individuals, it must be accompanied by adequate treatment, several lower courts recognized a due process right. E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 F. Supp. 1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972), aff’d in part, reserved in part, and remanded, sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds, 432 U.S. 563 (1975). 660 ‘‘The word ‘habilitation’ is commonly used to refer to programs for the mentally retarded because mental retardation is . . . a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills.’’ Youngberg v. Romeo, 457 U.S. 307, 309 n.1 (1982) (quoting amicus brief for American Psychiatric Association). 661 Youngberg v. Romeo, 457 U.S. 307, 319 (1982). 662 457 U.S. at 318 n.23. 663 457 U.S. at 317-18. Concurring, Justices Blackmun, Brennan, and O’Connor, argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with. Id. at 325. Chief Justice Burger rejected any protected interest in training. Id. at 329. The Court had also avoided a decision on a right to treatment in O’Connor v. Donaldson, 422 U.S. 563, 573 (1975), vacating and remanding a decision recognizing the right and thus depriving the decision of precedential value. Chief Justice Burger expressly rejected the right there also. Id. at 578. But just four days later the Court denied certiorari to another panel decision from the same circuit relying on its Donaldson decision to establish such a right, leaving the principle alive in that circuit. Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057 (1975). See also Allen v. Illinois, 478 U.S. 364, 373 (1986) (dictum that person civilly committed as ‘‘sexually dangerous person’’ might be entitled to protection under the self-incrimination clause if he could show that his confinement ‘‘is essentially identical to that imposed upon felons with no need for psychiatric care’’). tation,’’ 660 although the Supreme Court’s approach in this area has been tentative. For instance, in Youngberg v. Romeo, the Court recognized a liberty right to ‘‘minimally adequate or reasonable training to ensure safety and freedom from undue restraint.’’ 661 While the lower court had agreed with plaintiff’s theory of entitlement to ‘‘such treatment as will afford a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as [his] capacities permit,’’ 662 the Supreme Court felt that the plaintiff had reduced his theory to a claim for ‘‘training related to safety and freedom from restraint.’’ 663 But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts need to defer to professional decision making to determine what level of care was adequate. Professional decisions are presumptively valid and liability can be imposed ‘‘only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the deci- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00120 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1791 664 457 U.S. at 323. 665 E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir. 1980); Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course, lack of funding will create problems with respect to injunctive relief as well. Cf. New York State Ass’n for Retarded Children v. Carey, 631 F.2d 162, 163 (2d Cir. 1980). It should be noted that the Supreme Court has limited the injunctive powers of the federal courts in similar situations. 666 521 U.S. 346 (1997). 667 521 U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding that a state can not hold a person suffering from a personality disorder without clear and convincing proof of a mental illness). 668 Kansas v. Crane, 532 U.S. 930 (2001). 669 See Developments in th

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