The Due Process Debate: Substantive Law's Reach

Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference. The Fifth and Fourteenth Amendments of the U.S. Constitution prohibit the government from depriving any person of life, liberty, or property without due process of law. Substantive due process differentiates between procedural and substantive rights. Procedural rights address the government's obligation to ensure that legal procedures are carried out in a fair and just manner, while substantive rights are general rights that individuals possess and upon which the government may not infringe.

The right to privacy

The Supreme Court first recognised the "right to privacy" in Griswold v. Connecticut (1965), a ruling that upheld marital privacy and struck down bans on contraception. The Court found that the Constitution creates a "zone of privacy" when the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments are taken together.

In addition to the Griswold case, the Supreme Court has extended the right to privacy in several other cases, including:

• Eisenstadt v. Baird (1971)
• Roe v. Wade (1973)
• Lawrence v. Texas (2003)
• Whalen v. Roe (1977)
• NASA v. Nelson (2011)

The right to marry

The Supreme Court has interpreted substantive due process to include the right to marry, specifically ruling that the right to marry a person of a different race is protected by substantive due process. In Loving v. Virginia (1967), the Court found that Virginia's ban on interracial marriages violated the Due Process Clause as it interfered with "the fundamental freedom" of marriage. The Court also indicated that the law violated the Equal Protection Clause as it classified on the basis of race.

The Defense of Marriage Act (DOMA), passed in 1996, had banned federal recognition of same-sex marriage and allowed states to refuse to recognize such marriages. However, in United States v. Windsor (2013), the Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause, requiring the federal government to recognize same-sex marriages conducted by the states. The Respect for Marriage Act, passed in 2022, repealed DOMA and was signed into law by President Joe Biden.

The right to refuse medical treatment

All adults with decision-making capacity have the right to accept or decline medical treatment, even if it may result in a poor outcome, including death. This right is considered a negative right, allowing individuals to be free from unwanted medical interventions. Overriding a decisional patient's refusal is not ethically or legally permissible. However, this right is not absolute and may be limited in certain circumstances, such as when an individual poses a threat to the community if left untreated or when parental decisions endanger a child's life.

In the context of civil commitment, the Supreme Court has examined the due process rights of patients with mental illnesses to refuse antipsychotic medications. In Cruzan v. Director, Missouri Department of Health, the Court addressed whether an incompetent individual has a constitutional right to decline life-saving nutrition and hydration. While the Court upheld the state's imposition of evidentiary requirements, a majority of Justices recognised that a competent person has a constitutionally protected right to refuse life-sustaining medical interventions.

The right to freedom of speech and religion

The First Amendment of the United States Constitution protects the right to freedom of religion and expression from government interference. The Establishment Clause prohibits the government from establishing an official religion or preferring one religion over another, while the Free Exercise Clause prohibits the government from interfering with a person's practice of their religion. The First Amendment also protects the freedom of speech, which is recognised as a human right under Article 19 of the Universal Declaration of Human Rights.

The Due Process Clause of the Fourteenth Amendment has been interpreted by the Supreme Court as protecting the rights in the First Amendment from interference by state governments. The Fifth Amendment, which applies to federal action, also protects individuals from being deprived of "life, liberty, or property without due process of law".

The concept of substantive due process has been interpreted to include the right to marry. The Supreme Court has recognised the right to marry an individual of the same sex, as well as the right to marry a person of a different race.

The right to freedom of religion and speech is not absolute, however. The Supreme Court has recognised that the government may prohibit some speech that may cause a breach of the peace or violence. Additionally, the government may prohibit people from associating with groups that engage in and promote illegal activities.

The right to raise children

The right to raise one's children is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. This right is rooted in the concept of family autonomy and the belief that the institution of the family is deeply rooted in American history and tradition. The Supreme Court has held that the Due Process Clause protects the sanctity of the family and the liberty of parents to direct the upbringing, education, and care of their children.

One notable case that affirmed the right of parents to raise their children is Meyer v. Nebraska (1923). In this case, the Supreme Court held that a statute forbidding the teaching of the German language impermissibly encroached on the liberty of parents to direct their children's education. The Court recognised that the Due Process Clause of the Fourteenth Amendment protects the right of parents to "bring up" their children, which includes the choice of language in which they are taught.

Another important case is Pierce v. Society of Sisters (1925), where the Court struck down an Oregon statute requiring children to attend public schools. The Court ruled that this statute interfered with the right of parents to select private or parochial schools for their children and that it lacked a reasonable relation to any legitimate state interest. This case further solidified the principle that parents have a fundamental right to make decisions regarding their children's upbringing and education.

In addition to these cases, there have been several other instances where the Supreme Court has addressed the right to raise children. For example, in Wisconsin v. Yoder (1972), the Court upheld the rights of an Amish father to take his children out of school to provide them with an education consistent with their religious beliefs. Troxel v. Granville (2000) also recognised the right of parents to make decisions regarding their children's visitation with grandparents, striking down a Washington statute that allowed judges to order more visitation than the parents desired.

While the right to raise children is well-established, it is not without its limitations. The state has an interest in protecting the welfare of children and may intervene in certain situations, such as when children are exposed to serious hazards or when parents are deemed unfit. Additionally, the right to raise children does not extend to all close relationships, such as same-sex relationships, as recognised in Bowers v. Hardwick (1986).

Frequently asked questions