CON LAW II Due Process Clause- Vehicle for incorporation. Maintained but not extended in casey.

Modern Substantiave Due Process Virginia v. Loving Where does the due process to the right to marry come from? Skinner v. Oklahoma makes marriage a a basic civil right. State must have a compelling reason/State interest to have law that includes racial discrimination. Marriage can be regulated but once we declare it a fundanmental interest we have to rationalize the law from strict scrutiny. Fundamental Right + Suspect class = strict Scrutiny Zablocki v. Rehail - Marriage is again being interfered with so we must have strict scrutiny. This is similiar to Turner in the prisoner case because there is not a good enough reaspn beacuase we have a fundamnetal interest. How does this line of cases related to the Griswold, Roe and Casey cases? They are all related to privacy that was created in Griswold. State cannot interfere with private right to get married. What is the difference between Moore and Belle Terre? Moore we are dealing with a family. In Belle Terree we have a family of choice. Belle Terre Court does not give the same due process family protection. Family gets heightened scrutiny in Moore because there is a traditon of these kinds of extended families. There is no tradition of protecting a group of friends. Troxel v. Granville v. Michael Why doesnt the grandma get heightend scrutiny? There is a fit parent which gives them a fundamental right to decided who their child gets to spend time with. Michael H goes back and tries to protect the tradition of protecting the family. Troxel is protecting the tradition of parenthood. From this group of cases we kniw there is fundamental interest in marriage and parenthood. Bowers v. Hardwick and Lawrence v. Texas States are trying to Ban Sodamy for morality reasons that this kind of sex is a bad thing and should be discouraged. These cases are different because there is question of whether is a fundamental right. Those cases are about marriage procreation and family. Sodamy has nothing to do with marriage and procreation. Next we look to see if there is a history of protecting sodamy. There is no traditon so now we look at a rational basis test. The rational basis is morality. Georgia in Bowers thought the behavior was immoral. Sodamy law got upheld in Bowers. In Lawrence v. Texas the anti-sodamy laws get overulled. They say that there is no tradition for these types of laws and the law were about no procreation and they were no about homosexuals sexual acts. Therefore there is no tradition for these laws. They describe this interest as more broad as a consensual private act that Homosexuals or straights would want the ability to do this. Sodomy is part of the homosexual relationship so this case is about homosexuals being able for form relationships. The anti sodomy laws basically prevent homosexuals from forming relationships which is unconstitutional. We are creating a fundamental liberty interest in forming consensual relationships either straight or homsexuals. Suggests that morality is no longer a rational basis for making a law a legitimate state interest. Court is not clear whether this is a rational basis test. State cant just say this is legitimate

because we dontlike the idea of people doing this. Morality is taken off the table for a justification of state action. How does this effect cheating or fornication laws? They are not clear on whether this is heightened scrutiny it is vaque whether this is heightened scrutiny or rational basis test. Why does Lawrence overule bowers? the court framed the issue too narrowly, as to whether the constitution contains a fundamental right for homosexuals to commit sodomy. Because the historical reasoning of Bowers was overstated, if not simply wrong, Bowers is now overruled. Zero dark thrity meets Bruno meets starsky and hutch Concurrence: You cant do this to just one group. If you want an anti sodamy law then you have to apply to everyone equally. This is therefore an equal protection issue. A bare desire to harm homosexuals is not a legitimate state interest under rational-basis review. Dissent Scalia Scalia doesnt like the use of non american law. The Impact of Lawerence: Morality is no longer a justification for a law like it was despite what Scalia wishes. There is also a looser scrutiny placed on the cases. We do not really look at which type of scrutiny that is placed on the case rather we just make up as a means to an end. Tradition is also looked at differently. It is more of the current history and tradition not a deep historical root. Goodridge In class we went through the rationality of the cases. Goodridge led the way but uses state constitutional law. Court rejects the To Page 562 +Windsor case of supplement Windsor-http://www.law.cornell.edu/supct/cert/12-307 What is Doma? I defines the term marriage for all purposes under federal law. Therefore this does not apply to state law. Doma say s states do not have to recognize marriages of other states who to recognize gay marriage. Kennedy says Doma is interfering with states ability to make their own legislation. How do we square this with loving? In loving the court found that they were violating the constitution in this case. Kenndey makes a bad federalsim argument here but seems to be trying to answer Scalias federalism argument in the dissent. Scalia is saying congress should overturn this which is a federalsim argument. In class we then discuessed the rationality of Doma which included social implications, effects on economy and tax/federal records of the messyness that comes with gay married couple being recognized based on the state they are currently residing, federalism concerns. Unlike loving which is a racial classificaiton it is determined at strict scrutiny. Windsor is determined on a rational basis and the states may come up with a rational basis. Assisted Suicide

Cruzan:Where does the liberty for rejecting resucitation or ending feeding tubes. State has an interest in keeping everyone alive and the preservation of life. State has an interest in having a population. Also have an interest in protecting people from abuse and making people jump through hoops before they can reject life sustaining measures. Brenna in a dissent talks about how a generalize state interest is not here. Brenna talks about letting a person die with dignity. There is difference betwen a right where you are allowed to commit suicide as a healthy person with somewhat of a good outlook and a person who is terminally ill like in this case who may decide to end their life. Are you allowed to ask for a physicans assistance in ending your life. The case talks about the history and traditions of prohibiting the assistance of suicide. The states interest comes in protecting people. The state is making an administrative argument that it could get messy to decide what is a legal assisted suicide. We do have the right to control or death in that we can reject recussiation or feeding tubes. Also make the argument that this makes the medical profession look bad. Doctors are here to help not kill people. Healthy people No liberty to controlling death Terminally ill Can decide to pull plug or refuse medical help. Terminallu competent unrelieved pain Mau have libery to argument because the physician would be helping them alleviate the pain. There is a dignity interest, so the person can die without less pain. O Connors talks about terminally ill people might have libery to control their death. How do we determine is something is a substantive due process right: We determine if there is a tradition for this and we must first determine what we are looking for...we have to decide if we are going to look at deeply rooted tradition or recent trends. We look at the pneumbra of the rights to see if they create a fundamental libery... get it close to one of the first 8 amendments. Then we would look at the state interests in making the postal people wearing the same uniform. Just tradition or moral dissaproval would have to be used to justify in limiting the right. Equal protection 601-620