Substantive Due Process

Strict Scrutiny Standard

There must be a compelling interest and the least restrictive means is usedto uphold a law that infringes on fundamental rights

Heightened Scrutiny

There must an actually legitimate purpose and not cause an undue burden

Rational Basis

Any conceivably legitimate purpose with a reasonable relationship to accomplishing that means

Fundamental Rights

Right of Students to pursue knowledge

Rights of parents to control upbringing

Right of teachers to teach without undue influence

Regulations on family life

Married and using contraceptives

Unmarried and using contraceptives

Competent person to refuse life-sustaining care

Right to counsel

NOT Fundamental

Potential father to assert parental rights in existing marriage

Right to reproduce

Lower than clear and convincing for incompetent person to stop life-sustaining care

Physician-assisted suicide

Basically Fundamental

Gay sodomy

Gay marriage MUST BE MONOGAMOUS

Is mere moral disapproval enough?

NEVER, NOT EVEN FOR RATIONAL BASIS

How to determine if fundamental right?

whether in light of historical practice in Anglo-American law, the practice is a fundamental principle of liberty & justice that inheres in the very concept of a free society

historically protected under common jurisprudence

Steps of Analysis

(1) State action?

(2) Is a fundamental right at stake?

(3) Apply Twinning and Palko

(4) Apply level of scrutiny