DUE PROCESS AND OTHER RIGHTS
A) GOALS
• To understand the difference between procedural due process and substantive due process.
• To understand fundamental rights and non-fundamental rights and the strict scrutiny and rational basis tests.
• To understand the difference between due process and equal protection.
• Identify the different tests used in equal protection analysis.
• To understand the First Amendment.
B) Summary
I. Due Process and Protection of Rights
A. What is Due Process
There are two places in the Constitution where you find “Due Process of Law” mentioned: The Fifth and Fourteenth Amendment. The Fifth Amendment provides:
“Nor shall any person . . . be deprived of life, liberty, or property, without due process of law”
The FOURTEENTH AMENDMENT, in section, 1 states:”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fifth Amendment’s due process clause was directed towards the federal government as opposed to the due process clause of the Fourteenth Amendment, which was directed to the States. Due process incorporates most of the rights under the Bill of Rights as well and it guarantees citizens both fair process and bars arbitrary laws. There are two types of due process. One is Procedural Due Process and the other is Substantive Due Process. In this unit we will discuss the differences between both.
B. Procedural Due Process
What is procedural due process? It is the protection against the depravation of rights without adequate procedures, but all rights are not protected by procedural due process. Only certain liberty and property rights are protected. The Supreme Court is the one that determines which rights are protected under procedural due process. The Supreme Court takes certain factors into consideration to determine which rights are protected. They look at the severity of the loss suffered and whether the interest has been protected in the nation’s history and traditions. Myer v. Nebraska, 262 U.S. 399 (1923), some of the rights protected as per the Supreme Court are:
1. A person’s liberty;
2. A person’s life;
3. Right to marry;
4. Right to contract;
5. Right to engage in any of the common occupations of life.
Once it has been determined what rights are included in procedural due process then the determination of what process is due still remains. The more precious the right the more stringent the process. For example, depravation of a person’s liberty carries a process that requires notice, a fair hearing, and a fair judge. The same does not apply to the suspension of a drivers license.
C. Substantive Due ProcessWhat is substantive due process?Substantive due process is certain fundamental interests receive special protection and these interests are determined by the Supreme Court. The Supreme Court has determined that the liberty portion of the Fourteenth Amendment contains the rights that are deemed fundamental. Most of the rights are found in the Bill of Rights, such as freedom of speech, of religion, and the right to trial by jury, to state a few. Some of these fundamental rights found by the Court are not necessarily found written in the Constitution.
Well how does the Supreme Court go about finding these rights? In Poe v. Ullman, 367 U.S. 497 (1962), Justice Harlan in his dissenting opinion, presented a methodology for determining these fundamental rights. Justice Harlan stated in the dissent, in part, that ” it is a rational continuum which, broadly speaking, includes freedom from all substantial arbitrary impositions and purposeless restraints and which also recognizes what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the States needs asserted to justify their abridgement. Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Thought we exercise limited and sharply restrained judgment, yet there is no mechanical yard-stick, no mechanical answer.
The decision of an apparently novel claim must depend on grounds which follow closely on wee-accepted principles and criteria.”When a State passes a law that interferes with a protected liberty, the Court will step in and protect that fundamental right. Like I stated previously, not all established fundamental rights are found written in the Constitution. The Court has found that having a family is a protected aspect of liberty and is protected from state interference. In the case of, Planned Parenthood of Southeastern PA. v. Casey, 505 U.S. 833 (1992), the Supreme Court stated that “matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. A the heart of liberty is the right to define one’s own concept of existence, of the universe and the mystery of human life.”
The Supreme Court, based upon the above analysis, first determines what are fundamental rights afforded the individuals by the Constitution. Then they move on to the second analysis, if the law passed by the State infringes upon that individual’s fundamental right. How do they determine this? The Court has established a test, the strict scrutiny test. What is the strict scrutiny test? When a State passes a law by majority vote in the legislature, the Supreme Court will review it and determine whether it serves a compelling state interest. The law in question must be the least restrictive way to achieve that interest. If the Court determines that it does not serve a compelling and it is not the least restrictive way to achieve that, then the law is found to be unconstitutional. This test is very difficult for the State to pass. Fundamental rights override majority vote in the states’ legislatures.
The Supreme Court uses another test when non-fundamental rights are infringed upon by a law passed by a legislature. This is the rational basis test. What is the rational basis test? When a non-fundamental right is at issue to pass the rational basis test the law only has to be rationally related to a legitimate state interest. In other words, the Court will not find a law passed by a majority vote in the legislature unconstitutional if it is rationally related to a legitimate state interest because the states have the right to exercise their police power given to them by the Constitution to protect their citizens, for an explanation of these two tests see, Bowers v. Hardwick, 478 U.S. 186 (1986), and Lawrence v. Texas, 123 S.Ct. 2472 (2003).
II. Equal Protection
A. The Equal Protection Clause
The Equal Protection Clause is found in the Fourteenth Amendment of the Constitution. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” What is the equal protection clause? It means that when a law is passed by the federal or state government, it cannot single out or classify a group of people and treat them unequally or dissimilarly from others unless it passes one of three tests established by the Supreme Court. What are these tests? Well, we have again the strict scrutiny test, the middle-level scrutiny test and the rational basis test. The strict scrutiny is for classifications dealing with fundamental rights or based on race or national origin. The middle-level scrutiny tests deals with classifications based on gender and illegitimacy. The rational basis test is anything that is not included in the other two tests. The first and last tests mentioned are the same tests in the due process analysis.
Let’s discuss the middle-level scrutiny test. The Supreme Court has found that gender discrimination is not a suspect classification; therefore, no fundamental rights are violated. This test is a lower standard is used and the law passed only need to serve an important governmental interest. The law itself only has to relate substantially related to the law’s objective. In these cases the law may or may not be found unconstitutional.
Some examples of equal protection classifications are:
• Race/ethnicity: Brown v. Board of Education, 347 U.S. 483 (1954).
• Fundamental rights; procreation; vote; access to courts; travel marriage:Skinner v. Oklahoma, 316 U.S. 535 (1942); Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978); Griffin v. Illinois, 351 U.S. 12 (1956); Shapiro v. Thompson, 394 U.S. 618 (1969).
• Illegitimacy:Trimble v. Gordon, 430 U.S. 762 (1977).
• Age, welfare assistance; right to die; poverty/wealth; mental retardation; sexual orientation.Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973); Vasco v. Quill, 521 U.S. 793 (1997); James v. Valtierra, 402 U.S. 137 (1971); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); Romer v. Evans, 517 U.S. 620 (1996)
All three types of tests are used to determine the constitutionality of the law passed if it regulates one of these classifications.
IV. First Amendment RightsThe First Amendments States:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”Most of the First Amendment’s rights have been incorporated to the States through the Due Process Clause of the Fourteenth Amendment. These rights also apply to the federal government.We will only discuss freedom of speech, freedom of the press and freedom of religion.
A. Freedom of Speech
What is freedom of speech? It is not what the ordinary citizen thinks it is. When you ask an ordinary citizen, “what is freedom of speech?” They will answer, “I can say whatever I want.” Can you say whatever you want? The answer is no! In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court said, “the bedrock principle underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” When the Court reviews a case based on First Amendment violations the Court uses the strict scrutiny test. As you remember, in the strict scrutiny test the government must show that the law serves a compelling state interest and it is the least restrictive way to accomplish this end. The Court uses this test when the government is trying to regulate the content of the speech itself. When the law in question is not trying to regulate the content of the speech and it is only trying to regulate the time, place, and manner of the speech, the Court will use a lesser standard of review.
What is content neutral law?It is a law that serves purposes unrelated to the content of expression. In Kovacs v. Cooper, 336 U.S. 558 (1948), the Court found that a law that banned trucks with loud speakers, that propounded loud and unbearable noises was content neutral and it only regulated the time, place and manner of the speech and it was not the content of the music that was being regulated. The regulation was for the protection and well being of the citizens and it served a legitimate state interest. Symbolic speech is when a person’s conduct is classified as speech. For example, a law prohibiting the burning of an American flag is unconstitutional. Why? The Court has determined that this conduct is symbolic speech because it is the expression of an idea. The conduct or speech is content based and the law prohibiting such conduct has to serve a compelling state interest.
As we noted earlier all speech is not protected. What speech is not protected?
The following categories of speech are not protected, as stated by the Supreme Court:
Fighting Words
Fighting words are not protected under the case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1924). These are words that inflict injury and tend to incite an immediate breach of the peace. Another example is shouting “fire” in a crowded theater. Also, is not protected speech under the First Amendment.
Clear and Present Danger
A person expressing the violent overthrow of the government through the use of force to produce imminent lawless action is not protected speech under the Constitution. Brandenburg v. Ohio, 395 U.S. 494 (1969). Not allowing this type of speech is a compelling government interested.
Obscenity
In the case of Miller v. California 413 U.S. 15 (1973), the Supreme Court laid out a test to determine what speech or materials are deemed obscene:
1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interests;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the application of state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Therefore, obscenity will be determined by local community standards. What is obscene in one city may not be obscene in another. The jury in the community in which a defendant is being prosecuted under an obscenity statute, will determine whether the materials or acts are obscene applying the above test and employing their local community standards.
B. Freedom of Religion
The First Amendment freedom of religion clause has two sections.
1. The Free Exercise of Freedom of Religion; and
2. The Establishment Clause.
We will touch upon them briefly.
The free exercise of freedom of religion means the right to believe and practice whichever religious principles one wishes to follow without government interference. The government cannot force anyone to join a religion; punish and individual for practicing the religion; impose a government sponsored religion and get involved in religious controversies and take sides. There are many Supreme Court Cases that speak to this issue and we are going to look at two. One affords the parties the free exercise of freedom of religion and the other does not. The cases of Church of the Lukumi Babalu Aye, 508 U.S. 520 (1993), and Reynolds v. United States, 98 U.S. 145 (1879).
Be prepared to discuss these two cases and their significance.
The establishment clause so called “separation of church and state.” This means the government is prohibited from establishing or forcing the practice of any religion. However, the government can under Lemon v. Kurtzman, 403 U.S. 602 (1971), extend benefits to religion. The Supreme Court in the Lemon Case laid out a test to determine if the establishment clause if being violated by the government. The test consists of three elements, which must all be met. Firstly, there is a secular governmental purpose. Secondly, the primary effect of the benefits neither advance nor inhibits religion. Thirdly, there is no excessive governmental entanglement with religion. To discuss this Lemon test we will look at and discuss the case of Stone v. Graham, 449 U.S. 39 (1980), also look at Allegheny County v. American Civil Liberties Union, 492 U.S. 573 (1989).
