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Article Excerpt
This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.
TABLE OF CONTENTS INTRODUCTION I. THE DOCTRINE: WHY LOWER FEDERAL COURT AND STATE JUDGES MUST FOLLOW GLUCKSBERG AND NOT LAWRENCE A. The Roberts Court Speaks: Gonzales v. Carhart B. Whither Justice Kennedy? 1. Lower Court and State Court Rulings 2. Other Substantive Due Process Rights 3. Troxel and Historical Substantive Due Process II. CONSTITUTIONAL THEORY: TRADITION AND CONSENSUS AS SOURCES OF SUBSTANTIVE DUE PROCESS RIGHTS A. Another Home for Substantive Due Process: The Privileges and Immunities Clause B. Individual and Class-Based Rights under the Privileges and Immunities Clause C. The Scope of Protection under the Privileges or Immunities Clause III. CONSTITUTIONAL THEORY: COMPARATIVE CONSTITUTIONAL LAW AS A SOURCE OF SUBSTANTIVE DUE PROCESS RIGHTS CONCLUSION
INTRODUCTION
The big question on the tenth anniversary of Washington v. Glucksberg (1) is whether the case is still good law after the intervening decision in Lawrence v. Texas. (2) Glucksberg appeared to foreshadow the end of freewheeling substantive due process analysis until in Lawrence Justice Kennedy seemed to take back everything that Glucksberg had said. Glucksberg had purported to limit substantive due process to only those rights that are deeply rooted in history and tradition, while Lawrence waxed poetic about the Supreme Court using an unhinged substantive due process doctrine to protect all of the sweet "myster[ies] of human life" (3) from morals laws. Which case is good law today? Was Justice Kennedy serious when he joined Chief Justice Rehnquist's opinion in Glucksberg? Or was he serious when he wrote Lawrence? Or is he perhaps just deeply conflicted and confused?
This Article will argue in Part I that Glucksberg is good law today and that the opinion in Lawrence is void for vagueness. Justice Kennedy's narrow, restrained approach to substantive due process in Gonzales v. Carhart, (4) the blockbuster partial birth abortion case decided this past term, shows that he and four other Justices have recommitted themselves to the narrow, restrained approach of Glucksberg in substantive due process cases. This approach is consistent with other past Kennedy opinions in substantive due process cases, and with the approach taken by lower federal and state courts since Lawrence was decided in 2003. I have no doubt that the holding of Lawrence is good law, and I consider it possible that the case might still govern in a narrow range of matters involving private, non-commercial sexual acts between two unrelated consenting adults, but I think the overwhelming majority of future substantive due process cases are going to be decided, as Gonzales was, with citation to Glucksberg and without reference to Lawrence.
In Parts II and III, I will argue that as a practical matter, there are three sources to which the Supreme Court can look to identify substantive due process rights: tradition, current-day consensus, and comparative constitutional law. I will argue that as a legal and policy matter, neither current day consensus nor the rulings of other constitutional courts around the world are an appropriate source of new substantive due process rights. Tradition may be problematic as a source of substantive due process rights as well, and it therefore ought to be used only in the clearest of cases. As it happens, I will argue, this is precisely what the framers of the Fourteenth Amendment originally meant for that Amendment to do.
I. THE DOCTRINE: WHY LOWER FEDERAL COURT AND STATE JUDGES MUST FOLLOW GLUCKSBERG AND NOT LAWRENCE
The first issue one must consider in any ten-year retrospective on Glucksberg is whether it or the intervening opinion in Lawrence governs the Supreme Court's approach to substantive due process cases. I will first address this question by considering the Supreme Court's decision last term in Gonzales v. Carhart; then I will look at Justice Kennedy's views on substantive due process; and finally I will look at recent lower federal court and state court decisions.
A. The Roberts Court Speaks: Gonzales v. Carhart
The decision this past term in Gonzales v. Carhart, the partial birth abortion case, was eagerly awaited by many as an indicator of how the appointments of John Roberts and Samuel Alito might have reshaped the Supreme Court on the issue of abortion rights. Would the new Court overrule Roe v. Wade, (5) Planned Parenthood of Southeastern Pennsylvania v. Casey, (6) or Stenberg v. Carhart? (7) What would be the Court's approach to the question of abortion fights? What would be its approach with regard to following precedent? Finally, and of critical interest here, what would be the new Court's approach to substantive due process? Would the substitution of Roberts and Alito for William Rehnquist and Sandra Day O'Connor change the balance of the Court on matters of finding new constitutional fights unmoored to text and history?
The opinion in Gonzales offers only cryptic hints on these questions, but the hints all point to Glucksberg. Significantly, the opinion of the Court was written by Justice Kennedy, the author of Lawrence and the probable swing vote on the current Court. Kennedy's opinion was joined in full by Chief Justice Roberts and by Justice Alito. Strikingly, Kennedy's opinion was also joined by Justices Scalia and Thomas, the Lawrence and Casey dissenters, although these latter two Justices did sign a brief concurrence indicating that they still favored the overruling of Roe and of Casey. (8) The opinion in Gonzales therefore commanded five votes and represents the most definitive statement to date from the Roberts Court of its approach to substantive due process methodology.
There are three significant hints in Gonzales that Justice Kennedy favors the approach of Glucksberg over Lawrence. First, his opinion cites Glucksberg approvingly twice, but it never once cites his prior opinion in Lawrence or the expansive language on substantive due process, liberty, and the sweet mystery of life that the Lawrence opinion quoted from Casey. (9) One cite to Glucksberg reaffirms the government's interest in protecting life (10) while the other quotes Glucksberg as saying that there can be no doubt the government "has an interest in protecting the integrity and ethics of the medical profession." (11) Kennedy's opinion in Gonzales therefore appears to resurrect Glucksberg and to ignore Lawrence.
Second, at the beginning of his analysis in Part II of the Gonzales opinion, Justice Kennedy acknowledges that "[t]he principles set forth in the joint opinion in [Casey] did not find support from all those who join the instant opinion;" (12) he then adds that "[w]hatever one's views concerning the Casey joint opinion, it is evident a premise central to its conclusion--that the government has a legitimate and substantial interest in preserving and promoting fetal life--would be repudiated were the Court now to affirm the judgments of the Courts of Appeals." (13) Justice Kennedy then proceeds to talk about the state's interest in fetal life with no further attention to--or discussion whatsoever of a woman's liberty interest in procuring abortions. The failure of the majority opinion in Gonzales to in any way reaffirm the abortion right derived from Roe and Casey is striking. It adds to the sense that Gonzales is a pro-judicial restraint, anti-substantive due process decision.
The third hint, and the most strikingly novel feature of Gonzales v. Carhart, is its rejection of the easy use of facial challenges rather than as-applied challenges in abortion cases. (14) This represents a departure from the Court's practice in Stenberg v. Carhart, as Ruth Bader Ginsburg's dissent points out. (15) This cautious, pro-judicial restraint approach suggests a greatly reduced role for the Court in inventing new constitutional rights that is dramatically opposed to the expansive language of Casey and Lawrence. Ginsburg's dissent notes this in frustration when she quotes Casey: "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." (16) The Gonzales Court appears to disagree with Justice Ginsburg that it is the Supreme Court's obligation to define the liberty of all. Justice Ginsburg also cites Lawrence as saying that "[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles." (17) She adds that the Lawrence Court said that "the power of the State may not be used 'to enforce these views on the whole society through operation of the criminal law.'" (18) Clearly, the Gonzales Court takes a different view from the Casey and Lawrence Courts when it comes to government enforcement of morals legislation.
Technically, the holdings of Gonzales, Casey, and Lawrence are all consistent with one another, but Kennedy's writing style is dramatically different and more restrained in Gonzales than it was in the prior cases. It is worth stressing that Justice Kennedy did not need to write the narrow opinion he did in Gonzales to reach the result he appears to have believed is correct. He could perfectly well have chosen to write a more ambivalent controlling concurrence and to have left Roberts, Scalia, Thomas, and Alito to speak for themselves. The fact that Chief Justice Roberts and Justice Alito were able to talk Justice Kennedy out of doing this and into producing an opinion that all five restraintist Justices could join is a striking achievement. If Justice Kennedy sticks with an insistence on as applied over facial challenges in future substantive due process cases, there will be a whole lot fewer new constitutional rights that will be found either by the Supreme Court or by lower federal and state courts relying on the Supreme Court's loose language. Kennedy's opinion in Gonzales seems not to regard the courts as the arbiters of our liberty but as the modest adjudicators of very concrete cases and controversies in situations where the Court absolutely must rule because the facts force it to do so. Gonzales v. Carhart, with its rejection of judicial supremacy, (19) its insistence on there being one opinion for the Court, and its narrow and modest language, is the polar opposite of Lawrence v. Texas. Gonzales should be read as the first Roberts Court substantive due process decision and as a clear indicator that the Roberts Court will henceforth produce much more modest substantive due process decisions than the late Rehnquist Court did. This modest judicial role happens to be the very one that Chief Justice Roberts and Justice Alito defended so ably in their confirmation hearings. (20)
B. Whither Justice Kennedy?
This raises rather insistently, however, the question of what Justice Kennedy himself really thinks about the role of the Supreme Court in substantive due process cases. How could the author of Lawrence and the author of Gonzales be the same person? Only Justice Kennedy knows the...
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