Family Autonomy and Substantive Due Process

prev | next

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.

In addition to recognizing a fundamental right to marry,1 the Supreme Court has also recognized several other family-related fundamental rights related to childrearing and family autonomy. In the early twentieth century, for instance, the Court in Myer v. Nebraska struck down a state law that prohibited schools from teaching any language other than English to grade school children.2 While recognizing that the state had power to make “reasonable regulations for all schools, including a requirement that they shall give instructions in English,” the Court held that the law’s prohibition materially interfered with “the power of parents to control the education of their own” in violation of the Due Process Clause.3 Two years later, in Pierce v. Society of Sisters,4 the Court struck down an Oregon law that required parents and guardians in the state to send children between the ages of eight and sixteen to public schools.5 The Court held that the law “unreasonably interefere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” 6

Since then, the Supreme Court has considered the rights of parenthood on several occasions, at times touching upon the complex questions raised by possible conflicts between parental rights and children’s rights. In Prince v. Massachusetts, for instance, the Court upheld a state law that prohibited minors from selling any periodicals or other articles of merchandise in public places.7 In so concluding, the Court reasoned that while there is a “private realm of family life which the state cannot enter,” the state “has wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including requiring school attendance, regulating child labor, and requiring vaccination as a condition of school entry.8

In other instances, however, the Court has reiterated parents’ “fundamental liberty interest in the care, custody, and management of their children.” 9 In Troxel v. Granville, the Court evaluated a Washington State law that allowed any person to petition a court at any time to obtain visitation rights whenever visitation may serve the best interests of a child.10 There, a child’s grandparents were awarded more visitation with a child against the wishes of the sole surviving parent.11 A majority of the Court agreed that the statute was invalid, with a plurality of Justices concluding that the law’s lack of deference to the parent’s wishes infringed upon the parent’s fundamental right and contravened the traditional presumption that a fit parent will act in the best interests of a child.12 In Parham v. J.R., the Court likewise upheld a state’s voluntary civil commitment procedures that allowed minors to be committed to state mental hospitals by their parents without an adversarial hearing before an impartial tribunal.13 Such a hearing, according to the Court, would create an unacceptable intrusion into the parent-child relationship, and would be inconsistent with the traditional presumption of parental competence and good intentions.14

In addition to parental rights, the Supreme Court has also indicated that there may be a constitutional right to live together as a family,15 and that this right may not be limited to the nuclear family.16 In Moore v. City of East Cleveland, for instance, a plurality of Justices concluded that a local housing ordinance that zoned a neighborhood for single-family occupancy and defined “family” in a way that excluded a grandmother from living with two grandchildren who were cousins, violated the Due Process Clause as an “intrusive regulation of the family” without accruing any tangible state interest.17 The Court has further suggested that the concept of family may extend beyond biological relationships to the situation of foster families, although the Court acknowledged that such a claim raises complex and novel questions, and that the relevant liberty interests may be limited.18 On the other hand, the Court has upheld a state law that presumes a child born to a married woman living with her husband to be the husband’s child, defeating the right of the child’s biological father to establish paternity and visitation rights.19

1: See Amdt14.S1.6.3.5 Marriage and Substantive Due Process.
2: 262 U.S. 390 (1923).
3: Id. at 400–01.
4: 268 U.S. 510 (1925).
5: Id. at 534–35.
6: Id.
7: 321 U.S. 158 (1944).
8: Id. at 166–67. Before the Court overruled Roe v. Wade, 410 U.S. 113 (1973) in 2022, it struck down, in Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) a state law provision requiring physicians to obtain parental consent before performing an abortion on a women under eighteen. Danforth, 418 U.S. at 72. In so concluding, the Court reasoned at the time that “[a]ny independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.” Id. at 75.
9: Troxel v. Granville, 530 U.S. 57, 61 (2000).
10: Id. at 60.
11: Id. at 60–61.
12: See id. 68–69.
13: 442 U.S. 584, 597–98 (1979).
14: See id. at 610.
15: See Smith v. Organization of Foster Families, 431 U.S. 816, 862–63 (1977) (Stewart, J., concurring) ( “If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’” ).
16: See Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (plurality). Unlike the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are “intrinsic human rights.” Smith, 431 U.S. at 845.
17: Id. at 499–500. The fifth vote, decisive to the invalidity of the ordinance, was on other grounds. See id. at 513 (Stevens, J., concurring) (expressing the view that the ordinance was invalid because it constituted a taking of property without just compensation).
18: See Smith, 431 U.S. at 842–47. As the Court noted, the rights of a biological family arise independently of statutory law, whereas the ties that develop between a foster parent and a foster child arise as a result of state-ordered arrangement. See id. As these latter liberty interests arise from positive law, they are subject to the limited expectations and entitlements provided under those laws. See id. Further, in some cases, such liberty interests may not be recognized without derogation of the substantive liberty interests of the biological parents parents. See id. In Smith, the Court, without defining the specific liberty interest of foster parents, upheld certain state procedures that allowed a foster child to be removed from a foster home without a pre-removal hearing. See id. at 855–56.
19: Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no opinion of the Court in Michael H. A majority of Justices (William Brennan, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Byron White) was willing to recognize that the biological father has a liberty interest in a relationship with his child, but Justice Stevens voted with the plurality (Antonin Scalia, William Rehnquist, Sandra Day O’Connor, Anthony Kennedy) because he believed that the statute at issue adequately protected that interest.