Redefining due process analysis: Justice Anthony M. Kennedy and the concept of emergent rights.

• Author: Parshall, Lisa K.

1. INTRODUCTION

   Justice Anthony M. Kennedy's decision for the Supreme Court in Lawrence v. Texas (1) was a significant ruling in numerous respects. Lawrence overruled Bowers v. Hardwick, (2) a landmark case vindicating the power of the state to criminally proscribe homosexual conduct deemed immoral by a legislative majority. Perhaps more important than the policy victory for homosexual rights, however, was the shift in methodology reflected in Lawrence's majority opinion. Whereas Bowers had employed the traditional standards of modern due process analysis, categorizing rights as fundamental or non-fundamental and applying either strict or minimal scrutiny respectively, Lawrence neither defined the liberty interest it protected as fundamental, nor clearly applied the traditional rational basis test associated with non-fundamental rights. The ambiguity of the ruling has resulted in attempts to discern Lawrence's ramifications for future liberty claims. There is substantial disagreement over whether Lawrence merely clarifies that discriminatory animus is not a legitimate state interest under the traditional rational basis test, whether it embraces a new form of heightened rational review, or whether it irrevocably alters the traditional tiered scrutiny standard that is the foundation of the Supreme Court's modern due process and equal protection jurisprudence.

   While Justice Kennedy has always supported the doctrine of substantive due process, his increasing acceptance of a methodology that gives an expansive interpretation of liberty shaped by evolving societal standards is detailed in Part II. Part III explores various interpretations of Lawrence's impact on due process analysis by focusing on lower court applications and scholarly analyses of the ruling. Part IV offers an alternative interpretation that is informed by a brief examination of Kennedy's Ninth Circuit Court of Appeals jurisprudence involving gay rights. This part of the article argues that, rather than jettisoning the tiered review of modern due process analysis, Justice Kennedy may be carving out a new category of rights that are entitled to the Court's heightened solicitude. These rights may be classified as emergent rights--rights that while perhaps not yet sufficiently well-grounded in history and tradition as to be considered fundamental have nevertheless emerged from "the continuing traditions of our society" or are so closely connected "with interests recognized as private and protected" as to be entitled to more than minimal review. (3) Part IV also recognizes that the disagreement that has evolved between Justice Kennedy and Justice Antonin Scalia over homosexual rights is part of the larger, ongoing methodological debate between adherents of originalism and proponents of a "living Constitution" over the proper method of constitutional interpretation.

2. JUSTICE KENNEDY AND SUBSTANTIVE DUE PROCESS

   1. An Evolving Jurisprudence

      With regard to expressing support for substantive due process, Justice Kennedy has always been distinct from his conservative colleagues. There are deep-rooted jurisprudential foundations for his broad interpretation of liberty that have gravitated him toward his particular support of gay rights. (4) Indeed, questioned extensively on privacy and liberty rights throughout his confirmation proceedings, he explicitly stated that "there is a substantive component to the due process clause" and that "the value of privacy is a very important part of that substantive component." (5) "Liberty," in his view, was intended to be a "spacious phrase" central to which was the belief "[t]hat ... there is a zone of liberty, a zone of protection, a line that is drawn where the individual can tell the Government: Beyond this line you may not go." (6)

      Although he expressed a consistent preference for the term "liberty" over either "privacy" or "unenumerated rights," he nevertheless seemed to view privacy as a component of liberty. (7) Thus, when asked whether he believed the Constitution includes right to marital privacy, Justice Kennedy answered affirmatively. (8) "IT]he concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage." (9) When asked what he regarded as the outer boundaries of these substantive rights, Justice Kennedy responded that "we are very much in a stage of evolution and debate" over their exact parameters--a debate to which, in his view, "the public and the legislature have every right to contribute." (10)

      As a member of the Supreme Court, Justice Kennedy consistently reflected this willingness to find substantive protection in the Due Process Clause of the Fourteenth Amendment. Thus, he has voted to preserve the privacy and liberty interests that the Court had previously announced. (11) At the same time, however, Justice Kennedy's jurisprudence has subtly evolved. Whereas he initially displayed a more cautious, constrained approach to adjudicating due process claims and was reluctant to recognize new fundamental rights, (12) he has recently adopted a methodology that more appropriately reflects his reluctance to limit substantive due process to the confines of narrow historical inquiry. Concurring in County of Sacramento v. Lewis, Justice Kennedy reiterated that "[i]t can no longer be controverted that due process has a substantive component." (13) He cautioned, however, that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." (14) This observation would later serve as the crux of his opinion in Lawrence and his rejection of a historically constrained approach to identifying protected liberty interests.

      Although he concurred in the judgment in Michael H. v. Gerald D., (15) Justice Kennedy signaled discomfort with the restrictive methodology used by the majority in denying the asserted liberty interest in that case. (16) Justice Kennedy signed onto Justice Sandra Day O'Connor's concurrence that objected to the majority's assertion that the historical analysis used to identify traditional liberty interests must be conducted at "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." (17) By distancing themselves from the majority opinion's approach, Justices Kennedy and O'Connor indicated their unwillingness to "foreclose the unanticipated by the prior imposition of a single mode of historical analysis." (18)

      Despite his reluctance to cabin the scope of substantive due process displayed in both Lewis and Michael H., Justice Kennedy seemingly shifted methodologies when he ascribed to the majority opinions in Vacco v. Quill (19) and Washington v. Glucksberg (20)--cases which upheld state laws criminalizing physician-assisted suicide. In Glucksberg, the Court concluded that "the asserted 'right' to assistance in committing suicide [was] not a fundamental liberty interest protected by the Due Process Clause." (21) Joining the Chief Justice, Kennedy committed himself to the proposition that the

       established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental

      rights and liberties which are, objectively, "deeply rooted in

      this Nation's history and tradition," and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed[.]" Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. (22)

      Under Glucksberg's specific test, the discovery of new rights was virtually foreclosed; fundamental status was preserved for only those rights firmly embedded in the nation's history and tradition. By joining Glucksberg, Justice Kennedy seemed to move away from a generous interpretation of liberty rights, embracing a more restrictive methodology instead.

      Yet, Justice Kennedy continued to entertain the potentiality of evolving societal trends when considering the scope of due process claims. When the Court was asked in Troxel v. Granville to uphold state laws granting visitation privileges to grandparents, it conceded that parental liberty "is perhaps the oldest of the fundamental liberty interests recognized by this Court." (23) Given the historical acceptance of that right, the majority was unwilling to announce that the Due Process Clause protected the competing interest that grandparents had in securing visitation privileges against parental consent. (24) Justice Kennedy dissented because, unlike the majority, he was willing to entertain the expansion of visitation rights. He expressed concern that the state visitation law presumed traditional families to be the norm, thereby discounting the importance of non-parental relationships to a child. (25) Given the extent to which the conventional understanding of familial relationships had evolved, he believed that more careful consideration needed to be given as to whether the Court's usual deference to parental liberty needed to be revised. (26)

      Justice Kennedy's sensitivity to evolving social trends was apparent as well in his refusal to overturn Roe v. Wade. (27) By the time he had joined the Court in 1988, it was widely believed that one more vote was all that was necessary to rescind Roe's protections. In the first several abortion-related cases in which he participated, he voted in favor of the states' asserted interests in regulating abortion. (28) However, when the opportunity to dispense with Roe was squarely presented, Justice Kennedy demurred. In Planned Parenthood of Southeastern Pennsylvania v. Casey, (29) the Court's three moderate conservatives-Justices O'Connor, Kennedy, and Souter--co-authored an opinion that modified the framework of Roe while...