No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Starting with Meyer and Pierce, 1 the Court has held that
the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. 2 For instance, the right to marry is a fundamental right protected by the Due Process Clause, 3 and only
reasonable regulations of marriage may be imposed. 4 Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting compliance with support obligations. 5 In fact, any regulation that affects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny.
In 2015, in Obergefell v. Hodges, the Supreme Court clarified that the
right to marry applies with
equal force to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. 6 In so holding, the Court recognized marriage as being an institution of
both continuity and change, and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry. 7 More broadly, the Obergefell Court recognized that the right to marry is grounded in four
principles and traditions. These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families; 8 and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits. 9 With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately
stigma[tized] those couples and any children resulting from such partnerships. 10 Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed
natural, such a limitation was inconsistent with the right to marriage inherent in the
liberty of the person as protected by the Fourteenth Amendment. 11 The open question that remains respecting the substantive due process right to marriage post-Obergefell is whether the right of marriage, as broadly envisioned by the Court in the 2015 case, can extend to protect and require state recognition of other committed, autonomous relationships, such as polyamorous relationships. 12
There is also a constitutional right to live together as a family, 13 and this right is not limited to the nuclear family. Thus, a neighborhood that is zoned for single-family occupancy, and that defines
family so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the Due Process Clause. 14 And the concept of
family may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited. 15 On the other hand, the Court has held that a child born to a married woman living with her husband is that husband's child is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights. 16
The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights. 17 The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other third parties. In Troxel v. Granville, 18 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. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the
fundamental rights of parents to make decisions concerning the care, custody and control of their children, 19 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child.