Document Type


Publication Title

Touro Law Review

Publication Date

Winter 1998


As we all know and will recall, the Supreme Court decided to hear two cases precisely dealing with a narrow issue, namely,doctor assisted suicides. Ironically, the two cases are what law professors dream about encountering in practice, because one case involves substantive due process, the case out of Washington, and the other case raises the issue of equal protection. In any event, what you have to do, and as the court did for us here, is go through very detailed descriptions of these two different doctrines. However, it is not easy to distinguish between substantive due process and equal protection. On the one hand, the Supreme Court cases dealing with equal protection, teach us that under the strict scrutiny analytical framework, any time a fundamental right is violated, it is subject to strict scrutiny under the Equal Protection Clause. On the other hand, we may have substantive due process analysis which is quite broad. The Supreme Court noted in Meyer v. Nebraska, that "liberty" protected by the Due Process Clause includes the right of an individual "to marry, establish a home and bring up children to worship God according to the dictates of his own conscience, and generally to enjoy those principles long recognized at common law as essential to the orderly pursuit of happiness by free men." In essence, therein lies the difference between a fundamental right under the equal protection clause and your right under the rigors of substantive due process analysis. Some years ago the Supreme Court heard a case involving a person who wanted to get married according to Wisconsin law. In Wisconsin, before a person with a child support obligation can become married, he had to obtain permission from the judge in order to comply with Wisconsin state law on the issue. The Supreme Court declared the Wisconsin statute unconstitutional and reasoned that the right to marry is fundamental." In other words, if you have to ask for permission before you exercise that right, it is a violation of equal protection.